Overview Of No Damages For Delay Clauses In Florida

Parties enter into construction contracts to define the project and protect their interests, but also to allocate risk in the face of unexpected events. In recent years, it has become routine for Florida property owners, contractors, and other parties to include a “no damage for delay” (NDFD) clause to further clarify risk. The terminology itself explains how these provisions work: A no damage for delay clause bars general contractors and subcontractors to seek compensation for their financial losses when the project falls behind. Florida courts have held that these clauses are enforceable under specified conditions.

An NDFD aims to protect the property owner from claims caused by many types of disruptions, including delays within the control of the parties. Depending on your role in the construction project, it is essential to understand how an NDFD clause affects your interests. You can rely on a Florida delay claims lawyer to advise you on details, but an overview of no damage for delay clauses is helpful. 

Factors That Impact Enforceability 

There is no Florida statute specifically addressing NDFDs, so courts turn to case precedent to determine whether such a provision is enforceable. Judges will review three factors regarding no damage for delay clauses:

1. Contractual Language: The parties must be very specific in what types of delays are covered by an NDFD; the more details they include, the more likely it is that a court will find that the parties anticipated the delay.
2. Nature of the Damage: Delays may lead to losses in terms of time and/or money, and a judge will assess how these factors impact the project overall.
3. Type of Delay: Courts are more likely to find a no damage for delays clause enforceable when the delay is one that could be reasonably anticipated by the parties.

If a court finds the NDFD enforceable, this means the general contractor is barred from obtaining compensation from the property owner. However, it could also result in a subcontractor being prohibited from recovering from the GC for losses. 

Exceptions to No Damages for Delay Clauses 

Even if the NDFD is found to be enforceable, it may not apply according to surrounding circumstances. Exceptions include:

• The party that enjoys protection from the NDFD cannot interfere with performance or engage in other misconduct related to the project.
• If a party protected by a no damage for delay clause engages in fraudulent misconduct, it cannot rely on the provision to avoid reimbursement.
• Closely related to fraud is willful concealment, so a party cannot fall back on an NDFD clause for hiding information that impacts timely performance. 

Discuss Details with a Florida Delay Claims Attorney

This summary is informative on the basics of no damage for delay clauses, but skilled legal representation is critical for disputes. To learn more about enforceability and your options, please contact Linkhorst & Hockin, P.A. at our offices in Jupiter, FL. You can schedule a consultation with one of our delay claims lawyers by calling 561-626-8880 or visiting us online.

Resource:

scholar.google.com/scholar_case?q=774+So.+2d+50+&hl=en&as_sdt=40006&case=16516220909946790845&scilh=0