Federal District Court in Florida Considers Damages (Including Delay Costs and Attorneys Fees) and Defenses Available Under the Miller Act

United States ex rel Jack Daniels Construction, Inc. v. Liberty Mutual Insurance Company, 2015 U.S. Dist. LEXIS 172189 (M.D. Fla. Dec. 28, 2015)

This action arises from the construction of the Joint Intelligence Technical Training Facility at Goodfellow Air Force Base in San Angelo, Texas (the “Project”).  Plaintiff Jack Daniels Construction, Inc. (“Jack Daniels”) was a sub-subcontractor who was retained by the subcontractor, Ragghianti Foundations III, Inc. (“Ragghianti”), to perform certain concrete work at the Project.  Jack Daniels commenced its work on the Project in late August of 2011, but it was demobilized by early September as a result of problems encountered by Ragghianti and the prime contractor.  Jack Daniels resumed its work in late October, but by November of 2011, the Project was behind schedule. Continue reading “Federal District Court in Florida Considers Damages (Including Delay Costs and Attorneys Fees) and Defenses Available Under the Miller Act”

ABA Section of Litigation Regional CLE Workshop on Handling a Construction Failures Case Scheduled for June 3, 2016

The ABA has scheduled a half-day Regional CLE Workshop on Handling a Construction Failures Case for Friday, June 3, 2016, at Pepper Hamilton LLP’s offices at 3000 Two Logan Square, 18th & Arch Streets, Philadelphia, PA.

This program will discuss legal aspects of handling a construction failure case, focusing on a building collapse during construction as the main model, from start to finish, including securing the project site, interacting with government agencies, preserving evidence, bases of liability, working with experts and trial considerations. Continue reading “ABA Section of Litigation Regional CLE Workshop on Handling a Construction Failures Case Scheduled for June 3, 2016”

Do No-Damage-for-Delay Clauses Bar Acceleration Claims?

Robert E. Heideck, Partner, & Kenneth A. Cushing, Associate, Pepper Hamilton LLP

Time is money in construction, and project delays can cause contractors to incur substantial additional costs. To avoid responsibility for paying these costs, project owners often include a no-damage-for-delay (NDFD) clause in the contract, where legally permitted.[1] An example of a typical NDFD clause reads as follows:

The Contractor agrees to make no claim for damages for delay in the performance of this contract occasioned by any act or omission to act of the [Owner] or any of its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herein.[2]

An NDFD clause may bar a contractor from recovering delay damages. But, in most states, the enforceability of NDFD clauses is also subject to exceptions.[3] As shown in the clause quoted above, NDFD clauses often provide that the exclusive remedy for delay is an extension of time. The issue is whether an NDFD clause, which provides a time extension as an exclusive remedy, also bars claims for acceleration. As explained below, there are several approaches to this issue. Continue reading “Do No-Damage-for-Delay Clauses Bar Acceleration Claims?”