HERBERT F. DARLING, INC.
Engineering Contractors
Since 1940
LEGAL
HERBERT F. DARLING, INC.
Engineering Contractors
Since 1940
Serving Upstate NY and Western PA
IN HOUSE DESIGN FOR SHORING
AND COFFERDAMS
-PILE DRIVING -AUGERCAST PILES
-COFFERDAMS -SEWER and WATER LINES
-DAMS -MARINE CONSTRUCTION
-DRILLED SOLDIER PILE WALLS
-INDUSTRIAL FOUNDATIONS
Serving Upstate NY and Western PA
531 FILLMORE AVE TONAWANDA, NY 14150
IN HOUSE (716) 632-DESIGN 1125 FAX FOR (716) 632-SHORING
0705
eMail piling@HFDarling.com
AND COFFERDAMS
-PILE DRIVING -AUGERCAST PILES
-COFFERDAMS -SEWER and WATER LINES
-DAMS -MARINE CONSTRUCTION
-DRILLED SOLDIER PILE WALLS
-INDUSTRIAL FOUNDATIONS
531 FILLMORE AVE TONAWANDA, NY 14150
Serving the Industry
since 1986!
(716) 632-1125 FAX (716) 632-0705
eMail piling@HFDarling.com
■ Geotechnical Engineering
■ Soil and Rock Mechanics
■ Shoring and Underpinning Design
■ Pile Load Testing and Inspection
■ Vibration Monitoring
■ Construction Materials Testing
■ Third Party Inspections
■ Survey Layout
70 Pleasant Hill Road, Mountainville, NY 10953
NY • NJ • CT • VA • FL • AZ • NM • CA • TX
TEL: 800-829-6531 • WWW.TECTONICENGINEERING.COM
For starters, several states have passed laws curtailing
the application of the no damages for delay clause and creating
exceptions to the rule. Specifically, Arizona, California,
Colorado, Massachusetts, Missouri, New Jersey, New York,
North Carolina, Ohio, Oregon, Rhode Island, Virginia, and
Washington have passed various types of legislation limiting
or precluding the enforceability of no damages for delay
clauses.4 Other jurisdictions have recognized one or more exceptions
in case law to the enforceability of no damages for delay
clauses, including Alabama, Connecticut, Delaware, Florida,
Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky,
Louisiana, Maryland, Michigan, Mississippi, Nebraska,
Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Utah,
Washington, D.C., and Wisconsin.5
One of the most common exceptions to no damages for delay
clauses that courts have recognized is the exception for instances
of fraud, misrepresentation or bad faith by the owner. This exception
covers instances such as the owner promising to provide
something necessary to begin work, such as equipment or the
completion of a prerequisite scope of work, but failing to do so,
resulting in delays to the contractor.⁶
Another exception is for cases of active interference by the
owner, which some courts have described some action by the
owner going beyond, “a simple mistake, error in judgment, lack of
total effort, or lack of complete diligence.”
Other courts have described it as a, “knowing delay . . . which
transcends mere lethargy or bureaucratic bungling,” such as the
premature issuance of a notice to proceed with knowledge that the
job was not ready for work to proceed.⁷ Some courts have also recognized
an exception for instances of unreasonable delay by events
within the owner’s control, which is often construed by courts to
mean a delay so lengthy as to constitute the owner’s abandonment
of the contract.⁸
Finally, there may be an exception for delays of such a magnitude
or character that they could not have been contemplated by
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