Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO MALCOLM INTERNATIONAL, LLC,
Plaintiff, v. No. 1:23-CV-00188-SMD-JMR FISHER SAND & GRAVEL-NEW
MEXICO, INC.,
Defendant,
FISHER SAND & GRAVEL-NEW
MEXICO, INC.
Counter-Plaintiff ,
v.
MALCOLM INTERNATIONAL, LLC,
Counter-Defendant . OMNIBUS OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION
FOR DECLARATORY JUDGMENT
THIS MATTER
is before the Court on Defendant Fisher Sand & Grаvel’s (“Fisher’s”) motion for summary judgment. Doc. 49 (“Def.’s SJ Mot.”). Plaintiff Malcolm International, LLC (“Malcolm”) filed its response, and Defendant filed its reply. Doc. 51 (“Pl.’s SJ Resp.”); Doc. 52 (“Def.’s Reply”).
FACTUAL BACKGROUND
This case arises from a contractual dispute between Fisher and Malcolm. Doc. 1 (“Compl.”). In March of 2018, the New Mexico Department of Transportation (“NMDOT”) selected Fisher as the primary contractor for construction of a bridge in Quay County, New Mexico. Compl. ¶¶ 9–10. Fisher then subcontracted Malcolm to complete the cast-in-place piers and other bridge components (“the Project”). Id. ¶ 11. Prior to the Project’s start, Fisher and NMDOT concluded that raising the piers an extra five feet out of the water would make the bridge more environmentally sound. Id. ¶ 12. Fisher informed Malcolm of this design change and Malcolm subsequently submitted аn estimate of the associated costs of redesigning the piers. Id. ¶¶ 16–17. In October of 2018, Fisher and NMDOT executed Change Order Six, approving the new plan and granting a forty-five-day extension to Fisher. Id. ¶ 19. Malcolm was not a party to the Change Order. Id. ¶ 14. Fisher agreed to absorb the cost of the revised design, but did not guarantee that Malcolm would be compensated for costs associated with the Project’s new schedule. Id. ¶¶ 13, 18.
The pier redesign did not alter the scope of the work that Malcolm was hired to complete (one bridge, two abutments, two piers, and two disc bearings). Id. ¶ 15. It did, however, delay Malcolm’s start date and increase the quantity of rebar and concrete needed to complete the piers. Id. Fisher paid Malcolm for the additional materials, but not for the extra labor or other costs related to the delay. Id. ¶ 30. Malcolm and Fisher pursued administrative remedies to recover these costs from NMDOT. Id. ¶ 23. NMDOT denied Malcolm’s claim. Id. Malcolm, Fisher, and NMDOT then participated in an unsuccessful Public Works mediation. Id. ¶ 24. Following these efforts, Fisher did not file a summons and complaint against NMDOT on Malcolm’s behalf. Id. ¶ 25. Malcolm asked Fisher to do so. Id. ¶ 26. Fisher replied that it was only willing to file on Malcolm’s behalf if Malcolm agreed to release Fisher of any liability for damages. Id. Malcolm refused and Fisher never filed the complaint.
PROCEDURAL BACKGROUND
Malcolm sued Fisher on March 6, 2023, in the United States District Court for the District of New Mexico, invoking the court’s diversity jurisdiction. Compl. at 1. See 28 U.S.C. § 1332. The complaint alleges three counts: breach of contract, unjust enrichment, and breach of the duty of good faith and fair dealing. Id. at 4–6. In April of 2023, Fisher moved to dismiss all three claims. Doc. 5 (“Def.’s Mot. to Dismiss.”). The court dismissed Malcolm’s claims for unjust enrichment and breach of the duty of good faith and fair dealing. Doc. 13 (“Order on Def.’s Mot. to Dismiss”) at 7. The remaining claim for breach of contract was permitted to proceed on either of two theories: that Fisher breached the contract by failing to preserve Malcolm’s claim against NMDOT for compensation or that Fisher breached by failing to compensate Malcolm for increased costs that Malcolm suffered because of delays in the project. Id. at 7–8. The Parties proceeded with discovery. Doc. 40. Fisher now seeks summary judgment on Malcolm’s breach of contract claim and brings a crossclaim for declaratory judgment, requesting that the Court award Fisher costs and attorneys’ fees associated with the litigation. Def.’s SJ Mot. at 13.
