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You Can't Claim 'we Didn't Really Mean It' To Get Out Of A No-damage-for-delay Clause

Friday, July 04, 2008 03:08 pm

You Can't Claim 'we Didn't Really Mean It' To Get Out Of A No-damage-for-delay Clause

In many states a no-damage-for-delay clause can be broken in cases of extenuating circumstances, such as fraud or owner interference. Not so in California, where the clause is relatively iron-clad. Even if it weren't, however, the subcontractor in this case faced an uphill -- and ultimately fruitless -- battle to squeeze out damages for a government-caused delay.

In 1996, the United States Air Force (the government) awarded Harper/Nielsen Dillingham Builders, Inc. (Harper) a $17.7 million contract for demolition and construction of housing units. Subsequently, Harper hired subcontractor Karleskint-Crum, Inc. (KCI) to perform landscape and irrigation services on the project for a total subcontract amount of $720,500. The subcontract, governed by California law, included a no-damage-for-delay clause stating that KCI was entitled to a time extension but no further damages for any delays caused by Harper or the government -- and that weather-caused delays or additional work would "not entitle Subcontractor to any extras whatsoever."

To use Severin you must prove liability

During the project, another contractor under the government's control experienced difficulty removing underground storage tanks (USTs). This caused KCI to complete its work more than 200 days late and pushed the project into the rainy season which resulted in additional damage to the landsca [...]

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