Monday, October 20, 2014

No-Damages-For-Delay Provision Does Not Shield Owner from Liability for Deliberate Interference With a Contractor’s Work.

In a much-anticipated decision, the Texas Supreme Court has ruled in favor of a general contractor seeking to recover funds withheld by an owner for delays that the jury found were caused by the owner’s deliberate and wrongful interference. The Court addressed the effect of a no-damages-for-delay provision in the construction contract, as well as whether language in the waivers the contractor submitted for progress payments also waived the contractor’s claims for delay damages. Finally, the Court analyzed at length whether the applicable statutes waived the governmental immunity of the owner, a local port authority.


Zachry Construction Corporation agreed to construct a wharf for the Port of Houston Authority for over $62 million. The construction contract gave Zachry control over the means and methods of the work. It also stated that Zachry could not recover any damages from delays in the work, even if the delays resulted from “the negligence, breach of contract or other fault of the Port Authority.” The parties agreed to a provision that permitted the Port to recover its attorneys’ fees from Zachry if Zachry brought an unsuccessful claim under the contract.

As part of the construction of the wharf, Zachry planned to utilize an innovative technique that involved creating a long U-shaped berm made of frozen earth that would extend into the water to surround the worksite. Water would then be removed from the worksite, allowing Zachry to work “in the dry” for much of the construction work. Zachry believed that this technique would make the work less expensive, complete it more quickly, and provide environmental benefits to the Port.

Nine months into the project, the Port asked Zachry to add another section to the wharf, expanding the scope of the project by almost $13 million. To continue to meet the time deadlines in the project, Zachry proposed building a cutoff wall through the middle of the worksite, splitting the work area into two parts. Though the Port had reservations about this plan, it did not raise its concern before the parties executed the change order.

Two weeks later, the Port ordered Zachry to revise its plans to remove the cutoff wall. This forced Zachry to finish only a portion of the wharf “in the dry,” and then to remove the wall. The remainder of the project had to be finished “in the wet,” resulting in a delay of about two and a half years.

Zachry sued the Port several weeks after its refusal to allow construction of the cutoff wall. Zachry claimed about $30 million in delay damages. The Port argued that the contract precluded delay damages. The trial court disagreed, finding that the provision unenforceable if Zachry showed that the Port’s intentional misconduct caused the delay.

Zachry also sought to recover about $2.36 million in contract funds withheld by the Port as liquidated damages for delays. In response, the Port argued that Zachry had waived its claims by submitting applications for progress payments that included releases of certain claims. The trial court found the waiver language ambiguous and submitted the issue of its meaning to the jury.

In its defense, the Port contended that governmental immunity precluded Zachry’s claims. The Port also counterclaimed for close to $1 million in repair costs to remedy defective wharf fenders installed at the project, and for all of its attorneys’ fees under a contract provision that permitted the Port to recover all attorneys’ fees for any of Zachry’s claims that were not successful.

After a trial, a jury found that the Port breached the contract by rejecting the cutoff wall design, causing about $18.6 million in delay damages. According to the jury, the delay resulted from the Port’s “arbitrary and capricious conduct, active interference, bad faith and/or fraud.” The jury found that Zachry had not released its claim to the withheld funds, but also found in favor of the Port on the counterclaims for defective work.

On appeal, the court of appeals reversed the judgment in favor of Zachry. It found that the no-damages-for-delay provision barred any recovery of delay damages, regardless of whether the Port had intentionally or arbitrarily caused the delays. The court also held that the progress-payment releases were unambiguous and precluded any claims for the withheld funds. Finally, the court of appeals rendered judgment in favor of the Port on its claim for attorneys’ fees, awarding the Port almost $10.7 million.

Summary of the Texas Supreme Court’s holdings

The Texas Supreme Court reversed the court of appeals, holding that:
  1. The no-damage-for-delays language did not apply, as a matter of public policy, to claims for delays caused by the owner’s intentional or arbitrary interference;
  2. The actual waiver that the contractor signed for the progress payments was not ambiguous, and it did not waive the claims for the withheld claims;
  3. Governmental immunity did not bar the contractor’s delay claims;
  4. The Port was entitled to recover on its defective-work claims; and
  5. The Port was not entitled to the award of attorneys’ fees.

Though the decision was 5-4, the dissent agreed with the majority on points 2 and 4, above. The dissent primarily concerned the governmental immunity issue (point 3), and thus did not reach the public-policy issue (point 1).

