Law Co. v. Mohawk Construction & Supply Co. (702 F. Supp. 2d 1304, 2010)

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Judge.

This matter is before the court on The Law Company, Inc.’s motion for summary judgment, seeking dismissal of most of the damages defendant Mohawk Construction and Supply Company seeks in its Counterclaim.

The court previously granted plaintiffs motion in an Order (Dkt. 54) which excluded much of the evidence presented by Mohawk in its Opposition to the motion. The Court of Appeals reversed this decision, and remanded the matter for further proceedings. Law Co. v. Mohawk Constr. & Supply, 577 F.3d 1164 (2009). In its Supplemental Brief submitted to this court, Law has stated that it “will not object to the Court’s consideration of all the exhibits attached to Mohawk’s response, or to the affidavits of Cybulski or Kowcheck.” (Dkt. 72, at 6).

Findings of Fact

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiffs claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

On May 8, 2003, The Law Company, Inc. entered into a contract with Cessna Aircraft Company in which Law agreed to build a Cessna C-10 Citation Service Center in Wichita, Kansas. The original contract was for the sum of $44,854,000. The work consisted of approximately 458,000 square feet with an office area, commonly referred to as “Building D,” along with five aircraft service center hangars, commonly referred to as Buildings A and C, on the south side of Building D, and Buildings E, F and G on the north side on Building D.

The work was to be completed within 540 calendar days, i.e., November 3, 2004. The contract provided for liquidated damages payable to Cessna in the amount of $5,000.00 for every day the project was late. Article 4.3 of the Cessna Contract stated:

Extension of time shall be the Contractor’s sole remedy for delay unless the same shall have been caused by Cessna’s intentional interference with the Contractor’s performance of the work, and then only after the Contractor’s notice to Cessna of such interference. Changes in the scope of work, suspension of the work, and correction of defective work shall not be construed as intentional interference with the Contractor’s performance.

On or about May 13, 2003, Law entered into a subcontract with Steel Service Corporation, in which Steel Service agreed to fabricate and erect the structural and miscellaneous steel, metal deck, and bar joists for the project. The contract provided that erection of structural steel would begin in mid-August 2003 and would be substantially complete within four months, or by Christmas 2003. The parties agreed that erection would start in Building D and then proceed essentially simultaneously in both hangar bay wings (north and south of Building D).

On or about May 21, 2003, Law and Mohawk entered into a subcontract in which Mohawk agreed to install all metal wall panels, interior liner panels, hangar doors, draft stops, and exterior enclosure fences on the project.

Section 3 of the Mohawk Subcontract contained the following provisions:

3.1 Contractor shall prepare the construction Schedule for the Project and revise the Schedule as work progresses to achieve the earliest possible completion of the Project. Subcontractor shall immediately furnish all information pertaining to the Subcontract Work requested by Contractor for implementation and revision of the Schedule. Subcontractor recognizes that revisions will be made to the Schedule and agrees to comply with such revisions without additional compensation. Subcontractor shall attend all on-site Project meetings regularly scheduled, or specially called by Contractor’s project manager or superintendent with not less than three (3) days’ written, facsimile or telephoned notice to Subcontractor. In the event of the absence of Subcontractor at any such Project meeting, Subcontractor shall be bound by any decisions or directives issued by Contractor at such meeting concerning the Schedule and/or the progress of the Project.

3.3 No extension of time for performance of the Subcontract Work shall be claimed by Subcontractor, or allowed to it, unless Subcontractor shall have submitted a written request to Contractor within two (2) days after occurrence of the cause of such request and unless (I) Owner grants Contractor an extension of the Project substantial or final completion date for said occurrence or (ii) Contractor and Subcontractor have otherwise agreed in writing as to the amount of additional time allowed. It is understood that delays in Subcontractor’s performance which occur by reason of its inability to secure timely delivery of materials, equipment, or sufficient manpower shall not constitute grounds for an extension of time under this Subcontract. In the event Contractor is liable for liquidated or other damages by reason of late completion of the Project, Contractor may assess against Subcontractor that portion of said damages attributable to any delay by Subcontractor.

3.5 Subcontractor agrees to make no claims against Contractor or Owner should the Schedule not be strictly adhered to, it being understood that Contractor will endeavor to expedite completion of the Project as rapidly as possible.

Citing the deposition testimony of Mark Cybulski, Law submits as a fact that Mohawk does not contend that Law intentionally interfered with its work. (Cybulski Dep. at 41-43). In its Response, however, Mohawk states that it does allege that Law “either through its actions or inactions, intentionally or actively interfered” with Mohawk’s performance, and that the other subcontractors “intentionally or actively interfered,” and references a list of over a dozen paragraphs from its supplemental statement of facts.(Dkt. 46 at 3, ¶ 7, citing SSOF ¶¶ 32-37, 40-41, 50-51, 55-56, 67, 93, 97). The cited facts, however, fail to supply any evidence that Law intentionally sought to interfere in Mohawk’s completion of the project.

The Mohawk Subcontract contains certain Supplementary Conditions which are “intended to adapt the Base Agreement to this specific Project.” Section 4.4 of the Subcontracts Supplementary Conditions provides as follows:

Subcontractor specifically acknowledges that extension of time shall be Subcontractor’s sole remedy for delay unless the same shall have been caused by Owner’s or Contractor’s intentional interference with the Subcontract Work, and then only after Subcontractor has provided timely notice to Contractor and Owner has approved such request for extension. In accordance with Subparagraph 4.3 of the General Contract, changes in the scope of the Subcontract Work, suspension of the Subcontract Work, and correction of defective Subcontract Work shall not be construed as intentional interference with Subcontractor’s performance.

(Emphasis added). Mohawk objects to this requested finding of fact as being merely the interpretation of counsel, but the language cited above, including the statement of intent, is accurately quoted from the Subcontract.

Section 27 of the Mohawk Subcontract provides as follows:

Entirety of Subcontract. This Subcontract, Schedule A and Schedule B, and the provisions thereof, represent the entire agreement of the parties as to the Subcontract Work to be performed by Subcontractor and may not be amended, altered, modified or terminated (except as provided in § 11.) except by the written agreement of the parties. In the event of any conflict between any of the Contract Documents and the provisions of this Subcontract (including Schedule A and Schedule B), the latter shall prevail.