LEGAL STANDARD
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movаnt is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a);
see Butler v. Daimler Trucks N. Am., LLC
,
DISCUSSION
A. Undisputed Material Facts
The Court begins with the Parties’ statements of undisputed material facts (“UMFs”) and
construes any disputed fact in the light most favorable to Malcolm as the non-moving party.
Scott
v. Harris
,
Malcolm’s statement of materials facts does not comply with the Local Rules; its response
to Fisher’s UMF is unnumbered, at times lacking citation to the record, and its additional material
facts, which should be lettered, are instead numbered. Pl.’s SJ Resp. at 3–6 (“Pl.’s UMF”).
However, because these errors are largely issues of formatting, the Court will consider the facts
properly disputed where Malcolm has included citations to the record.
Cf. Skowron v. C.H.
Robinson Co.
,
On January 11, 2018, Fisher entered into a subcontract with Malcolm for the Project. Def.’s UMF ¶ 1; Pl.’s UMF at 3; Def.’s SJ Mot . , Ex. A (“the Contract”) at 1. Two months later, Fisher submitted a request to NMDOT to redesign the pier footings to make them more structurally sound. Def.’s UMF ¶ 2; Pl.’s UMF at 2. Fisher informed Malcolm of the need to raise the piers and Malcolm understood that this alteration would delay its start date. [2] Def.’s UMF ¶ 3; Pl.’s UMF ¶ 3. Fisher and NMDOT then executed Change Order Six to ratify the design change. Def.’s UMF ¶ 10; Pl.’s UMF аt 3. Malcolm did not sign the Change Order. Pl.’s UMF ¶ A.; Def.’s Resp. to Pl.’s UMF ¶ A. In Fisher’s original contract with NMDOT, the company had agreed to cover “any additional costs” resulting from a design alteration. Def.’s UMF ¶ 11; Pl.’s UMF at 3. Change Order 6 amended that language to limit Fisher’s liability to the “costs for an environmentally safer project, enhanced constructability of the footings, and a safer work area for the employees.” Def.’s UMF ¶ 11; Pl.’s UMF at 3. Malcolm and Fisher did not amend their original subcontract to reflect the design change and did not execute a written agreement obligating Fisher to pay Malcolm for delay costs. Def.’s UMF ¶ 7; Pl.’s UMF ¶ 7. [3]
Malcolm completed the Project without a change order from Fisher. Pl.’s UMF ¶ B; Def.’s Resp. to Pl.’s UMF ¶ B. The redesign did not alter the work assigned to Malcolm—two disc bearings, two piers, two abutments, and one bridge—but impacted thе quantities of rebar and concrete needed, the Project’s duration, the cost of performance, and the conditions under which work had to be performed. Def.’s UMF ¶¶ 8, 9; Pl.’s UMF ¶¶ 8, C. [4] Fisher compensated Malcolm for the increase in materials. Def.’s UMF ¶ 9; Pl.’s UMF at 3. Malcolm then submitted a compensation claim to NMDOT for other attendant costs. Def.’s UMF ¶ 14; Pl.’s UMF at 3. NMDOT denied the claim due to procedural errors. Def.’s UMF ¶ 15; Pl.’s UMF at 3. The Change Order had no impact on Malcolm’s compensation claim and was not the basis for its denial. Def.’s UMF ¶ 16; Pl.’s UMF at 3.
B. The Parties’ Arguments
Originally, Malcolm alleged breach of contract based on Fisher’s failure to adequately
represent its claims for compensation before NMDOT and failure to compensate it for the
increased cost of performance. Compl. ¶ 30. Malcolm appears to have abandoned the first theory;
it briefly references this claim, but provides no relevant facts. Pl.’s SJ Resp. at 9. Malcolm simply
ends its one-sentence argument with the assertion that Fisher’s representation is “another genuine
fact issue precluding summary judgment.” The statement that Fisher’s representation is
inherently a “fact issue” cannot defeat a motion for summary judgment.
