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Green Building Contracts: Considering the Roles of Consequential Damages & Limitation of Liability Provisions (Abstract)

I am pleased to announce that an article I co-authored with Professor Darren Prum of Regis University has been published as the lead feature article in Volume 23, Issue 2 of the Loyola Consumer Law Review. The pinpoint citation is 23 Loy. Consumer L. Rev. 113 (2010).

Green Building Contracts: Considering the Roles of Consequential Damages & Limitation of Liability Provisions begins by tracing the development of the legal concept of consequential damages at common law through modern decisions applying those concepts to construction disputes. It proceeds to analyze the competing concerns of construction project participants when negotiating consequential damages and limitation of liability provisions, underscoring those that are particularly salient for green building projects. The article then considers those concerns in the context of pertinent provisions in various AIA, EJCDC, ConsensusDOCS, and Design-Build Institute of America form documents. It concludes by providing a set of recommendations for owners, design professionals, contractors, and consultants to consider when negotiating similar provisions, most of which are relevant for any type of construction project whether green or not.

A copy of the article is available for download here; Professor Prum and I look forward to any feedback in the comments below.

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One Response to Green Building Contracts: Considering the Roles of Consequential Damages & Limitation of Liability Provisions (Abstract)

  1. Chris Dixon February 18, 2011 at 6:40 pm #

    Stephen,

    Very interesting article. I observe that it does not include anything about the newest AIA documents – Integrated Project Delivery (A195, B195 and C195). Are there major differences between this series of documents and the standard AIA documents covered in the article?

    Also, I am curious about the potential that none of the parties could be held liable for failure to achieve a LEED certification given that the process for certification can be extremely inconsistent project to project (reviewers often “rewrite” rating system requirements as they go and do not apply consistent rulings from project to project) and that the certification requirements themselves are not very well thought out (example: low-emitting materials requirements that stipulate particular classifications of products be a certain grams per liter – without considering how MUCH of a particular product is applied; 4 coats of 100 g/l paint applied gets the same LEED point as a single coat of 100 g/l paint, but 4 coats of paint loads the space with 4 times the VOCs). Couldn’t (and wouldn’t) it be successfully argued that the rating system itself is so screwed up that there is really no definitive way for any single entity to be liable for not meeting its “requirements?”

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