Mark Cybulski was Mohawk’s project manager for this job. He read the Mohawk Subcontract before he executed it. He has executed hundreds of agreements of - this type. He read the sentence in Section paragraph 3.1 of the Mohawk Subcontract, which states: “Subcontractor recognizes that revisions will be made to the schedule and agrees to comply with such revisions without additional compensation.” Cybulski testified that is what actually happened on this job because, “We were supposed to start in September and when I was at the job site and we got an official schedule at that time we saw that we couldn’t start in September. And I made up a schedule for our work based on that job site meeting. So that meant to me that since the job was pushed back that it was just the way it was going to be.” (Cybulski Dep. at 22-23) He agreed the he “knew in August that we weren’t going to be able to start in September.” (Id. at 23).

The Mohawk Subcontract provided that installation was currently scheduled to commence in early September 2003 and that the overall wall panel installation would be completed in 48 working days.

The steel erection for the project was delayed. The reasons for these delays are disputed. Steel erection on this job, as on all jobs of this type, was on the critical path. In other words, most other work on the project could not commence in certain areas until the steel was erected. This included installation of the metal wall panels. Mohawk alleges that this delay occurred because of Law’s failure to properly manage its subcontractors.

Mohawk contracted with Viking Erectors Corp. to perform all labor necessary to fulfill Mohawk’s duties under Mohawk Subcontract. It did so through a written purchase order which called for a fixed price payment to Viking of $550,000. Change orders were later issued to add $60,000-$70,000 to the Viking labor purchase order.

Although the shareholders of Viking are also the shareholders of Mohawk, Viking is not a subsidiary of Mohawk. Viking is a separate corporation with its own tax identification number.

Mike Parker is an employee of Viking. He has never been an employee of Mohawk. He served as Viking’s representative on the project.

On April 10, 2003, Doug Kimple of Law acknowledged that Law would perform its construction services at the project in eighteen months. On April 29, 2003, Law reiterated to the Cessna representative, McCluggage Van Sickle & Perry (“MVP”), that work would be completed in eighteen months. In its Reply, Law notes that the time for construction was controlled by the Cessna contact, which specified 540 days.

As early as July 18, 2003, Law recognized that the actions and inactions of Steel Service were going to “create potential and very costly delay to this project.” Early in the project, Law advised Steel Service that it was “now in a position of extreme urgency.” (Def. Exh. 3).

In August of 2003, more than two months before Mohawk began its work on the project, Steel Service delayed the start of steel erection at the project. On September 12, 2003, Steel Service acknowledged that it was experiencing startup problems resulting in lost time. During the same month, MVP expressed its concern over the number and timing of submissions from Steel Service.

On September 18, 2003, Law advised Steel Service that its “fabrication errors have severely impacted the schedule and the ability of subsequent trades to commence work” and that Law was “in the midst of many serious problems and further yet potentially serious problems.” (Def. Exh. 7).

Throughout September, 2003, Steel Service’s steel deliveries, or lack thereof, continued to delay construction. Law advised Steel Service that “these very serious problems will create costs for which we will hold [Steel Service] responsible.” (Def. Exh. 8).

On October 7, 2003, Law again notified Steel Service of the significant impact caused by its fabrication and delivery failures. Specifically, Law advised Steel Service that its “continued failure to meet required completion dates is impacting other trades. We will hold [Steel Service] fully responsible for all such impact.” (Def. Exh. 9). On October 22, 2003, Law notified Steel Service that “this project is in a serious schedule situation.” (Def. Exh. 10).

When Mohawk arrived at the project in late October, 2003, it was apparent that there were severe delays in the initial project schedule and that Mohawk would not have access to the project site as provided for in the parties’ Subcontract. Mohawk wrote to Law on October 29, 2003 that “[a]ny delays will require additional compensation.” (Def. Exh. 12).

Law provided no response to Mohawk’s October 29, 2003 letter, and never indicated that Mohawk would not be compensated for the delays caused by Law or SSC. Law also failed to raise any contractual provisions in response or as a defense to Mohawk’s notice of claim for additional compensation, nor did it indicate that Mohawk would only be entitled to an extension of time to complete its work at the project.

In connection with the steel fabrication and delivery delays, Mohawk notified Law on October 31, 2003 that the protective coating on the wall panels could be detrimentally impacted if they were stored on site for too long a time.

In early November, 2003, there were still problems and delays with respect to the steel trusses. Some of the delays were caused, in part, because of a payment dispute between Steel Service and its subcontractor, PKM Steel Services, Inc.

Viking personnel came to the job site on November 7, 2003. Viking employees recorded their time thereafter. At no time did Mohawk advise Law that Viking employees were actually doing the erection of the metal panels. Mohawk never gave a copy of its purchase order with Viking to Law. Cybulski testified, “I had a contract with a customer, and because my labor, they don’t need to see my labor.” (Cybulski Dep. at 82).

In mid-November, 2003, Law was aware that the project was behind schedule due to the delays in steel fabrication and delivery. Moreover, Law acknowledged that the steel problems were affecting the work of other contractors, including Mohawk, and that those contractors would be seeking additional costs as a result. Law notified Steel Service that:

Obviously, all subsequent work is impacted by delayed steel completion on a per area basis. The overall effect includes compression, re-sequencing, out-of-sequence work, etc. on subsequent activities. To fully quantify the monetary effect at this time would most likely inflate its effect. As such, we feel it is in your best interest if we proceed with the understanding that [Steel Service] will be notified when these costs become available in the future rather than attempting to fully quantify at this time. Per our 11/12/03 conversation, we are working with the masonry and wall panel subcontractors [Mohawk] to see how much of the delay they can help to overcome and the costs for these efforts. The 10/29/03 steel schedule information was provided to our Wall Panel subcontractor [Mohawk], They have advised that the on-site panels have a fixed storage time after which they must be unbundled or the protective wrap will stick to the panels. If the building is not available for installation the un-bundling becomes an additional effort/cost created by steel delays.

(Def. Exh. 15).

Kowcheck testified that the total amount Mohawk owed to Viking on the project is $622,000. Mohawk has paid Viking $617,000, and owes it another $5,000.