Parker v. Town of Chelsea
,
275 F. App’x 769, 773 (10th Cir. 2008) (“Conclusory statements are insufficient to overcome
defendants’ motion for summary judgment.”);
Presbyterian Healthcare Servs. v. Factory Mut. Ins.
Co.
,
What remains is Malcolm’s theory that Fisher’s inadequate reimbursement of its costs constituted a breach of Article 10 of the Contract. Pl.’s SJ Resp. at 6–7. Fisher responds that Article 10 is not only inapplicable to Malcolm’s claim for damages, but that Article 2 bars recovery entirely. Def.’s SJ Mot. at 11–12. The Court addresses each article in turn.
1. Article 10
Article 10 of the Contract is a “changes clause” and reads as follows: The Contractor or the Owner may at any time by written order and without notice to the Subcontractor’s sureties, make changes in, additions to or omissions from the work to be performed under this Subcontract. The Subcontractor shall promptly proceed with the performance of this Subcontract as so changed. If the change is for work not itemized on Schedule C, any increase or decrease in the Subcontract price resulting from such changes shall be agreed upon in writing by the parties hereto рrior to the performance of the work. Any changes in quantities itemized on Schedule C shall cause an adjustment in Subcontract price at the unit prices set forth on that Schedule. The Contractor will pay for extra work performed and materials furnished by the Subcontractor.
Contract at 3. Article 10 intersects with Schedule C of the Contract, which enumerates the quantity, per item price, and total price of materials for the Project. Compl., Ex. 1 at 5 (“Schedule C”). Article 10 splits compensation for changed work into two categories: work within Schedule C and work outside of Schedule C. Contract at 3. If the work is not itemized in Schedule C, then the Parties must agree to any increase or decrease in price resulting from the change in writing. Id. If the work is included in Schedule C, the total price will be adjusted based on the unit price set forth there.
Malcolm argues that Fisher changed Malcolm’s work “both by redesigning the pier footings and by modifying the preliminary schedule on which Malcolm’s bid had been based.” Pl.’s SJ Resp. at 6. The Parties agree that Fisher paid Malcolm for the increase in Schedule C materials—namely, rebar and concrete units. Def.’s UMF ¶ 9; Pl.’s UMF at 3; see Schedule C. However, Malcolm insists that Article 10’s final sentence obligates Fisher to pay for “extra work performed and materials furnished,” regardless of whether there was a written order in place or the items are found in Schedule C. Pl.’s SJ Resp. at 7. Accordingly, Malcolm is entitled to “additional costs due to delay or due to performance of the work in adverse weather.” Pl.’s SJ Resp. at 7.
Fisher responds that Malcolm cannot recover under Article 10 because Malcolm pursues damages that fall outside of Schedule C and are therefore subject to the “written order” requirement. Def.’s SJ Mot. at 12. Because Malcolm has not identified a “written order” between the Parties, its claim fails. Id. Fisher also disagrees with Malcolm’s interpretation of Article 10’s concluding sentence. Def.’s Reply at 6. Fisher contends that its duty to pay for extra work and materials furnished is limited to the two scenarios described earlier in Article 10’s text. On Fisher’s reading, Article 10 does not create an “unlimited circumstance under which additional compensation can be paid.” Id. Instead, it specifies that that the Contractor will pay for extra work and materials furnished when there is a written order for non-Schedule C item or there is a written order. Moreover, even if the Court interpreted Article 10’s final sentence as entitling Malcolm to damages for all “extra work and materials furnished,” Fisher believes that Malcolm’s claim seeks to recover delay costs, not extra work, and is therefore outside of Article 10. at 5.
