April 21, 2008

EDITOR'S NOTES

This week’s first two cases provide an interesting dichotomy in states’ views on no-damage-for-delay clauses. In Ohio, the clauses have been rendered unenforceable by statute. A court ruled that this also applies to any attempt to disclaim liability for acceleration or lost productivity costs (which are just other forms of delay damages). In New York, the clauses are generally enforceable and one court would not even allow a jury to hear evidence that an exception might apply.

The other case faults a contractor that failed to take the steps necessary to terminate a subcontractor. Because of the lapse in protocol, the contractor could not collect from the performance surety.

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