On November 18, 2003, Mohawk again notified Law that it did not have access to the project and was unable to perform its obligations pursuant to the parties’ Subcontract. Mohawk also stated that it did not intend to increase manpower or work overtime to make up the delays without additional compensation.

Cybulski has averred that Doug Kimple of Law repeatedly told him that Steel Service would be held accountable for any and all additional costs incurred by Mohawk as a result of the delays. According to Cybulski, Mohawk relied on these representations — that it would be compensated for any and all additional costs at the project resulting from Law’s breaches, delays, inefficiencies, out-of-sequence work and other schedule impacts — by continuing to perform its contractual obligations in good faith.

On November 20, 2003, Law again notified Steel Service that Mohawk and other subcontractors would be required to perform overtime work as a result of the steel delays. Law also notified Steel Service that it would be held accountable for these costs. By a separate fax the same day, Law advised Steel Service that tube steel had still not been delivered in the office area of the project, which was preventing many of its subcontractors, including Mohawk, from commencing their work. Law also recognized that “[t]his is a critical impact to the project,” which was already two months behind schedule. (Def. Exh. 18).

On December 2, 2003, Law’s concerns with respect to the steel truss deliveries continued, and it expressed its frustration with Steel Service. Law notified Steel Service that “we must again advise that we will hold [Steel Service] fully responsible for all costs created by these ongoing delays.” (Def. Exh. 19).

The same day, Law wrote to Mohawk, acknowledging the significant impact on the schedule, noting “[a]gain, I agree the [sic] will be some additional costs and we will be fair about this.” (Def. Exh. 20).

On December 5, 2003, Mark Cybulski of Mohawk notified Law that various areas of the job were in a condition such that Mohawk could not commence work.

On December 11, 2003, Law once again notified Steel Service that its failure to timely perform at the project had adversely affected other trades. Law also advised Steel Service that it was authorizing Mohawk to alleviate some of the delays and schedule impacts caused by Steel Service by working all available overtime during the installation of the wall panels to “help mitigate some of the impact created by [Steel Service] and we will deduct all costs for same from future sums due [Steel Service].” (Def. Exh. 21).

On December 24, 2003, Law wrote to MVP that “certainly we are not happy with the ongoing steel issues.” Law stated that the problems started with a conflict on the contract documents, and that “there have been other contract document issues which play into this matter.” (Def. Exh. 22).

On January 22, 2004, MVP responded to Law, stating: “There are too many outstanding steel deficiencies. Please advise on what action you are taking to regain quality control on structural issues.” (Def. Exh. 23).

On January 23, 2004, Law advised Steel Service that “this is a very serious situation” and threatened to “get directly involved.” Law wrote that “all costs for this effort will be the sole responsibility of [Steel Service].” (Def. Exh. 24).

On February 20, 2004, Mohawk notified Law that many of the areas were still not completed in a manner which would allow Mohawk to complete its performance under the parties’ Subcontract. Mohawk also advised Law that “we are hereby giving notice that we may prepare a schedule extension claim for the duration of now to the end of the project.” (Def. Exh. 25). In response, Law did not advise Mohawk that it would not be entitled to any additional compensation, and was instead limited to receiving an extension of time.

According to Cybulski, although one of Mohawk’s suppliers was late in shipping some of its materials, these late deliveries had no impact upon the schedule. Even if timely delivered, Mohawk could not have used them because Law was not providing access to the project site. The materials would have been placed in outdoor storage at the site, with the possibility of damage from that storage.

Cybulski also avers that, throughout the project, Law repeatedly acknowledged that the delays and out-of-sequence work were attributable to Steel Service and Steel Service’s subcontractors. Law contends that Cybulski testified differently in his deposition. In his deposition, Cybulski specifically denied any recall of verbal communications between he and Doug Kimple of Law after August 5, 2004, other than one involving the location of a fax. (Cybulski. Dep. at 110-11). Before that date, Cybulski first testified that Mohawk was not getting any response on the claim:

Q. Any other discussions, then with Mr. Kimple on this claim issue?

A. Well, we had asked why we weren’t getting any response to this, because we really didn’t get any kind of response for the longest time, and then Doug had said that he sent us a fax, and, well, I did see a fax, but that didn’t seem like a formal request to me, because it was a lot of questions and there were some items on there that just said, per all of my items, we’re looking into this — I’m paraphrasing now — we’re looking into this, we disagree with the amount, yes, we think this is okay, we disagree, similar to that. But that didn’t seem like a formal response to my claim, so I basically pushed it aside.

Q. Any other discussions, any other comments, statements by Mr. Kimple on this subject? I want to cover everything that you can recall. If you don’t recall, that’s fine.

A. I don’t recall.

(Id. at 105-06). However, Cybulski later testified:

A. I don’t recall the discussion that we’ve had, but I know on more than one occasion that it was brought up to us that all of these concerns that we had about us not getting our work in a timely manner would be taken care of.

Q. Do you recall the words he used? “Taken care of,” is that your word?

A. That’s my word, I guess, yeah.

Q. And—

A. I can’t really quote it this time.

Q. And I appreciate that, after three years, but this is my opportunity to find out what you’re going to say about what Mr. Kimple told you in regard to any claims you were proposing, and so—

A. I did not ever, at no time were we ever told that we would not get paid for our extension of the schedule.

Q. Were you ever told that you would definitely get paid?

A. Yes.

Q. And Mr. Kimple told you you would get paid?

A. Yes.

(Id. at 107-08).

MVP recognized that “the work delays were a result of delays in steel fabrication, steel delivery to the Project Site, steel erection and correction of steel fabrication and erection deficiencies. Steel fabrication, delivery and erection delays in turn created additional installation delay in roof decking, roofing, glazing and exterior wall panels.” (Def. Exh. 26).

During the February 26, 2004 project meeting, Law indicated “that steel delays and not getting the building enclosed and weather tight before the cold and wet weather set in contributed to roofing, glazing and wall panel delays.” (Def. Exh. 26).

As of March 24, 2004, many of Steel Service’s “fixes” were already up to six months late. (Def. Exh. 27).

Once Mohawk was given access to perform its work, it was at times required to perform do so out-of-sequence and inefficiently.

