Recent "Damages for Delay" case in Kansas involving......the attorneys at MidwestConstructionLaw.com

Midwest Construction Law attorneys Josh Dickinson and Barry Pickens recently obtained a victory before the United States Court of Appeals for the Tenth Circuit in a case involving a construction client from the Pittsburg  area.  (opinion may be found at http://www.ca10.uscourts.gov/opinions/08/08-3076.pdf).  The underlying lawsuit involved the application of a "no damage for delay" provision in a large-scale construction project fraught with several lengthy delays.  At the District Court level in Kansas, the Court ruled that the "no damage for delay" provision was fully enforceable.  The Tenth Circuit, however, reversed the decision on several procedural fronts.  The Court of Appeals sent the case back to the District Court to address several arguments advanced, including whether the disagreement fell outside of the scope of the provision, whether the general contractor was estopped from asserting the provision based upon certain statements made during the course of the project, and whether the provision had been waived by the general contractor. 

The application and enforceability of "no damage for delay" clauses vary from state to state.  These clauses should be carefully considered by owners, contractors and subcontractors, both before the contract is signed and after a significant delay occurs.