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ConstructionPro Week, Volume: 3 - Issue: 41 - 10/10/2014

Must Intentional Interference Be Intentional?

By Bruce Jervis

 

Active or intentional interference by the project owner with the contractor’s work is a widely recognized exception to the enforceability of no-damage-for-delay clauses. The Texas Supreme Court recently joined the national trend in expressly adopting this exception for private and public construction contracts alike. In so doing, however, the court left open the question of intent.

 

The question is whether the project owner must intend to delay or disrupt the contractor’s work, or, does the owner merely need to take an affirmative step that has the foreseeable effect of delaying the contractor? The Texas court said public policy prohibits a party from intentionally injuring the other party to a contract. The court spoke of “willful acts” and “bad faith.” The court then muddied the water by referring to “negligence” and “omissions.”

 

The public policy rationale for voiding no-damage-for-delay clauses in the face of owner interference seems to require an intention to harm. Yet, that is not the law in all states. And, as a practical matter, it is far more likely that a project owner acted in its own self interest with mere indifference to the impact on the contractor.

 

What is your opinion? Should a no-damage-for-delay clause be negated only when there is mal intent on the part of the project owner? Or, is it the impact, not the intention, of the act that is important? I welcome your comments.

 

COMMENTS

In my opinion,

It's more an issue of control.

When an owner disrupts a contractors work, then the issue of whether or not the contractor is now an employee of the owner becomes an issue.

A professional contractor is hired to do their job and should spend adequate time with the owner before contract, listening and bringing up potential problems. There are no good answers, but "a ounce of prevention, is worth several costly pounds of cure." Just a thought
Posted by: John - Friday, October 10, 2014 12:39 PM


Damage is damage whether willfully with intent or by indifference. If a client negatively impacts a project through their actions, then their must be accountability at several levels, just as there would be if the contractor acted in negligence. Willful or not, there is accountability. It is rare that by the time a relationship gets to the point of litigation that there hasn't been multiple breakdowns in both client's and contractor's actions as related to the contract in place. I've found that even the most sinister and reprehensible client does not willfully sabotage their own project. Indifference, ignorance and incompetence are much more likely causes, but no less impact to the contractor. Impact is 1st always, intent just give guidance on how I will handle the impact.
Posted by: Keith Wulber - Friday, October 10, 2014 12:57 PM










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