Mohawk has alleged that, when the steel materials finally were delivered to the project, Law and its subcontractors did not perform the erection in a quality manner and pursuant to the contract documents and drawings which, consequently, forced it to perform its work in an inefficient and out-of-sequence manner. Law correctly notes that the cited evidence (Def. Exh. 30) does not directly make any claim of poor quality performance by Law or another subcontractor. However, the exhibit, a letter from Cybulski to Doug Kimple of Law, states that Mohawk has not attached some panels “due to the lack of support,” caused by the failure to install studs called for in project detail drawings. That specific failure — “like many other conditions” — was causing Mohawk to delay its work.

Mohawk cites Cybulski’s letter of May 20, 2004 to Kimple as indicating that many of the areas requiring panel installation were still not ready, and as stating that it would demobilize until the project was accessible for Mohawk’s work. (Def. Exh. 31). According to Law, the letter actually indicates that Mohawk was waiting for additional deliveries from its supplier, Benchmark. This is partially correct. Cybulski wrote that “[w]e cannot finish the horizontal panels until the replacements arrive from Benchmark,” but he also wrote that the installation of “vertical panels [required] completion of studwork at the expansion joints,” and also notes “other areas that are not ready for panel installation.” (Id.). The letter suggests that these “other areas” were not the responsibility of Mohawk or its suppliers.

In late May, 2004, Law again told Steel Service that its deficient work was holding up Mohawk’s progress.

On July 14, 2004, MVP notified Law that several structural steel details, erection deficiencies and unknown inspection results required remedial action and inspection verification.

On July 22, 2004, Mohawk notified Law that it had to remove or replace numerous wall panels because of damage caused by Law or its other subcontractors.

According to Cybulski, most, if not all, of the Benchmark deliveries during the summer months of 2004 were not materials required under the original scope of Mohawk’s contract with Law. Instead, the deliveries were for replacement materials damaged by Law or other Law subcontractors at the project.

On August 5, 2004, Mohawk provided Law a detailed breakdown of its costs at the project resulting from the delays, schedule impacts, inefficiencies, and out-of-sequence work caused by Law. According to Cybulski, Law always acknowledged not only that Mohawk was entitled to additional compensation as a result of those problems, but that Mohawk would be paid these costs. The letter stated: “Since the onset of the construction of the project, we have been experiencing major delays and schedule changes which are having a significant cost impact on our total scope of work. Since the causes of these delays and changes are definitely not attributable to Mohawk, we feel justified in submitting this request for reimbursement of these costs.” The letter went on to set forth damages in various categories and made a total claim of $233,047. (Plf. Exh. I)

In its August 5, 2004, claim letter, Mohawk sought damages for “wage escalation.” This refers to the increased cost to Viking for the wage escalation at the union. The letter’s claim for “foreman costs” all relate to Viking’s Parker. (Def. Dep. Exh. 20). The August 5 claim letter cites damages arising from delays and schedule changes: “we have been experiencing major delays and schedule changes which are having a significant cost impact on our total scope of work.” (Id.)

On August 17, 2004, Law again notified Steel Service that its work at the project was “[ujnbelievably” still not complete. Furthermore, “this delayed completion of your contract work is made much more difficult by the ongoing work of the other trades and continues to impact other trades.” (Def. Exh. 36).

On August 20, 2004, Law responded to Mohawk’s August 5, 2004 letter. Once again, Law did not advise Mohawk it was not entitled to additional compensation for many of the items cited in Mohawk’s letter. Instead, Law disputed the amount of time Mohawk claimed it was delayed at the project. Law makes no mention of, nor does it rely upon, any of the exculpatory provisions contained in the Subcontract.

Cybulski has averred that, based upon this letter and his numerous discussions with Law, Mohawk believed that it would be compensated for its costs resulting from- delays, schedule impacts, out-of-sequence work, inefficiencies, and other problems Law or other subcontractors caused. At no time prior to the present litigation did Law ever reference or rely upon the alleged exculpatory provisions in the parties’ Subcontract as a defense to any of Mohawk’s claims for additional compensation.

Shortly after receiving Mohawk’s August 5, 2004 letter, Law notified Steel Service that it intended to made a deduction from the payment to Steel Service to cover certain costs incurred by Mohawk as a result of the delays.

As of September 30, 2004, there remained certain items still not delivered or completed by Steel Service at the project which, in some instances, were over nine months late.

Steel Service disputed that it was directly responsible for all of the project delays, impacts, and inefficiencies, and wrote to Law on October 14, 2004 that “we are doing everything possible to limit the delay caused by the Law Company and/or incorrect contract documents.” (Def. Exh. 40).

On November 4, 2004, Law notified Steel Service that its “lack of performance” had caused significant costs to the project’s subcontractors. The letter noted that “The Exterior Wall Panel subcontractor (Mohawk) has incurred additional costs as indicated in the attached 8/5/04 letter from Mohawk Construction.” (Def. Exh. 41) (emphasis in original). Law also indicated that it expected additional costs to be incurred as a result of Steel Service’s lack of performance, and that it was issuing a deductive change order in the amount of $879,418.00, which included Mohawk’s claim.

In November 2004, Mohawk advised Law that its work was complete. In a letter dated November 17, 2004, Mohawk sent Law a revised claim letter, which included damages resulting from an additional one month on the project. Mohawk added another month of alleged delay to its claims, increasing its total damage claim to $255,753.

Law did not respond in writing to this letter. According to Cybulski, however, and as noted above Law verbally represented at all times that Mohawk would be entitled to additional compensation for its costs and damages. Based upon these representations, Mohawk remained on the project

As late as December 22, 2004, MVP told Law that “we are concerned with the overall progress of the Project.” (Def. Exh. 43). As of January 13, 2005, there remained unresolved structural steel fabrication and erection issues.

According to Cybulski, at no time throughout the project did Law indicate to him that the delays were caused by Mohawk; instead, Law placed the blame on Steel Service and PKM. As an illustration, Shelly Electric, Inc., another Law subcontractor, understood and agreed that the project’s schedule was “greatly affected by the delays caused by the structural steel provider/erector [PKM/Steel Service].” (Def. Exh. 45).

