Supreme Court Declines Appeal in Landmark “No Damage for Delay” Case

Kegler Brown Construction Newsletter

On September 10, 2008, the Ohio Supreme Court declined to hear the appeal of OPERS in the case of Cleveland Construction v. OPERS.

This means that the Court of Appeals decision stands, which allows contractors to recover on acceleration and delay claims, even when the contractor has not sought a time extension. The Court of Appeals broadly interpreted Ohio’s Fairness in Construction Contracting Act, which makes all “no damage for delay” provisions unenforceable, and found that the Act provided relief even when the contractor’s damages are limited to acceleration or loss of efficiency.

This case minimizes the impact of the Dugan & Meyers case, which was decided under a contract entered into before the effective date of the Fairness in Construction Contracting Act. A likely impact of this decision will be to encourage claims when a project does not go according to plan and owners will be less able to defend them on procedural grounds.