James Construction Group, LLC and Primoris Services Corporation v. Westlake Chemical Corporation

Summary

This partial dissent addresses whether a contractual provision waiving consequential damages and stating that no claim shall be made for such damages constitutes both a damages waiver and a covenant not to sue. Justice Boyd concludes that Westlake breached the covenant by asserting consequential-damages claims and that James should recover the attorney’s fees incurred in defending those claims. The dissent agrees that Westlake’s oral notice did not substantially comply with the contract’s written-notice requirement and that Westlake could not recover replacement costs.

Holdings

1. Oral notice cannot constitute substantial compliance with a contractual written-notice requirement.
2. Westlake could not recover the costs it incurred when it replaced James because its oral notice failed to substantially comply with the contract's written-notice requirement and the contract did not otherwise authorize recovery of those costs.
3. The contract's statement that "no claim shall be made" for consequential damages constituted a covenant not to sue for such damages, separate from the mutual waiver of consequential damages.
4. Because Westlake breached the covenant not to sue for consequential damages, James was entitled to the jury's award of attorney's fees incurred in defending against Westlake's consequential-damages claims.

Questions Presented

1. Whether the contractual language providing that no claim shall be made for consequential damages constitutes a covenant not to sue, in addition to a waiver of consequential damages.
2. Whether breach of that covenant would permit James to recover attorney's fees incurred in defending Westlake's consequential-damages claims.
3. Whether oral notice could constitute substantial compliance with the contract's written-notice requirement.
4. Whether Westlake could recover the costs incurred when it replaced James after providing oral rather than written notice.

Disposition

other