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Did I give away my rights?

TexasLien Waivers

I am a subcontractor in Texas who has recently gone through arbitration. The Arbitrator found that we would have been entitled to escalation, however we signed those rights away by not doing a carve-out for a potential, unknown dispute as we did in our final unconditional waiver (when the dispute was known AND we wanted our retention before arbitration). Below is what he stated in reference to the monthly, Texas standard, releases. Obviously, I think he is nuts, have you ever seen case law like this or case law that is against his finding? Any feedback would be appreciated. ****************************** By way of counterargument,XX Contractor XX raises the affirmative defense of waiver based on the thirty plus payment waivers submitted monthly by XX Subcontrator XX to secure monthly payment draws. In reviewing the documents and hearing exhibits submitted, I note that only on the final payment application waiver did XX Subcontrator XX make any effort to reserve its rights to the previously submitted PCO 93. The inclusion of this reservation indicates that XX Subcontrator XX was aware of the necessity to include such waivers should it desire to preserve any type of pending claim as contemplated in the progress payment waiver language. XX Subcontrator XX’s failure to include such reservations on the prior pay application progressively waived any possible entitlement to the extent any such entitlement was available for the limited class of impacts (delays caused by other trades, contractor, Owner, acts of God or Vandalism) for which XX Subcontrator XX had conditioned its right to seek costs by contract modification. Therefore, Titus waived its right to recover costs and I find XX Subcontrator XX has no entitlement based on this series of waivers without reservation of rights.

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Jun 22, 2023
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