Susan Elliott, an associate in the firm’s Washington, DC Office and Alan Winkler, a partner in the firm’s New Jersey office, co-authored an article in the AGC of America Newsletter, Volume 2, Issue 6, December 2016, titled “Warning – A Mutual Waiver of Consequential Damages Could Be One-Sided”.  The article discusses how many contracts have clauses described as a mutual waiver of consequential damages.  Contractors may believe this is fair, puts them on an equal footing with the owner and protects them from having to be responsible for the owner’s consequential damages.  However, this may be a fallacy because owners will claim a broad exception.  Many of those same contracts have liquidated damages clauses where the liquidated damages are based on a projection of consequential damages.  Owners will take the position that liquidated damages are recoverable notwithstanding the mutual waiver clause.

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