Experience

Breach of AIA Construction Contract and Waiver of Consequential Damages By Owner

Our client, a general contractor, and the project owner signed an American Institute of Architect A101 contract with accompanying A201 general conditions. The project included construction of a new office/retail building, and associated site work and parking facilities in Amherst, New Hampshire. The project site included an existing building and several underground septic structures and piping that needed to be demolished a removed before construction could begin in earnest on the new building. Prior to signing the contract, the owner removed this demolition work from our client' scope of work and reduced the contract price accordingly. The owner's effort to save money on the demolition work, however, did not go as planned. The owner's demolition contractor did not diligently pursue its work and the project languished. Instead of starting work on the new building on June 1st or client could not commence work until late July. Despite this set back our client delivered the completed project in a shorter overall timeframe than originally planned though later than the original completion deadline that was premised on the June 1 start date. The owner, nonetheless, sought to hold our client responsible for the delays and withhold funds due to purported loss of rental income.

Our client filed suit in New Hampshire Superior Court and placed a mechanic's lien on the project. As required by the contract, the parties then proceeded to arbitration under the American Arbitration Association Rules. In arbitration we asserted that the owner's claim was factually unsupportable and at odds with the mutual waiver of consequential damages clause in the AIA A201 terms and conditions. The arbitrator agreed and awarded our client the full contract balance and interest.

Firm Highlights

Matter

Defense of Contractor - Davis-Bacon Prevailing Wage Claims

This case concerned the construction of a marine boat dock on an island in Boston Harbor. The Plaintiff claimed entitlement to unpaid wages and enhanced wages under the federal prevailing wage statute known as...

Matter

Client Recovers on Claim On Differing Site Conditions Claim Involving Subsurface Contaminated Soils

We successfully resolved a substantial claim for our client, a large, Maine based site contractor, stemming from differing site conditions encountered on an aviation facility owned by project federal government. The case stemmed from...

Publication/Podcast

Finding Teeth in Massachusetts' Prompt Payment Act

In Tocci v. IRIV Partners, LLC, Boston Harbor Industrial Development LLC and Hudson Insurance Co. (November 19, 2020, Sup. Ct. 19-405), the Massachusetts Superior Court granted summary judgment on a contractor’s breach of contract...

Matter

Engineering Malpractice

We asserted claims on behalf of a large private institution related to defective design and installation of a geothermal heating and cooling system in a high profile public building. The matter was settled favorably...

Matter

Procurement

We have assisted many owners, and contractors in design and construction contracting including: Massachusetts Institute of Technology Investment Management Company on over a billion dollars in projects in Kendall Square area of Cambridge, Massachusetts...

News

Getting the Band Back Together: How a Surety Team Can Hit the Right Notes

Construction Exec published an article, "Getting the Band Back Together: How a Surety Team Can Hit the Right Notes," in its November edition, covering the effect COVID-19 has on surety bond producers. Attorney Rob...

News

ABA Forum on Construction Law’s COVID-19 Leadership Roundtable Webinar Series

On January 20, Engineering News-Record published an article, "Frank Giunta: Developed Free Webinars to Discuss Ramifications of COVID-19 on the Industry," discussing the ABA Forum on Construction Law’s COVID-19 Leadership Roundtable webinar series. Giunta...

Matter

Defense of Breach of Contract, Negligent Construction and Breach of Duty of Workmanship Claims

We successfully defended a large mechanical contractor in connection with lawsuit stemming from the comprehensive failure of the hydronic piping system in a resort hotel's heating and cooling system. Through fact and expert witness...

Matter

Representative Litigation Matters

Represented one of the nation's largest geotechnical subcontractors in claims against a major general contractor arising from construction of pier improvements at an East Coast naval facility Led defense trial team in a four-week...

Matter

Project Owner Breached Contract by Attempting to Terminate Contractor

Our client, large construction contractor, completed construction of a new entry at a public building. The scope of work included construction of new concrete sidewalks, stairs, accessibility ramp, canopy, lighting, railings and a non-load...

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