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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

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

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...

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...

Publication/Podcast

Is the Coronavirus Pandemic a Force Majeure?

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

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

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...

Event

COVID-19 and Maine Construction Contractors: A Roundtable Video Conference on Legal, Financial, and Tax Developments

Attorneys from Verrill's Construction Law and Employment & Labor Groups are teaming up with accounting professionals from Albin Randall & Bennett and the Associated General Contractors of Maine to offer insights into the evolving...

Publication/Podcast

Massachusetts COVID-19 Essential Services as they Relate to the Construction Industry

On March 23, 2020, Governor Baker issued “an emergency order requiring all businesses and organizations that do not provide ‘COVID-19 Essential Services’ to close their physical workplaces and facilities to workers, customers and the...

Matter

Surety Takeover of Mountain Top Communications Infrastructure Contract Following Owner’s Default of Contractor

We represented a performance bond surety asked to step in and complete four communications infrastructure projects. We engaged key consulted and mapped about a path forward for completion of the project with our client's...