On February 22, 2005, Law sent Steel Service a follow-up letter to its November 4, 2004 letter. Law notified Steel Service of Mohawk’s revised November 17, 2004 claim, and stated, “we do not know if PKM was the sole source of the truss delay and quite frankly that is the business and obligation of Steel Service.” (Def. Exh. 46). Further, Law notified Steel Service that it

was several months late in Area ‘D’ preventing the metal studs from proceeding which later delayed the wall panels. It started with Steel Service. The steel framing at the canopies was not properly completed until the third quarter of 2004 which in itself is over (6) months late, not to mention, the many other locations where Steel Service’s failures delayed the wall panel installation and/or completion.

(Id.) Finally, Law wrote that it was issuing a deductive change order in the amount of $1,193,040.00 as a result of the problems, delays, impacts, and inefficiencies caused by Steel Service at the project, which included Mohawk’s damages.

On June 9, 2005, Law advised Mohawk that, with respect to Mohawk’s November 17, 2004 letter, “we are pursuing with responsible parties to the extent we can.” (Def. Exh. 47). Again, Law never notified Mohawk that it was not entitled to additional compensation as a result of any exculpatory provision contained in the parties’ Subcontract.

Mohawk’s Mark Cybulski notified Law on numerous occasions that Mohawk could not work in specific areas and requested a revised schedule from Law. Law, however, never did so. Cybulski’s understanding of the phrase “strictly adhered to” contained in Section 3.5 of the parties’ Subcontract “doesn’t mean that we’re going to slip eight months on this project. Strictly adhered to or not strictly adhered to would only mean that you might have a couple of days lapse in some things. You don’t have eight months that goes by.” (Def. Exh. 48 at 36). Mark Cybulski’s understanding of a “delay” as that term is used in Paragraph 4.4 of the Supplementary Conditions to the parties’ Subcontract is “a couple of days, an extension of time for a delay which is just — what we had wasn’t something that was a delay to where we could make up a day or so here. We got pushed back eight months where we couldn’t finish this job. That, to me, doesn’t constitute a delay.” (Id. at 38).

Mohawk alleges that Law’s Doug Kimple told Cybulski on numerous occasions that Mohawk would be compensated for the project delays, inefficiencies, out-of-sequence work, and schedule impacts. He also advised Mohawk that Mohawk was not simply receiving an extension of time to perform its work. Cybulski has stated that throughout the entire course of the project, and even after Law was notified of Mohawk’s claims, the exculpatory provisions contained in the parties’ Subcontract were never brought up or raised by Law, and Law never advised Mohawk that it was only entitled to an extension of time to complete its work. Kimple always blamed all of the problems at the project on the steel erector and supplier. Mohawk was never told that it would not get paid for the extensions. Instead, Kimple told Cybulski that Mohawk would definitely be paid.

According to Cybulski, Viking may not yet have invoiced Mohawk for the entire project. Law, however, responds by noting that there is ambiguity in the Certificate of Payment submitted by Mohawk, which directly states that all its subcontractors have been paid in full.

Law contends that Mohawk blamed another company — Alumashield—for extra time Mohawk spent on the job replacing discolored panels in September and October 2004. Mohawk made claims against Alumashield in the amount of $38,227. Law also notes that Mohawk blamed yet another company, Benchmark, for the delay in panel shipments and advised Benchmark it would pass costs on to them.

In its Response, Mohawk argues that the Benchmark delays benefitted Law by preventing the delivery of materials before they could be used, in light of other delays on the project. With respect to Alumashield, Mohawk denies the asserted fact by stating that any delays were “solely caused by Law’s and Law’s other subcontractors.” (Dkt. 46 at 5, ¶ 23).

Law notes that Benchmark still needed to ship five panels as of August 20, 2004. According to Mohawk, these were replacements for panels damaged by Law or other subcontractors.

Mohawk is not making any claim for overtime expenses. Viking’s representative, Mike Parker, believes the only overtime work by Viking was one Saturday to get out of another contractor’s way.

In the Pretrial Order, Mohawk contends that its alleged damages were incurred due to “numerous Project delays, suspensions of work, out-of-sequence work, and inefficiently performed work.” (Dkt. 41 at 7). As acknowledged by Mohawk in the Pretrial Order, the fifth required element of proof for its breach of contract claim against Law is “[djamages to Mohawk caused by the breach.” (Id. at 10). As identified in the Pretrial Order, an issue of fact in this action is “the amount of Mohawk’s damages.” (Id. at 14).

In its Notice of Rule 30(b)(6) Deposition directed to Mohawk, Law identified one topic of intended inquiry as follows:

All contentions of Mohawk concerning the damages Mohawk claims to have suffered as a result of the alleged breach of the Law Company / Mohawk Subcontract, including Mohawk’s subjective beliefs and opinions regarding the cause or causes of the damages and its monetary valuation of those damages.

(Dkt. 30 at 2). Mohawk designated its expert witness, Dominick DeSalvo, to speak on its behalf regarding its alleged damages and the causes of those alleged damages.

DeSalvo produced an expert report in which he opined that Mohawk is entitled to recover $634,403.23 in damages. With the exception of $9,919 in alleged “Rework” damages and a claim for prejudgment interest, all of the damages opined to by DeSalvo are presented as having been caused by delay or rescheduling.

DeSalvo testified that his role as Mohawk’s damages expert was to calculate “[djelay and disruption” damages. (DeSalvo Dep at 27, 30).

DeSalvo testified that it was his opinion that Mohawk suffered damages from being on the job longer than they should have been or anticipated being. However, he went on to explain that the company on the job longer was actually Viking. (Id. at 30-32). DeSalvo testified that all of the damages being sought by Mohawk in this action were actually allegedly suffered by Viking, with the exception of the overhead and profit Mohawk wishes to add to Viking’s alleged damages. (Id. at 32).

DeSalvo’s report is based on Cybulski’s claim letters of August and November 2004. The report sets forth five categories of damages, together with overhead, profit, and interest. The first category, “labor escalation,” sets forth the same amount as that claimed by Cybulski. (Id. at 72). The second category, “extended general foreman’s costs,” sets forth the same amount, $7,800 per month, as that claimed by Cybulski. However, DeSalvo used a longer period of months. (Id. at 72-73).

