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Parties Claim 'Disruption'---Not 'Delay'--- To Clear No-Damages Hurdle

Thursday, July 27, 2017 04:52 am


Many courts have distinguished between damages for "delay" and damages for other performance progress disruptions. That distinction is critical to parties bound by a no-damages-for-delay contract provision: Will a court strictly construe the clause---or allow compensation for something-other-than-delay damages?

That was a key question in the recent case, Suntech of Conn., Inc. v. Lawrence Brunoli, Inc., 2017 Conn. App. Lexis 210 (May 23, 2017). Suntech of Connecticut, Inc. (Suntech) was a subcontractor on a project to construct a technology center at Naugatuck Valley Community College, owned by the state of Connecticut. In a $7-million claim, Suntech alleged, among other things, that it suffered money damages as a result of being unable to complete its project work until two years after the completion date.

No-damages-for-delay clause: Paragraph V of the parties' agreement provided: "The [c]ontractor agrees to begin, prosecute and complete the entire work specified by the [state] in an orderly manner so that the [s]ubcontractor will be able to begin, prosecute and complete the work described in this subcontract. ... The subcontractor agrees not to assess any delay damages or claims against [the contractor] unless the Owner accepts responsibility and payment." (Emphasis added.)

Suntech argued, first at trial and then again in this appeal, that its damages were caused by the contractor's "hindering" and "interfering" with its ability to complete its work. It contended that the no-damages-for-delay provision did not apply to these kinds of damages. To bolster its cause, Suntech asked the court to adopt the ruling in Central Ceilings, Inc. v. Suffolk Construction Co., supra, 2013 Mass. Super. Lexis 230 (2013), which clearly distinguished "delay" from "hindrance" and "interference."

Central Ceilings: Time lost---or efficiency lost?

Like Suntech, Central Ceilings involved a construction project on a college campus that, typically, relied on a planned sequence of activities. The Massachusetts trial court ruled that general contractor Suffolk Construction Company (Suffolk) failed to coordinate the work of various trades on the job. For instance, subcontractor Central Ceilings, Inc. (Central) was unable to perform its framing work on schedule because Suffolk hadn't adequately coordinated the precursor erection of the steel.

As a result, to complete its work, Central was forced to: demobilize and remobilize, increase its manpower and supervision, lo [...]

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