By Will W. Allensworth and Karly Houchin
Presented to the 34th Annual Texas Construction Law Conference
The paper provides a brief primer on the nuanced distinction between direct and consequential damages, followed by recent (as of 2021) developments in case law analyzing the distinction. It also addresses a major (but overlooked) effect of the Supreme Court’s decision in Zachry, and its potential effect on how delay damages are characterized in construction disputes. Finally, the paper closes with examples for how to draft an enforceable consequential damage waivers based on recent (and some not-so-recent) court decisions.