DeSalvo’s third category of damages, “extended use of equipment and utilities,” sets forth the same amount, $14,400 per month, as that claimed by Cybulski. DeSalvo did nothing to confirm these numbers or the math behind them. (Id. at 73). The fourth category of damages, “rework,” is simply a dispute between Law and Mohawk about whether extra work was done. DeSalvo is not stating an opinion on this dispute or the amount claimed. He simply included the amount.

DeSalvo’s final category of damages, “loss of labor productivity,” was based on Viking’s cost report. He thereafter put a cost of “seasonal impact” because some of the work was done in the winter. (DeSalvo Dep at 74-77). DeSalvo also uses a 20% overhead and 10% profit figure. However, he acknowledged the Mohawk Subcontract limited overhead and profit to 5%, and admitted that his figure should be adjusted to that. (Id. at 104-06).

Mohawk makes only two responses to Law’s Statements of Fact regarding DeSalvo’s damages calculations. It generally argues that Law’s requested facts are merely the argument of counsel. Second, it references several facts cited in its Supplemental Statement of Facts (SSOF ¶¶ 73-82).

The court finds that the cited grounds offer no valid basis for rejecting the requested findings of fact. The requested findings accurately summarize DeSalvo’s testimony. Further, the additional facts cited by Mohawk merely buttress Mohawk’s claims regarding the alleged pass through agreement. Those facts offer no rationale for permitting the defendant to disavow the testimony of its Rule 30(b)(6) expert representative as to the nature of its damages.

On January 24, 2006, Mark Cybulski, on behalf of Mohawk, executed under oath and delivered to Law Company, a certificate of payment in order to induce Law to pay to Mohawk the retainage on the Mohawk Subcontract. In that sworn statement, Mohawk made several certifications, including the following:

(c) all persons or entities from whom Subcontractor obtained labor, materials, or equipment for the Project have been paid in full and no such person or entity has any claim or lien against the Project for work performed on the Project, or labor, materials, or equipment supplied for the Project.

The Certification further stated that Mohawk was reserving only the right to claim or recover damages incurred by Subcontractor (Mohawk) at the project. (Plf. Exh. P). According to Mohawk, that representation was intended only to cover “issues related to Mohawk’s entitlement to receipt of payment for retainage.” (Dkt. 46 at 9).

In support of its summary judgment motion, Law notes that when Cybulski was asked what facts supported the claims of waiver or estoppel, Cybulski identified only four facts: (a) He asked Kimple why there was no formal response to Mohawk’s February 20, 2004, claim letter, (b) Kimple said that Mohawk’s concerns about not getting its work in a timely manner would be “taken care of,” (c) Kimple said that Mohawk would get paid, and (d) Kimple never told Mohawk that it would not get paid for the extension of the schedule. As noted earlier, a factual dispute exists as to Cybulski’s testimony.

As identified in the Pretrial Order, among the issues of law to be decided in this action are the following:

a. Does the Subcontract language prevent Mohawk from making any delay claims against Law or any other types of claims based on adjustments to the work schedule?

b. Did Law’s actions and/or inactions during the course of the Project act as a waiver of certain Subcontract provisions upon which Law relies in defense of Mohawk’s claims?

c. Is Law estopped from relying upon certain Subcontract provisions and defenses against Mohawk’s claims as a result of its actions and/or inactions at the Project?

(Dkt. 41 at 15).

David Kowcheck and Ray Jennings are each fifty percent (50%) shareholders in both Mohawk and Viking. Viking was used by Mohawk as a subcontractor on the project. Kowcheck has averred that Viking notified Mohawk throughout the project of the numerous project delays, schedule impacts, inefficiencies, out-of-sequence work, and suspensions of work. He has also averred that Viking has incurred significant additional costs and expenses at the project as a result of the same.

Because Jennings and Kowcheck are the sole shareholders of Viking as well as Mohawk, they decided that it was not in either company’s best interest for Viking to institute a legal proceeding against Law to recover these additional costs and expenses. Moreover, because Viking’s contract is with Mohawk, Viking has no contractual privity to file a legal action against the parties they believe responsible for the project’s failures (ie., Law, Steel Service, and PKM). As such, Viking has notified Mohawk of its claims and has chosen to wait for payment from Mohawk pending a resolution of Mohawk’s claim against Law. Kowcheck states in his affidavit that Mohawk intends to pass down to Viking a certain portion of any proceeds recovered from Law. According to Kowcheck, in addition to the labor escalation and loss of labor productivity incurred by Viking at the project, Mohawk has also incurred other significant damages. He cites as an example, approximately $144,100.00 in extended equipment costs arising from project inefficiencies. All of the equipment utilized by Mohawk at the project was either owned by Mohawk or rented by Mohawk. According to Kowcheck’s affidavit, a significant portion of Mohawk’s claim does not relate to the project delays but rather costs incurred due to the project inefficiencies, out-of-sequence work, and suspensions of work.

After the project was completed, PKM filed suit in the Sedgwick County District Court of Kansas against Steel Service; PKM’s state action was subsequently removed by Steel Service to the United States District Court for the District of Kansas, Docket No. 04-1299-JTM. PKM sought $349,813.93 in damages for amounts due under the subcontract; Steel Service counterclaimed alleging damages for late delivery of materials. Steel Service also filed a crossclaim against Law for an unpaid contract balance of $867,616.43. Law filed a crossclaim against Steel Service in the amount of $1,193,040.00.

As part of Law’s crossclaim against Steel Service, Law allegedly “passed on” Mohawk’s claims against Law as a result of the project delays, impacts, inefficiencies and out-of-sequence work. The amount of Law’s crossclaim against Steel Service is the same deductive change order amount that SSC was notified of on February 22, 2005.

The PKM Action also included a third party complaint against Steel Service filed by another of its subcontractors at the project, Bosworth Steel Erectors, in the amount of $848,734.49. Bosworth claimed retainage in the amount of $216,613.80, extra work items of $168,777.08 and delay damages of $461,343.61. Steel Service subsequently increased its crossclaim against Law to $1,034,587.00.

