(concurring) —As noted by the majority, RCW 4.24.360 provides that any clause in a construction contract that “purports to waive, release, or extinguish the rights of a contractor ... to damages or an equitable adjustment arising out of unreasonable delay in performance which delay is caused by the acts or omissions of the contractee or persons acting for the contractee is against public policy and is void and unenforceable.”
¶31 At issue in this case is whether the clause in this construction contract that bars Scoccolo from recovering additional compensation because of delay caused by any utility company is void under this statute. More particularly, at issue is whether, in the circumstances of this case, Puget Sound Power and Light and TCI Cable “acted for” the city when they removed and relocated their facilities in the course of the street widening project. Unfortunately, what is not at issue is the general meaning of “acting for.” Thus, this court cannot address the important question of whether the instructions given in this case correctly stated the law.
¶32 Below, the parties disputed what it means for a person to “act for” a contractee. The city argued that the term encompasses only legal “agents” of the contractee. Scoccolo contended that the legislature intended a broader meaning. At trial the court accepted Scoccolo’s position and instructéd the jury that “acting for” means “acting in place of, in the interest of, or in favor of” the city. For purposes of review, the Court of Appeals accepted the trial court’s definitional instruction, which reflected Scoccolo’s position. *523Scoccolo Constr., Inc. v. City of Renton, 125 Wn. App. 150, 161, ¶20, 103 P.3d 1249 (2005). This instruction is not challenged here. Accordingly, the trial court’s broad definition of “acting for” is the law of the case.
¶33 Under a different definition of “acting for,” I might agree with the Court of Appeals that the utilities did not “act for” the city simply because, under their franchise agreements with the city, they could be compelled at their expense to relocate their facilities to accommodate city street widening projects. Certainly the utilities, when they relocate facilities pursuant to their franchise agreements, “act for themselves — in order to preserve the conditions of their grants,” as the Court of Appeals observed. Id. at 165, ¶ 27. But, given the broad definition of “acting for” in the jury instruction as acting “in the interest of” or “in favor of” the city and given that the instruction is law of the case, it does not seem a stretch to say that any work done by the utilities to advance the city’s project is done in the city’s interest and, thus, “for” the city. Accordingly, I concur in the result reached by the majority.