By: Thomas S. Tripodianos Published: October 2013

Suing for Negligence Despite Dispute Process in Contract

Question. Can the owner sue for negligent construction when there is a contract in place which covers the subject matter of the dispute?

Answer. No.

The Condominium Developer sued the Contractor in connection with an agreement to provide construction work, labor, and services at a condominium building the Condominium Developer was constructing. Condominium Developer alleges among other things negligent construction. This is a common ploy used by some in Condominium Developer’s position is to allege negligence so as to trigger the Contractor’s insurance coverage which would be otherwise unavailable in a breach of contract action.

The gravamen of the negligence cause of action is that the work performed under the contract was performed in a less than skillful and workmanlike manner. Such a cause of action sounds in breach of contract, not negligence. The Condominium Developer' allegations of negligence are merely a restatement, albeit in slightly different language, of the contractual obligations asserted in the causes of action for breach of contract.

The negligence cause of action should be dismissed.

 

 

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