Prior to trial in the PKM action, Steel Service and Law entered into a Settlement Agreement and Mutual General Release in which Law agreed to pay Steel Service $587,500.00 as full and final settlement of the crossclaims between the two companies, an amount $447,087.00 less than Steel Service sought from Law. The settlement amount included some out-of-pocket costs Law paid to third parties for work originally assigned to Steel Service.

The dispute between Steel Service and PKM went to trial. Ultimately, the Court held that PKM was the responsible party for the delays in the project, and denied PKM’s claims against Steel Service and entered judgment against PKM in the amount of $67,784.02, plus attorneys’ fees, costs and expenses. The court further found that Steel Service had made payment to Bosworth in the amount of $180,500.00 for Bosworth’s delay claims at the project.

Conclusions of Law

Validity of the Exculpatory Clause

In its Supplemental Brief, Mohawk now argues that it does not dispute “that competent parties are free to contract as they desire,” and generally advances no argument against the validity of similar clauses. (Dkt. 73 at 5). This is a change from its original Opposition to the Motion for Summary Judgment, where it argued that the only Kansas case directly on point, Kansas City Structural Steel v. L.G. Barcus & Sons, 217 Kan. 88, 535 P.2d 419 (1975), was distinguishable, and otherwise stressed that “there are various states that have refused to uphold such clauses deeming them against public policy.” (Dkt. No. 46 at 31).

In its prior Order, the court held Kansas City Structural Steel recognized the general validity of such agreements, and further found that “[t]he no-damages-for-delay clause is valid and enforceable under Kansas law.” (Dkt. No. 54 at 10). The Court of Appeals opinion does not address this holding, and it remains the law of the case. See Gray v. Phillips Petroleum, Nos. 84-2107-S, 84-2295-S, 1990 WL 62068, *3 (D.Kan. April 17, 1990) (district court rulings not disturbed by intervening appeal are the law of the ease).

While observing that it is not challenging the theoretical validity of the “no damages for delay” clause, Mohawk does suggest in its Supplemental Brief that that clause is inconsistent with, and must be reconciled to, other provisions in the contract. Mohawk argues that Law “fails to point out other conditional language contained in the very same provisions which render the otherwise enforceable exculpatory provisions moot,” (Dkt. 73 at 5), specifically referencing two contract provisions. First, Mohawk cites Subcontract Section 3.1, which provides that Law would “revise the Schedule as work progresses to achieve the earliest possible completion of the project,” and the provision in Section 3.5 that “it being understood that Contractor [Law] will endeavor to expedite completion of the Project as rapidly as possible.”

Mohawk raises this mootness argument for the first time in its Supplemental Brief. It made no mention at all of Section 3.1 in its original Memorandum in Opposition, and mentions Section 3.5 only in the context of its argument that Law’s conduct constituted a “fundamental breach” of the contract. (Dkt. 46 at 47-48).

The court addresses the fundamental breach argument below. For present purposes, the court finds the arguments relating to mootness or contract construction are not grounds for denying summary judgment, since the cited provisions in the contract do not explicitly or implicitly limit or condition the exculpatory clause contained in Supplemental Condition Section 4.4, which explicitly provides that “extension of time shall be Subcontractor’s [Mohawk’s] sole remedy for delay.”

The only condition or exception attached to this limitation in Supplemental Conditions Section 4.4 arises when the delay exists because of “intentional interference” by Law or Cessna. The cited language in Sections 3.1 and 3.5 create a general duty by Law to advance the completion of the project as expeditiously as possible, but those provisions do not override the clear and express waiver of an action for damages in Section 4.4.

Exception: Fundamental Breach

Mohawk argues that even if the “no damages for delay” clause might otherwise be enforceable, it should not apply in the present case because Law’s actions represent a “fundamental breach” of the Subcontract. Mohawk cites three decisions which have recognized the doctrine of a fundamental breach as an exception to similar exculpatory clauses. See U.S. ex rel. Evergreen Pipeline Constr. v. Merritt Meridian Constr., 95 F.3d 153, 167 (2nd Cir.1996); Forward Indus. v. Rolm of New York Corp., 123 A.D.2d 374, 506 N.Y.S.2d 453, 456 (1986); Gray v. City Sch. Dist. of Albany, 277 A.D.2d 843, 716 N.Y.S.2d 795, 796 (2000). As the defendant notes, the doctrine of fundamental breach is “[Related to the concept of active interference.” (Dkt. 73 at 13).

However, after citing the relevant cases, and noting the observation in Section 3.5, that is, the parties’ “understanding]” that Law would “endeavor to expedite completion ... as rapidly as possible,” Mohawk’s argument relating to fundamental breach is cursory: “If a jury determines that Law breached any of its express or implied contractual obligations, Law should not be permitted to rely upon the no damage for delay provision in the Subcontract.” (Dkt. 46 at 47). That is the extent of its argument, lock, stock, and barrel. Mohawk provides no further elaboration in its Supplemental Brief, which essentially repeats verbatim the relevant passage from its earlier Opposition Memorandum. (Dkt. 73 at 13-14).

The court finds that Mohawk’s “fundamental breach” argument does not prevent application of the “no damages for delay” clause. First, each case Mohawk cites in support of its argument come from a single jurisdiction. Second, note of the cited cases provides any direct indication that the doctrine of fundamental breach should be applied here.

After enumerating the exceptions to similar clauses under New York law, the court in Evergreen Pipeline immediately emphasized that the exceptions — including the fundamental breach exception — were limited in nature: “Lest the exceptions swallow the rule, delay clauses proscribe damages for a broad range of both reasonable and unreasonable delays.” 95 F.3d at 167 (citing Corinno Civetta Constr. v. City of New York, 67 N.Y.2d 297, 502 N.Y.S.2d 681, 685-86, 493 N.E.2d 905, 909-10 (1986); Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 749-50, 448 N.E.2d 413, 416 (1983)). The court further observed:

Moreover, the abandonment of the contract exception is limited to those situations where “the contractee is responsible for delays which are so unreasonable that they connote a relinquishment of the contract by the contractee with the intention of never resuming it.” Corinno, 502 N.Y.S.2d at 688, 493 N.E.2d at 912. The breach of contract exception is also a narrow one and applies “only for the breach of a fundamental, affirmative obligation the agreement expressly imposes on the contractee. Typical of such claims are those in which the contractee has failed in its obligation to obtain title to the work site or make it available to the contractor so that it may commence construction of the agreed upon improvements.” Id. Finally, the contractor’s burden of proving the exception is a heavy one. Manshul Constr. Corp. v. Board of Educ., 160 A.D.2d 643, 559 N.Y.S.2d 260, 261 (1st Dep’t), lv. to appeal denied, 76 N.Y.2d 709, 561 N.Y.S.2d 913, 563 N.E.2d 284 (1990).

