Client Alerts & Publications

Old Case Teaches New Tricks – Zachry and the Port of Houston

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Eight years after completion of the wharf project, Zachry and the Port of Houston continue to slug it out in the appellate courts and continue to refine Texas construction law along the way. In the latest appellate opinion, the Court of Appeals details the general contractor’s control of the means and methods of their work without interference from a governmental entity. It also supports a subcontractor’s use of a pass-through claim as a cost efficient way to recover damages.

By now most of us are familiar with the project and the previous decisions. Zachry sued the Port claiming breach after the Port denied Zachry the right to continue construction using its frozen cuto. wall. The Texas Supreme Court upheld the jury’s $20 million verdict for Zachry, ruling that the Port’s “no damages for delay” clause would not bar Zachry’s claim in light of the Port’s active interference with Zachry’s work. The Supreme Court then sent the case back to the Court of Appeals to consider other arguments that the Port had made.

That led to the most recent decision. In December, 2016, the Houston Fourteenth Court of Appeals ruled in favor of Zachry on all issues and affirmed the jury verdict. In doing so, the Court of Appeals provides several lessons or reminders on Texas Construction law.

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