Claims not barred. In the absence of a written contract modification, nothing in this clause shall be deemed to restrict the CONTRACTOR'S right to pursue a claim under this Contract or for a breach of contract.
Claims not barred. In the absence of such a change order, nothing in this clause shall restrict the Contractor's right to pursue a claim arising under the Agreement, if pursued in accordance with the clause entitled Claims Based Upon GPD’s Actions or Omissions or for breach of contract.
Claims not barred. In the absence of a contract modification, nothing in this clause shall be deemed to restrict the Manager right to pursue a claim under the contract or for a breach of contract.
Claims not barred. Finally, a number of cases have held that the economic loss rule does not bar claims by contractors against design professionals.13 The rationale of these cases focuses on the interdependence of the various parties on a construction project and the design professional’s control over the project. As the Florida Supreme Court put it, “Altogether too much control over the contractor neces- sarily rests in the hands of the supervis- ing architect for him not to be placed under a duty imposed by law to perform without negligence his functions as they affect the contractor.”14 These cases also point to Section 552 of the RESTATEMENT (SECOND) OF TORTS, which says: One who, in the course of his business, profession or employ- FEBR U A R Y 2 00 3 ARIZ ONA AT T ORNE Y 25 ment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.15 Significantly, the Xxxxxxxx court quoted Section 552 with approval, implying that— at least at that time—claims for economic losses were not barred in Arizona. The Future is Unclear If there is an emerging consensus, it seems to be that damages for purely economic loss cannot be recovered by contractors against design professionals in the absence of privity or a privity-like relationship. Still, in Arizona, the lack of privity does not appear to be an obstacle so long as Xxxxxxxx remains good law. Xxx Xxxxxxxx is as alive as ever. Last year, for example, Arizona courts expand- xx Xxxxxxxx into the legal services context by holding that a lack of privity did not prevent a non-client from suing a lawyer.16 In fact, the Arizona Supreme Court wrote, “If design professionals cannot escape lia- bility to foreseeably injured third parties who, although lacking privity, are harmed by a designer’s negligence, we cannot see why lawyers should not likewise be held to a similar standard.”17 Thus, at least for now, the economic loss rule appears unlikely to significantly limit claims by contractors against design professionals for economic injuries.
