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