delivered the opinion of the court:
Plaintiff, L. K. Comstock (Comstock), contracted with the State of Illinois, acting by and through the Capital Development Board (CDB), to perform certain electrical construction on the University of Illinois replacement hospital project. The CDB, in turn, contracted with the defendants, Morse/Diеsel, Inc. of Illinois, UBM, Inc., and the Morse/ UBM Joint Venture, to act as the CDB’s construction manager for this project. For convenience, the defendants in this appeal will be referred to as the construction manager. No contract was entered into by Comstock and the construction manager.
Comstock brought this action against the construction manager for damages in excess of $4.2 million arising out of a 23-month delay that Comstock encountered in performing its contract with the CDB. Count I of Comstock’s complaint alleges that the construction manager caused this dеlay, thereby breaching its duty to Comstock, by failing to, among other things, coordinate, direct, supervise, organize, and expedite the construction project. Count III alleged that these failures by the construction manager were also a breach of the contract between thе CDB and the construction manager and that Com-stock was an intended third-party beneficiary of the CDB construction-manager contract who could therefore bring suit against the construction manager. The construction manager moved for summary judgment with respect to counts I and III and movеd to dismiss count II. The trial court granted the construction manager’s motions. Com-stock appeals the granting of the motion for summary judgment as to counts I and III and the denial of Comstock’s motion for rehearing, which requested leave to amend the complaint. No appeal is taken with respect to count II.
Resolution of the issues on appeal depends upon the construction of various provisions contained in the contract between the CDB and Comstock, principally the no-damage-for-delay provision contained in paragraph 4 — 12(C).
Paragraph 4 — 12(C) provides:
“C. The Contractor [Comstock] shall not be entitled to any claim for damaged [sic] or compensation from CDB on account of any delays ***.”
Both parties argue on appeal that this provision warrants judgment in their favor. Comstock argues that, in light of the fact that some provisions in the cоntract specifically refer to the construction manager with regard to claims and delays and that paragraph 4 — 12(C) does not mention the construction manager, paragraph 4 — 12(C) does not bar claims for delay by Comstock against the construction manager. Alternatively, Comstock suggests that paragraph 4 — 12(C) is ambiguous and thus raises a question of fact which would preclude summary judgment.
In contrast, the construction manager argues that it is entitled to the protection of paragraph 4 — 12(C) because the construction manager is a third-party beneficiary of the no-damage-for-delay provision, is entitled to the CDB’s privileges when performing the CDB’s responsibilities, and is released from liability for delay to the same extent that the CDB is released. In support of its arguments, the construction manager primarily relies upon the case of Bates & Rogers Construction Corp. v. Greeley & Hansen (1985),
In Bates & Rogers, the plaintiff-contractor, Bates & Rogers, entered into a contract with the North Shore Sanitary District (District). The defendants were retained by the District as engineers for the project. As in this case, the defendants-engineers did not execute a contract with the plaintiffs. The plaintiffs sought damages from the defendants on the grounds that the defendants were negligent in, among other things, exercising their powers as engineers for the project. After determining that the type of damages sought by the plaintiffs were in fact delay damages, the court addressed the issue of whether the exculpatory provision agreed to by the plaintiffs in their agreement with the District also barred suit against the defendants. That exculpatory provision provided:
“ ‘The Contractor agrees to make no claim for damages for delay in the performance of this Contract occasioned by any act or omission to act of the District or any of its representatives, or because of any injunction which may be brought against the District or its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herеin.’ ” (Emphasis omitted.)109 Ill. 2d 225 , 229.
The plaintiffs in Bates & Rogers argued that the defendants could not invoke this provision because the defendants were neither parties to the agreement between the plaintiffs and the District nor were they third-party beneficiaries of that agreement. The Illinois Supreme Court, however, hеld that the defendants were third-party beneficiaries and therefore were entitled to the protection of the no-damage-for-delay clause.
In determining whether the parties intended the defendants to be third-party beneficiaries, the court in Bates & Rogers relied upon various provisions in the contract and the circumstances surrounding the parties. The court first noted that the exculpatory provision specifically recognized that claims arising out of delays could be occasioned by the District and its representatives. The defendants were, in anоther provision of the contract, named as the District’s representative. The court also noted that the provision provided that the plaintiffs would be fully compensated by an extension of time for any delay-damages claim. Additionally, the court examined the contractual rеlationship between the District and the defendants, particularly the extent of responsibility that the defendants had over the management of the project. In light of these factors, the court concluded that because the District was relying extensively upon the skill of the defendants in the оperation of the project, it was logical that the District intended to exculpate the defendants from damage claims to ensure that the defendants would exercise their best judgment in regard to the District’s interests. (Bates & Rogers Construction Corp. v. Greeley & Hansen (1985),
Comstock argues that Bates & Rogers does not apply to this case because the exculpatory provision here does not specifically refer to the CDB’s representative, nor does it expressly state that an еxtension of time is the sole remedy. Accordingly, Comstock argues, this court should not imply the same protection to the defendants here that was granted in Bates & Rogers. We do not agree.
