LD Clause Precludes Separate Recovery of Lost Profits
The accepted wisdom is that a liquidated damage clause in a construction agreement is the exclusive remedy for time-related damages. Here's a new case that seems to follow the accepted wisdom and perhaps go a bit beyond, holding the LD clause to preclude any type of additional "actual damages."
Given the preclusive effect of LD clauses, sometimes an effort is made to carve out exceptions or to make the clause alternative at the option of the owner -- that is, to permit the owner to collect either the LD amount or actual damages, whichever is greater. But the "optional" may not be enforceable if this case were to be adopted in Washington.