2. Article 2
On the premise that Malcolm’s costs are delay costs, Fisher asserts that Article 2 of the Contract precludes relief. Def.’s SJ Mot. at 11. Article 2, often referred to in construction contracts as a “no-damages-for-delay” clause, [5] limits Fisher’s liability for delays in the Project. As originally drafted, Article 2 read:
No claims shall be asserted by Subcontractor against Contractor or Owner for delays they may cause in the Subcontractor’s work. Subcontractor shall not be entitled to any extra compensation from Contractor for any suspension, delay, or аcceleration, regardless of who is responsible for same, unless specifically agreed to in writing by the Contractor.
Id. During negotiations, the Parties removed the first sentence. Pl.’s SJ Resp. at 9. Thus, as signed, the Contract permits Malcolm to assert claims against Fisher for delays, but prohibits “extra compensation” without a written agreement. Id.
Fisher argues that (1) all of the Malcolm’s alleged costs are “delay costs” and (2) Article 2 bars recovery because Malcolm has not produced evidence of a written agreement. Def.’s SJ Mot. at 11. Malcolm concedes that the Contract “leaves the exception to the original bar on delay damages, namely where Fisher agreed in writing,” but interprets this language as “allowing compensation when Fisher acknowledges having changed the schedule and/or design.” Pl.’s SJ Resp. at 8–9. Malcolm then shifts to arguing that, even if a written agreement is typically required, Fisher administered the contract in a way that indicated written modifications were unnecessary. Pl.’s SJ Resp. at 10. In particular, Malcolm contends that because Fisher authorized and paid for pier design change without a change order, Article 2’s written agreement requirement was likewise waived. Id. Malcolm then accuses Fisher of relying on the lack of written agreement as a “legal pretext for avoiding its promise to pay Malcolm for costs arising from damages” and urges that Fisher should be estopped from using this defense to shield itself from liability. Alternatively, Malcolm asks the Court to recognize an exception to Article 2 for unanticipated delays. Id. at 11. Malcolm acknowlеdges that the New Mexico Supreme Court has never recognized an “unforeseen” delay exemption to no-damages-for-delay clauses, but advocates for its use here because the design change “was not contemplated by Fisher or Malcolm when they entered into the subcontract.” Id. If the Court does adopt this exemption, Malcolm argues that summary judgment is improper because the “reasonable scope of the parties’ contemplation” is “inherently a fact based issue.” Id.
C. Analysis
Because this case is before the Court on diversity jurisdiction, and the Contract was made
and executed in New Mexico, New Mexico law governs Malcolm’s claim for breach of contract.
Sakar v. Hartford Ins. Co. of the Midwest
, CV 12-0861,
A plaintiff claiming breach of contract has the burden of proving the existence of the
contract, breach of the contract, causation, and damages.
Cent. Mkt., Ltd. v. Multi-Concept Hosp.,
LLC
,
1. Malcolm’s Claims Are for Delay Damages and Not for Extra Work.
Before addressing whether Malcolm is entitled to damages under the Contract, the Court
answers the question of whether Malcom seeks compensation for “delay” costs or “extra work”
costs to determine if Article 10 applies. “Extra work” refers to tasks “not contemplated by the
contract.”
McKinney Drilling Co. v. Collins Co.
,
Malcolm disputes Fisher’s statement that the pier redesign “did not alter the amount of
work Malcolm was performing.” Def.’s UMF ¶ 8; Pl.’s UMF ¶ 8. Malcolm avers that Fisher
contradicts itself by admitting that the design change “altered the quantities of work required.”
Pl.’s UMF ¶ 8. Though the phrase “quantities of work” appears to be a synonym for “extra work,”
the next sentence reveals that what Malcolm is referring to is the change in “unit quantities,”
meaning raw materials. Those additional units, however, offer no basis for relief because Fisher
already paid Malcolm for them. Def.’s UMF ¶ 9; Pl.’s UMF at 3;
cf. Benavidez Constr. LLC v.
