Indiana Court of Appeals holds that no-waiver contract clause negates argument that change order time limitations were waived.

In Boyer Corp. Excavating v. Shook Construction and Ball State University Board of Trustees, the Indiana Court of Appeals denied Boyer Corp.’s argument that Shook Construction had waived the right to enforce a “Time Limits on Claims” clause.

Facts: Shook Construction served as general contractor for renovations to Ball State’s football stadium. It subcontracted with Boyer Corp. to perform a variety of tasks on the Project. After the Project’s completion, Boyer sought additional compensation.

After a bench trial, the trial court judge held, among other things, that many of Boyer Corp.’s requests were untimely. Boyer appealed that finding and argued that Shook had waived its right to enforce the 21-day change order time limit because that provision wase not routinely followed over the course of the project.

Decision: The Indiana Court of Appeals affirmed the trial court decision. Boyer admitted that it had submitted its request for additional compensation after the deadline but argued that the trial court erred in failing to find that Shook, by its conduct, waived its ability to enforce the 21-day limit. The appellate court disagreed:

We need not engage in a thorough examination into whether the court erred in not concluding that Shook waived its right to assert the Change Order Provision and the Claim Notice Provision, and in concluding that Boyer’s claims for additional compensation were therefore untimely, because Boyer agreed in the Subcontract that no action by Shook (or Ball State) shall constitute a waiver of a right. Specifically, Section 13.4.2 of the prime contract (the “No Waiver Provision”) states:

No action or failure to act by [Ball State], Architect or [Shook] shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing.

Thus, Shook did not waive the right to enforce the 21-day limit.

Although the Boyer decision is “unpublished”–and thus cannot regarded as precedent for other cases–it follows the holding in a published 2010 decision, Weigand Constr. Co., Inc. v. Stephens Fabrication, Inc.  In that case, which involved identical no-waiver language, the Indiana Court of Appeals held:  “even if the record showed undisputed facts that would support a waiver argument—which it does not,” the no waiver provisions “would prevent us from finding that Weigand waived its right to enforce the Claim Provision.”