Flow Down Provisions and Delay Damages

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In CC-Aventura, Inc. v. Weitz Co., LLC, 2009 WL 230155 (S.D. Fla. 2009), the Court analyzed the effect of the prime contract on subcontract terms.  The prime contractor sought consequential damages from the subcontractor.  The subcontractor argued that the prime contract was incorporated by reference, and that a provision in the prime contract precluded the owner from seeking non-delay damages.  The Court held that the subcontract specifically defined the types of damages that contractor could seek against its sub, and as such, the subcontract provision controlled.  However, the Court noted that another provision in the subcontract stated that the prime could seek damages from the sub to the same extent that the owner could seek damages from the prime.  Accordingly, the Court could not determine the types of damages recoverable until it was determined the scope of damages the owner could seek from the prime.


Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278



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