Lewicki
, No. A-1-CA-40135,
Beyond the pier redesign, Malcolm has not identified other “tasks” Fisher required it to
complete. Its response simply declares that “Fisher changed Malcolm’s work by redesigning thе
pier footings and by modifying the preliminary schedule.” Pl.’s SJ Resp. at 6. Malcolm makes no
effort to rebut the testimony of its own vice president, Vince Castro, that, following the design
change, Malcolm was still only contracted for two disc bearings, two piers, two abutments, and
one bridge. Def.’s SJ Mot., Ex. C (“Castro Dep.”) at 54:1–10. Though Malcolm may be correct
that the pier redesign changed the Project’s duration, cost of performance, and conditions under
which the work was performed, these costs are not found in Schedule C and would require a written
order for compensation.
Pecos
,
Even presuming that the design change altered the Project’s scope in some way, and that
Malcolm could avoid Article 10’s written authorization requirement, Malсolm’s merger of its extra
work costs with its delay costs dooms its claim. Because delay costs are often difficult to
distinguish from extra work or other costs, the subcontractor must specify the source of its costs
to circumvent a no-damages-for-delay clause.
Edward E. Gillen Co. v. City of Lake Forest
, 3 F.3d
192, 195 (7th Cir. 1993) (affirming grant of summary judgment on claim of delay damages where
plaintiff “made no effort to identify particular costs that did not belong to the rubric of delay
damages”);
Net. Constr., Inc. v. C & C Rehab & Constr., Inc.
,
2. Article 2 Precludes Malcolm’s Damages for Delay Costs.
Given that Malcolm is seeking delay damages, the Court must consider Fisher’s argument
that Article 2 bars Malcolm’s claims. Def.’s SJ Mot. at 11. The Court begins with Article 10’s
plain language and asks whether its terms are ambiguous.
Bankert v. 10 Roads Express, LLC
, ___
P.3d ___, 2025 WL 892720, at *5 (N.M. Ct. App. Mar. 17, 2025). Ambiguity arises where a
contract is “reasonably and fairly susceptible of different constructions.”
Mark V, Inc. v. Mellekas
,
845 P.2d 1232, 1235 (N.M. 1993). To conduct this analysis, the Court must look beyond the
Contract’s four corners and construe the document as a whole, including the circumstances of its
negotiation.
Medina v. Sunstate Realty, Inc
,
a. Article 2 Requires Written Authorization for the Contractor to be Liable for Delay Damages.
Article 2 states that Malcolm is nоt “entitled to any extra compensation from Contractor
for any suspension, delay, or acceleration . . . unless specifically agreed to in writing.” Contract at
1. Malcolm concedes that Article 2 requires a written agreement for the subcontractor to recover
delay costs and that the Parties did not execute one. Def.’s UMF ¶¶ 6–7; Pl.’s UMF at 3.
Malcolm’s suggestion that Article 2 permits extra compensation where the contractor
“acknowledges having changed the schedule and/or design” has no textual foundation; Article 2
does not condition compensation on a particular schedule, mention payment for design changes,
or offer alternative methods for recovery outside of written agreement. Disagreement over
interpretation is not the same аs ambiguity.
Constr. Contracting & Mgmt., Inc. v. McConnell
, 815
P.2d 1161, 1164 (N.M. 1991) (reiterating that “[t]he mere fact that the parties are in disagreement
on construction to be given to the contract does not necessarily establish an ambiguity” (quoting
Levenson v. Mobley
,
b. The Parties’ Did Not Modify Article 2’s Written Agreement Requirement Through Their Conduct.
In the absence of a written agreement, Malcolm attempts to argue that the Fisher waived
Article 2’s written agreement requirement through its conduct. In New Mexico, a party’s conduct
or statements may amend a contract, even where the contract states that all modifications must be
in writing.
Medina
,
Malcolm has failed to present “a clear statement, oral or written, or clear conduct,
indicating an intent” to modify Article 2. What Malcolm cites to is the general proposition that
“Fisher during the course of the project did not require written agreements modifying Malcolm’s
subcontract.” Pl.’s SJ Resp. at 10. Specifically, Fisher changed the design of the piers without
Malcolm signing a change order.
