Defenses to No Damages for Delay Provision

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No damages for delay clauses are generally upheld in court.  However, Florida case law provides that there are certain circumstances that may allow a contractor or subcontractor to pursue delay damages despite the existence of a no damages for delay clause in the construction contract.  See Triple R. Paving v. Broward County, 774 So.2d 50 (Fla. 4th DCA 2000); Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, 238 So.2d 458 (Fla. 2d DCA 1970).  For example, if an owner has acted in bad faith, defrauded the contractor, or actively interfered with the contractor’s ability to construct a project, then a no damages for delay provision will be deemed ineffective.  Newberry Square Dev. Corp. v. Southern Landmark, Inc., 578 So.2d 750 (Fla. 1st DCA 1991).
 

Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

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