Although claims for delay damages in construction litigation are fairly common, they are notoriously difficult and expensive to prosecute or defend. They almost always require the retention of scheduling, and potentially accounting, experts to opine on the extent (if at all) to which delays occurred, the cause of the delays, and the effect of the delays on various categories of financial performance. Because delays often escape precise proof, experts employ various methods for approximating them (e.g., the “measured mile,” “as-built,” “windows analysis,” etc.), invariably embroiling the litigation in a costly and unpredictable battle of experts.
Against that backdrop, it comes as no surprise that “no-damages-for-delay” provisions are a common fixture in modern construction contracts. The goal of such provisions is to prevent claims for delay damages from ever being prosecuted (and the attendant costs from being incurred) by making clear that the only remedy available to a party aggrieved by delay is an extension of time. See Gherardi v. Trenton Bd. of Educ., 53 N.J. Super. 349, 360-61 (App. Div. 1958) (finding no-damages-for-delay clause was a complete bar to plaintiff’s claim where the contract anticipated the type of delays at issue and specified that an extension of time was the sole remedy). Thus, a properly drafted, enforceable, no-damages-for-delay provision can cause the dismissal of delay claims prior to trial, or deter litigation of such claims altogether. See, e.g., Perini Corp. v. Greate Bay Hotel & Casino, 129 N.J. 479, 515 (1992) (advising Perini that had it bargained for a no-damages-for-delay clause it could have avoided leaving “the resolution … to third-party arbitrators.”).
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