Id.
; Def.’s UMF ¶ 2. Malcolm then makes the inferential leap
that, because these design alterations occurred absent a written order, Fisher’s administration of
the contract suggested that written modifications were no longer necessary for any of the
provisions. Pl.’s SJ Resp. at 10. Even accepting arguendo, that Fisher modified Article 10 without
written authorization, this conduct does not translate into a modification of Article 2. Malcolm
has not included a single piece of evidence, much less clear and convincing evidence, waiving
Article 2’s written agreement requirement. Malcolm posits that “fact testimony will show” the
Parties’ intent to modify the contract. At this stage, Malcolm cannot rely on the specter of
future evidence to support its claim; it must provide that evidence.
Conaway v. Smith
, 853 F.2d
789, 794 (10th Cir. 1988) (explaining that a party “may not escape summary judgment in the mere
hope that something will turn uр at trial). The Court will not “search the record” for “dormant
evidence” to the contrary and thus concludes that there is no genuine dispute over whether Article
2 was modified.
Chavez v. New Mexico
,
The Court also finds what appears to be a claim for promissory estoppel based on Fisher’s conduct unconvincing. [7] The elements of promissory estoppel are as follows:
(1) an actual promise must have been made which in fact induced the promisee’s action or forbearance; (2) the promisee’s reliance on the promise must have been reasonable; (3) the promisee’s action or forbearance must have amounted to a substantial change in position; (4) the promisee’s action or forbearance must have been actually foreseen or reasonably foreseeable to the promisor when making the promise; аnd (5) enforcement of the promise is required to prevent injustice.
Strata Prod. Co. v. Mercury Expl. Co.
,
c. The “Uncontemplated Delay” Exemption Does Not Apply to Article 2.
The Court next addresses, and ultimately rejects, Malcolm’s argument that its claim is
exempted from Article 2 because the delays were unanticipated. The New Mexico Supreme Court
has never considered no-damages-for delay clauses, nor the exceptions that Malcolm advocates
for. This Court’s will therefore look to precedent and relevant guidance to “predict what the state's
highest court would do.”
Wade
,
Malcolm’s contention that “[m]ost states which have grappled with [no-damages-for-delay
clauses] have found that while the clauses have some enforceability they are subject to multiple
exceptions,” though facially true, is misleading. Pl.’s SJ Resp. at 11. The most commonly
recognized exception to no-damages-for-delays clauses are related to the party’s breach of the duty
of good faith and fair dealing.
[8]
Malcolm’s good faith and fair dealing claim against Fisher has
already been dismissed.
See
Order on Def.’s Mot. to Dismiss at 7. Some states also recognize an
exception where the delay “was not contemplated by the parties,” but modern courts have
increasingly refused to adopt it.
Law Co. v. Mohawk Constr. & Supply Co.
,
To review, Malcolm concedes that Article 2 requires the subcontractor to obtain written agreement to recover delay damages, that there was no written agreement, and that Fisher compensated Malcolm in full for the changed quantities in materials. Def.’s UMF ¶¶ 6, 7, 9; Pl.’s UMF at 3. Malcolm has not presented any evidence of costs unrelated to the Projеct’s delay nor evidence of conduct-based modification. The Court therefore grants Fisher’s motion for summary judgment on Malcolm’s claim for breach of contract.
D. The Court Denies Fisher’s Motion for Declaratory Judgment.
Lastly, the Court addresses Fisher’s claim for declaratory judgment. Unlike Malcolm’s
contract claims, Fisher’s counterclaim for declaratory judgment is governed by federal law.
Miller
v. Cincinnati Ins. Co.
,
(1) whether a declaratory action would settle the controversy; (2) whether it would serve a useful purpose in clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race to res judicata; (4) whether use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which is better or more effective.
State Farm Fire & Cas. Co. v. Mhoon
,
Declаratory judgment is not warranted where it will “serve no useful purpose.”
