“No Damage for Delay” Decision Reversed
Kegler Brown Construction Newsletter October 1, 1996
As reported in a previous issue (May, 1996), Judge Watson of the Franklin County Common Pleas Court threw out a contractor's delay claim against the Reynoldsburg Schools, on summary judgment, due to a "no damage for delay" provision, even though the contractor had argued that the delays were not foreseeable at the time of contracting. The matter was appealed and an amicus brief filed by AGC-Ohio in support of the contractor's position.
On June 23, 1996, the Franklin County Court of Appeals reversed Judge Watson's decision by ruling that the trial Court must determine the extent and magnitude of the accumulation of delay and whether or not this was foreseeable, before determining whether a "no damage for delay" provision is enforceable. This appellate decision is consistent with other Ohio law on the subject and gives contractors and subcontractors an argument as to why a "no damage for delay" provision should not bar their delay claim.
However, the best defense to a "no damage for delay" provision is to refuse to bid such work or sign such a contract, or in the alternative, to pass legislation making these provisions void as against public policy.