damage-for delay clauses

Morse/Diesel, Inc. v. Trinity Industries, Inc.; Mosher Steel Co., and Aetna Insurance Co.,
67 F.3d 435, 1995 U.S. App. LEXIS 27614 (2d Cir. Sept. 26, 1995).
Contract provision authorizing compensation for delay, “notwithstanding any other provision . . .” held to override “no-damage-for-delay” provisions in other portions of contract as a matter of law. Trial court erred in submitting question of interpretation to jury. 
Morse/Diesel, Inc. (“Morse/Diesel”) was the general contractor for the construction of the Marriott Marquis Hotel in Manhattan’s Times Square. In August, 1982, Morse/Diesel entered into a subcontract with Mosher Steel Company, a division of Trinity Industries, Inc. (“Trinity”) to fabricate and erect the steel members necessary for hotel construction within 13 months, excluding inclement weather. In fact, the job took 20 months, from January, 1983 until September, 1984. Morse/Diesel sued Trinity and Trinity’s bonding company, Aetna Insurance Company, for damages in the amount of $37 million arising from the cost of an acceleration program designed to recapture the delay, as well as losses suffered by the hotel’s owner, the architect and other subcontractors. Trinity counterclaimed for its own damages arising from additional work and delay in completing the subcontract.
Continue Reading Second Circuit Court of Appeals Reverses Multi-million Dollar Verdict for Delay Damages on Basis of Erroneous Submission of Question of Contract Interpretation to Jury