AmSouth
Bank v. Dale
,
Declining to enter redundant declaratory judgments aligns with the
Mhoon
factors. Where
other motions will dispose of the controversy, there is an alternative remedy readily available and
declaratory judgment will not settle the dispute nor serve a useful purpose in clarifying legal rights.
In this case, Fisher argues that it is entitled to declaratory judgment for the “same reasons” it is
entitled to summary judgment. Def.’s SJ Mot. at 13. Because the factual and legal theories
undergirding these motions are identical, declaratory judgment is inappropriate.
Clearwater Enter.
v. Leggett & Platt
,
Inc.
, No. CIV-23-46,
CONCLUSION
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s motion for summary judgment on Plaintiff’s claim for breach of contract is granted.
IT IS FURTHER ORDERED that Defendant’s motion for declaratory judgment is denied.
____________________________________ SARAH M. DAVENPORT UNITED STATES DISTRICT JUDGE
Notes
[1] The paragraph citations to Malcolm’s UMF are derived from Fisher’s numbered version. Where Malcolm has combined its response to multiple UMFs into one sentence, the Court cites to the page number. Malcolm’s additional UMF will be cited to as though they had been correctly lettered rather than numbered (1=A, 2=B, 3=C).
[2] Malcolm does not effectively dispute when it first learned of the “nature and extent of cost and time
impacts” from the design change. Pl.’s UMF ¶ 3. Though Malcolm disagrees with Fisher’s interpretation of various
deposition transcripts, Malcolm’s response lacks any record citations to contradict Fisher’s conclusion.
Id.
Fisher’s
interpretation is therefore treated as undisputed.
Coleman v. Blue Cross Blue Shield of Kan., Inc.
,
[3] Malcolm “disputes” this fact. Pl.’s UMF ¶ 7. Despite agreeing that “there was no written modification to
the subcontract,” Plaintiff then explains why other sections of the contract supports its claim for additional
compensation. Whether thе contract’s terms entitle Malcolm to compensation is a legal, not factual, dispute and
Malcolm’s statement as to the law does not receive any favorable interpretation from the Court.
See Glassock v.
McCotter
,
[4] Malcolm and Fisher disagree over whether the design change altered the scope of Malcolm’s work. Though both Parties acknowledge that Malcolm required more rebar and concrete than initially expected, Fisher characterizes that modification as a change in unit quantities rather than in the work Malcolm was hired to perform. Def.’s UMF ¶ 8. Malcolm does not offer any evidence to controvert the fact that the final product it was hired to construct changed but digresses into other costs that the delay caused. Pl.’s UMF ¶ 8. The Court thus adopts a narrow definition of “sсope of work” and means only that Malcolm’s expected output was unchanged.
[5] No-damages-for-delay clauses shield contractors from suits arising from changes in the construction
project’s schedule. The New Mexico Supreme Court has not addressed their enforceability, but they are widely
accepted in other jurisdictions.
See, e.g.
,
Port Chester Elec. Constr. Corp., v. HBE Corp.
,
[6] During his deposition, Castro agreed that “because of the delay in the critical path, Malcolm was unable to start its scope of work until August of 2018 rather than March of 2018 as planned.” Castro Dep. at 8:3–9:23. He later affirmed that “[w]hat the design change did is pushed out the start date of Malcolm’s work, which Malcolm contends caused it to incur a whole bunch of extra costs that it didn’t plan fоr[.]” Castro Dep. 70:5–14.
[7] Malcolm does not characterize its argument as one for promissory estoppel, but refers to Fisher’s “promise” and asks that Fisher be “estopped” from relying on Article 2’s written agreement requirement. Pl.’s SJ Resp. at 10. Construing Malcolm’s pleadings in the most favorable possible light, the Court interprets Malcolm’s argument as one for promissory estoppel.
[8] The four widely recognized exceptions to no damages for delay clauses “relate directly to and are logical
extensions of the implied covenant of good faith and fair dealing.”
J.A. Jones Constr. Co. v. Lehrer McGovern Bovis,
Inc.
,