THE WELCH COMPANY
440 Davis Court #1602
San Francisco, CA 94111-2496
415 781 5700
S U M M A R Y
DIARY: April 1, 1998 01:49 PM Wednesday;
Received call from Dario re arbitration procedures.
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0201 - Thelen, Marrin, Johnson & Bridges 415 392 6320
020101 - Mr. Dario De Benedictis, Esq.
Following the Contract
Conditions Precedent, GC 10.8
0504 - ..
0505 - Summary/Objective
050601 - Follow up ref SDS 3 3136, ref SDS 1 7224.
050603 - Dario suggested I talk to Peter Anderson. Peter indicated strong
050604 - preference should be given to hearing claims. Mitigation might be an
050605 - area for applying a remedy for failure to perform claim procedures.
0509 - Discussion
051001 - Dario apologized for not returning my call sooner. He has been out of
051002 - the office in recent weeks with medical and other family matters.
051004 - Dario asked about the arbitration issue I called on?
051006 - I did not mention the first matter...
051008 - 1. What is a reasonable action to take where a party in an
051009 - arbitration does not follow an Arbitrator's instruction to
051010 - disclose its claims to the other party?
051012 - I did not mention the case at issue, but did ask about this...
051014 - 2. What is industry standard on AIA conditions precedent to filing
051015 - a demand for arbitration that the claim first be determined by
051016 - the architect or engineer (per analysis of article 10.8 in
051017 - contract between owner and GC, on 980221, ref SDS 2 2511)
051019 - Dario said he has not encountered this issue in arbitrations he has
051020 - done. He suggested I talked to Peter Anderson. Dario said Peter is
051021 - the arbitration expert at TMJB.
051023 - I thanked Dario for taking time to call me, and wished him well.
0513 - 1408 called Peter at TMJB
051401 - Left message asking him to call.
0517 - 1508 Peter called back
051801 - I thanked him for calling and explained my question about conditions
051802 - precedent for filing arbitration.
051804 - Peter seemed to indicate this has not come up in cases he has handled.
051805 - He seemed to indicate there should be a strong willingness for AAA to
051806 - hear the merits of a case, rather than decide not to hear it because a
051807 - party failed to perform the contract requirement to submit claims to
051808 - the design professional.
051810 - We considered the analogous situation under Caltrans contracts.
051812 - Peter feels the long tradition that contractors file claims for
051813 - determination by the Chief Engineer justifies following that provision
051814 - in Caltrans contracts, but may not apply to other contracts.
051816 - There was discussion that a benefit of having a designated design
051817 - professional initially determine claims is that it requires the
051818 - parties to assemble evidence needed to make a reasoned determination,
051819 - and thereby affords the parties with the greatest knowledge of events
051820 - and also the best opportunity to make corrections, to focus their
051821 - attention at a time when damages can be mitigated.
051823 - In our case we are finding, as in many cases where this condition
051824 - precedent is not performed, the parties have lost evidence and have
051825 - largely forgotten a lot of material of facts.
051827 - It seems appropriate that a contract provision should not simply be
051828 - ignored, because otherwise the question arises about why other
051829 - provisions should not also be ignored and in that case neither party
051830 - has any grounds for recovery because they never agreed to anything.
051832 - Peter said he is unsure about what should be done to encourage better
051833 - performance.
Distribution. . . . See "CONTACTS"