Id. The court in Evergreen Pipeline noted the general existence of “fundamental breach” as an exception, but did not further discuss its application to the facts of the case.

In Forward Industries, the court based its decision on a specific finding that the language of the exculpatory clause was ambiguous under the circumstances:

Since the first portion of paragraph seven excuses the defendant from delays it may sustain by reason of extraordinary and unanticipated causes, the parties must have intended the no-damage-for-delay clause to apply to delay sustained by the defendant due to causes within the contemplation of the parties at the time the contract was entered into, which would preclude the defendant from completing performance by May 18 or a reasonable time thereafter. Any other construction would render the no-damage-for-delay clause repetitious and meaningless. However, it cannot be assumed from such a general no-damage-for-delay clause that it was intended to bar a claim for damages for delay caused by the defendant’s breach of an essential or fundamental obligation of its contract. Such an intent requires explicit language. Paragraph 1 of the parties’ agreement imposed upon the defendant an affirmative duty to use its “best efforts” to install an operational telephone system by May 18 or within a reasonable time after this intended cut-over date. Absent more explicit terms, the “under no circumstances” language of paragraph 7’s no-damage-for-delay provision cannot, under the rule of strict construction, be read expansively to include delays caused by the defendant’s breach of such an affirmative and fundamental duty.

123 A.D.2d at 376-77, 506 N.Y.S.2d at 455 (citations omitted, emphasis added). Thus, the court recognized that even a fundamental breach may be excused as long as the contract language calls for such a result.

Finally, in Clifford R. Gray, the court merely upheld without elaboration a trial court finding of fundamental breach and delay. “[Finding an ample basis in the record,” the court concluded, “we decline to disturb the holding that the ‘no damages for delay clause’ did not bar plaintiffs claim for money damages.” 277 A.D.2d at 845, 716 N.Y.S.2d at 798.

Fundamental breach as an exception to a “no damages for delay” clause does not appear to have any substantial support outside of New York. In one of the few decisions outside of New York which have adopted the exception, Mafco Elec. Contractors v. Turner Constr., No. 07-000114, 2009 WL 807469, at *8 (D.Conn. March 26, 2009), the court emphasized that “[t]he exception is a narrow one.” And the court rejected the plaintiffs argument that a fundamental breach existed under the facts of the case:

Mafco has not cited any ease where a court, in Connecticut or elsewhere, found a breach of a fundamental obligation of contract entitling the plaintiff to delay damages despite an exculpatory clause. The only case cited by Mafco which involved a contract with an exculpatory clause is Regional School Dist. No. 9 v. Wayne Const. Co., 2000 WL 727504, No. CV 990337880 S (Conn.Super. May 18, 2000). In this case, the court simply confirmed the decision of an arbitral board to award delay damages despite the arbitrator’s decision not to address the no damages for delay clause, and concluded that it had no authority to overturn an arbitration award in the face of an unrestricted submission to arbitration unless the arbitrator’s conduct was “egregious or patently irrational.” As the arbitral board did not set forth a memorandum of decision, the decision of the court to confirm that award is of little precedential value.

In Earthbank Co. v. City of New York, 172 A.D.2d 250 [568 N.Y.S.2d 101] (1st Dept.1991), the court found that the owner’s failure to obtain a wetlands permit necessary to begin construction was a fundamental breach of contract. In another case, a two-year delay caused by the owner’s faulty subsurface exploration, frequent plan changes, and the invasion of protestors onto a job site were not breaches entitling a contractor to recover over a no damages for delay clause. Blau Mechanical Corp. v. City of New York, 158 A.D.2d 373 [551 N.Y.S.2d 228] (1st Dept.1990). In this case, Mafco has alleged that Turner, through its subsidiary, Turner Logistics, failed to timely provide materials and purchasing and delivery information so that Mafco could install certain light fixtures. However, Mafco did eventually receive the materials and complete its work, except for punch list items, by September 2006 at the latest. This is not a complete failure of a condition precedent to performance, as in Earthbank, but a delay in performance, as in Blau. Therefore, there is no fundamental breach, k. fundamental breach must completely frustrate the performance of one of the parties, not merely delay it for a time. See Corinno Civetta [Constr. v. City of New York], 67 N.Y.2d [297,] 313[, 502 N.Y.S.2d 681, 493 N.E.2d 905 (1986)].

2009 WL 807469 at *8 (emphasis added).

Taken in the light most favorable to Mohawk, the evidence does not support the conclusion that the eight-month delay completely frustrated project construction. The delay, while aggravating and expensive for the parties concerned, remained a delay. The fundamental breach exception does not apply.

Exception for Uncontemplated Delay

Mohawk also argues that the “no damages for delay” clause should not apply here because the delay was not of a type contemplated by the parties. In support of its argument that such clauses have no application to “uncontemplated” delays, Mohawk draws heavily from the string citation of cases in State Highway Admin, v. Greiner Eng’ng Sciences, 83 Md.App. 621, 634, 577 A.2d 363 (1990). (Dkt. 46 at 39-40). And again, Mohawk’s Supplemental Brief essentially repeats this argument with no substantial elaboration. (Dkt. 76 at 9-11).

Mohawk fails to acknowledge on either occasion that the court in Greiner ultimately rejected the uncontemplated delay exception. Applying Maryland law but finding no controlling decision in that jurisdiction, the court indeed noted “no dearth” of cases from jurisdictions following what it termed the “New York Approach,” recognizing the existence of uncontemplated delays as an exception. 83 Md.App. at 633-34, 577 A.2d at 368-69. The court, however, noted a trend among “numerous other jurisdictions” holding that uncontemplated delays should not be considered an exception to “no damages for delay” clauses. 83 Md.App. at 637, 577 A.2d at 370. The court ultimately concluded:

We apply the above princ