Subcontractor’s Waiver of Consequential Damages is Enforced where the Waiver Clause was Incorporated by Reference from the Prime Contract

by Kent Holland | Feb 18, 2013 | Newsletter Article

Where a subcontract contained an “incorporation by reference” clause, expressly incorporating the terms of the prime contract between the general contractor and project owner, the “waiver of consequential damages” clause of the prime contract flowed down to the...

Subcontractor’s Waiver of Claims Against Payment Bond is Void and Unenforceable

by Kent Holland | Feb 18, 2013 | Newsletter Article

Whereby the terms of its contract, a subcontract waived its rights to make a claim against the prime contractors payment bond, the Supreme Court of Massachusetts held the waiver to be contrary to public policy and, therefore, void and unenforceable.  In Costa v. Brait...

Arbitration Results Between Owner and Contractor Have no Collateral Estoppel Affect in Subsequent Litigation Against Architect (Lost Profits not Recoverable in any Event)

by Kent Holland | Feb 18, 2013 | Newsletter Article

After a project owner lost its arbitration against a construction contractor it filed a lawsuit against its Architect to recover damages for breach of contract on the same project. The trial court granted summary judgment to the Architect on the basis that the adverse...

Engineer Owed Independent Duty to a Construction Contractor to Provide Design Specifications That Do Not Cause Delays and Disruptions

by Kent Holland | Feb 18, 2013 | Newsletter Article

Where a project owner assessed liquidated damages against its construction contractor for untimely completion, the contractor filed a claim against the project engineer asserting that the delay was due to defective plans and specifications, and also that the...

Condominium Association Barred by Economic Loss Doctrine from Suing Consultant for Repair Costs, and Lacks Third Party Beneficiary Rights to Sue the Consultant for Breach of Warranty

by Kent Holland | Feb 18, 2013 | Newsletter Article

Where construction defects caused significant repair costs, a condominum association at Stratton Mountain (along with the project developer) sued and settled with the construction contractor for the defects for over $7 million but then incurred more than that in...

Attorneys Fees Recovered to Enforce Indemnity Agreement

by Kent Holland | Dec 28, 2012 | indemnification clause, Newsletter Article

A “choice of law” provision in a contract provides for the law of a specified state to govern the contract and disputes between the parties that arise out of the contract.  Often the law of the state where the project is performed is selected as the governing law.  It...