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

In April 2012 our client, a general contractor, and the project owner signed an American Institute of Architect A101-2007 contract with accompanying A201-2007 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.