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No To Delay Damages, Yes To Equitable Adjustment

Wednesday, February 01, 2012 03:29 am


Delay Damages -- Equitable Adjustment

Southern Seeding Service, Inc. v. W.C. English, Inc., 2011 N.C. App. Lexis 2432 (Dec. 6, 2011)

A trial court confused two distinct risks when it improperly found that a no-damages-for-delay clause negated another clause allowing for equitable adjustment.

The prime contractor on a North Carolina Department of Transportation project hired W.C. English, Inc. (English) to perform grading and grassing work. English in turn hired Southern Seeding Service, Inc. (Seeding) to perform the grassing work. Seeding encountered significant difficulty performing in a timely manner due to English's alleged poor management of the erosion control work. As a result, Seeding's work continued past the project's scheduled completion date of July 1, 2007. Seeding sought equitable adjustment for its increased costs incurred after that date.

A trial court denied Seeding's requested relief, finding a conflict between two of the English-Seeding subcontract's clauses, one a no-damages-for-delay clause and the other an equitable adjustment clause. The trial court essentially ruled that the limitations of the no-damages clause applie [...]

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