A contractor cannot waive claims for delays caused by the owner’s intentional or arbitrary interference

The Court found the no-damages-for-delay provision unenforceable against delay claims based on the owner’s intentional or reckless misconduct. While a contractor generally may agree to assume the risk of construction delays, exceptions to their enforcement apply where the delay resulted from the owner’s fraud, misrepresentation, or bad faith, or where the delay resulted from the owner’s active interference or other wrongful conduct, which includes arbitrary acts, willful misconduct, acting without due consideration, and acting in disregard of other parties’ rights. As the jury found that the Port caused the delays through “arbitrary and capricious conduct, active interference, bad faith and/or fraud,” the Court found that the Port could not enforce the provision against Zachry.

The Court noted that it was “doubtful” that the waiver of delay damages due to the Port’s “negligence, breach of contract or other fault” would even apply to deliberate, wrongful misconduct. It cited an amicus brief from the Associated General Contractors of Texas, which pointed out that contractors can (and often do) include in their estimates potential delaying events such as quality and completeness of plans and specifications, material shortages, weather issues, and soil conditions. These foreseeable issues can be taken into account using the contractors’ years of experience, education, and training. But no contractor can accurately assess potential delays “that may arise due to an owner’s direct interference, willful acts, negligence, bad faith fraudulent acts, and/or omissions.”

Under Texas law, contractual provisions seeking to exempt a party from tort liability for its own future intentional or reckless misconduct are void as against public policy. The Court applied the same rule to contract liability, to avoid “incentiviz[ing] wrongful conduct and damag[ing] contractual relations.” Even though Texas, unlike many other states, does not impose a duty of good faith and fair dealing in the performance of all contracts, the Court found such a duty unnecessary to prohibit provisions allowing a contracting party to evade liability for deliberate misconduct in the future.

A contractual requirement for the contractor to waive claims does not prevail over the actual language of the waivers signed

Next, the Court reversed the court of appeals’ ruling that Zachry had waived its claims for the $2.36 million that the Port withheld as liquidated damages. The Court disagreed with the trial court’s finding that the waiver language was ambiguous, instead holding that language unambiguously did not include Zachry’s claims. In particular, the progress-payment application released claims on “the portion of the Work completed and listed on” the invoice. The liquidated damages withheld by the Port, in contrast, were for delayed work that had not been completed, rather than work already finished.

Interestingly, the Court admitted that Zachry’s underlying construction contract could be read to require Zachry to waive such claims when it applied for progress payments. However, the language in the waiver Zachry actually submitted (whether it complied with the contract or not) did not encompass the claims for the withheld funds.

The Texas Supreme Court narrowly held that there was no governmental immunity for the contractor’s delay claims under these circumstances

Finally, a large portion of the majority, and the entire dissent, focused on whether the Texas legislature had waived the Port’s governmental immunity for Zachry’s delay claims. A more detailed examination of this issue is beyond the scope of this post, but the dispute concerned a statute waiving the governmental immunity of a local governmental entity for a contractor’s claims for its “balance due and owed . . . under the contract.” The majority and the dissent agreed that this issue was jurisdictional, but disagreed on whether delay damages were “owed under the contract” where, as here, the contract expressly prohibited delay damages. The majority found that such damages fell within the scope of the waiver.

Parties to construction contracts could use the public-policy exception to avoid damage waivers

This decision could significantly narrow the enforcement of contract provisions limiting recovery of damages in Texas. With some exceptions, Texas has prohibited contractual provisions that require a contractor to indemnify another person for property damage resulting in whole or in part from the fault of the other person, its agent, or its employee. Tex. Ins. Code § 151.102. The Zachry decision adds a public-policy exception invalidating waivers of damages caused by intentional or reckless misconduct. Contractors could argue that this exception applies to more than delay claims. For example, a waiver of consequential damages could be invalidated if a general contractor showed that the owner’s intentional or reckless misconduct caused the damages. Moreover, the Court’s reasoning might apply to conduct that is less culpable than recklessness, such as acting “without due consideration,” arbitrarily, or “in disregard of other parties’ rights.”


  1. Thank for a very well-written summary of this important case. You may be interested in a decision handed-down last week from the Georgia Supreme Court in which a surety was attempting to sue a state agency. The surety had to complete a prison project pursuant to a performance bond when a roofing company was denied access to the project; when the surety bought suit against the state for the damages resulting from the state's failure to allow access, the state of Georgia claimed that the suit was barred by the Doctrine of Sovereign Immunity. The Georgia Supreme Court ruled in favor of the surety. For a better analysis, please look at our recent blog post at:

    1. Mark -- thank you for your comment. I will take a look at the Georgia case as well.