Summary: Owners and designers typically address the mutual waiver of consequential damages (“MWCD”) at the 50,000 ft. level. The owner believes the designer should bear the full risk of design caused consequential damages while the designer believes the fee does not underwrite that risk. In effect, MWCD negotiation seems resolved, in practice, based on bargaining power and leverage, rather than project specific considerations. What if the parties approached from a different perspective, focusing on their respective concerns in the context of the specific project, based on a forecast of the kinds of design errors and omissions that may result, in loss of use and other consequential damages?
