No Damage for Delay Clauses in Ohio

posted by Michael Fortney  |  Dec 31, 2009 1:23 PM in Construction Law

Pursuant to Ohio statutory law, "no damage for delay" clauses are enforceable in Ohio, unless the reason for the delay is the result of the owner's [or contractor's] act or failure to act. Ohio Revised Code §4113.62.

The Franklin County Court of Appeals recently held that the State of Ohio's standard "no damage for delay" clause in its contract documents is unenforceable when the owner caused the delay. In so holding, the Court rejected the State's argument that amages for acceleration, lost productivity and inefficiency were not "delay damages" as that phrase was used in the statute.  The Court next rejected the State's argument that the contractor waived its right to damages because it failed to request an extension of time as required by the contract. The contractor was not required to seek an extension of time, because 4113.62 prohibits limiting a contractor's remedies to an extension of time.  Cleveland Construction, Inc. v. Ohio Public Employees Retirement System, 2008 Ohio 1630 (10th Dist., 2008).

Defective plans and specifications are the leading reasons for owner-caused delay damages and time extensions in Ohio. To recover delay damages, a contractor must establish that (a) the owner breached the contract, (b) the breach caused a delay to the contractor's performance, and (c) the contractor was damaged.

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