 |
Abstract
Over the past decade, almost every substantial commercial or construction case has contained breach of contract claims along with a variety of tort causes of action asserted alternatively or as additional and independent theories of recovery. Given the uncertain state of the law, it would be imprudent for plaintiffs' counsel to plead otherwise. The difficulty in dealing with such cases has eased to some degree based upon the Texas Supreme Court's invocation of an economic loss or "contort" analysis in its decisions in Jim Walter Homes, Inc. v. Reed and Southwestern Bell Telephone Co. v. DeLanney to deny negligence recovery in contract.
Subsequent appellate and Supreme Court decisions have both clarified and extended the Court's analysis, but other appellate and Supreme Court decisions have left additional questions unanswered. Does the Court's analysis reach only negligence claims or does it include all tort claims? How are fraudulent inducement cases affected? Can a fraud claim co-exist with an enforceable contract and/or an unenforceable contract? What does an "independent" tort mean under the current state of the law? This paper will address these issues and provide conclusions.
The realities of the construction industry clearly reflect that the number of delays, extent of delays, duration of delays, and uncertainty of delays, considered along with other pending projects, can present serious proof concerns with regard to extended or unabsorbed home office overhead. The utilization of a formula to compute overhead damage greatly simplifies the task of litigants. However, a formula, in light of the cases discussed in this paper, should never be applied automatically or mechanically. A quantum of proof is necessary to establish the threshold existence of injury. The nature of a contractor's damage attributable to either unabsorbed or extended home office overhead should be addressed and supported by evidence. With that threshold showing, courts will more readily allow such a claimant to utilize a formulaic measure to calculate the damage. As evidenced by the Court of Appeals' decision in Chilton, Texas courts are no less exacting in the proof they require.
|
|
You must have the free Adobe Acrobat Reader 4.0 (or greater) installed in your
computer in order to view or print this paper. It is available as a free
download from the Adobe Web site. If you do not have Acrobat Reader installed,
click the link to the left to download it. If a menu window opens before the paper, choose the "View"
option.
|