The contract between the CDB and Comstock expressly provides in article 3 — 01 that the construction manager is a representative of the CDB and has the power to act on the CDB’s behalf. Article 5 of the contract lists the duties, rights, and responsibilities of the construction manager. These responsibilities are extensive. They include not only maintaining the start and finish times of each component activity in the prоject, but also coordinating the management of all the contractors and procedures of construction. Additionally, as stated in paragraph 5A — 01, the construction manager was to assist the CDB in asserting its rights and performing its responsibilities in connection with the project. Moreover, as Comstock points out, the construction manager essentially had supervision and control over seven phases of the project, ranging from program analysis to project close-out.
Given this amount of responsibility, we believe that although paragraph 4 — 12(C) is not identicаl to the clause in Bates & Rogers, the differences noted here by Comstock do not sufficiently distinguish that case. In our opinion, the more important factor is that the same type of contractual relationship that existed in Bates & Rogers, as exemplified by the significant responsibility under the contract, is present in this case. Consequently, the same concerns noted by the Illinois Supreme Court, namely, the ability of the contractor to act for the District, equally apply here. Accordingly, we believe that under this rationale of Bates & Rogers, the CDB would also intend to protect the construction manager from claims so that the construction manager’s ability to act for the CDB would not be impaired.
In addition to arguing that Bates & Rogers is distinguishable from this case, Comstock argues that various other provisions in the contract evince an intent that claims will be brought against the constructiоn manager. Comstock points to paragraphs 4 — 12(A), 4 — 14(F), and 8 — 01 in this regard. Simply stated, paragraph 4 — 14(F) provides that if one contractor causes loss to another contractor and that other contractor brings an action against the construction manager, the contractor who caused the loss must defend and save harmless the construction manager. Rather than supporting Comstock’s position, we believe that this provision is further support for the fact that it was the intent of the agreement to protect the construction manager from suit. As for paragrаph 8 — 01, this provision in essence provides that a contractor shall not be required to indemnify the construction manager from claims that arise out of the construction manager’s own negligence. This provision, however, is merely a statement of the law in Illinois that a contractor may not indemnify himself from his own negligence. (Ill. Rev. Stat. 1985, ch. 29, par. 61; Davis v. Commonwealth Edison Co. (1975),
Comstock alternatively argues that paragraph 4 — 12(C) is ambiguous. A contract is ambiguous when its terms are reasonably capable of interpretation in more than one way. (Wilson v. Illinois Benedictine College (1983),
Comstock also argues on appeal that the trial court erred in denying its request to amend its complaint. Comstock argues that it should be granted leave to amend so as to allege an exception to the absolute bar of the exculpatory provision in paragraph 4 — 12(C). This court has recognized exceptions to exculpаtory clauses which could, under the proper facts, prevent the bar of those clauses. As this court stated in Bates & Rogers, exculpatory clauses have been held inapplicable where, for example, the contractee is not acting in good faith, the delay is unreаsonable in duration, the cause of the delay is not within the contemplation of the parties, or the delay is attributable to inexcusable ignorance or incompetence of the engineer. Bates & Rogers Construction Corp. v. North Shore Sanitary District (1980),
The decision of whether or not to allow an amendment to a complaint rests within the discretion of the trial court and will not be reversed absent a showing of abuse of that discretion. (Montgomery Ward & Co. v. Wetzel (1981),
Comstock’s final argument is that the trial court erred in granting summary judgment as to count III because Comstock is a third-party beneficiary of the contract between the construction manager and the CDB and therefore has the right to bring an action against the construction manager for breach of the contract between the CDB and the construction manager. Whether one is to be considered a third-party beneficiary depends upon the intention of the parties as that intention is gleaned from the contract and circumstances surrounding the parties at the time of its execution. (Carson Pirie Scott & Co. v. Parrett (1931),
For the foregoing reasons, the decision of the trial court granting summary judgment as to count I is affirmed in part and reversed and remanded to the extent that Comstock should be given leave to amend its complaint in accordance with this decision. The granting of summary judgment with respect to count III is affirmed.
Affirmed in part, and reversed and remanded in part.
JOHNSON and LINN, JJ., concur.