Based on a court’s dismissal of a town’s negligence claim against the prime contractor for failure of a vendor/supplier’s equipment to perform successfully, the contractor was granted summary judgment against a claim by AECOM, the project engineer, that was seeking contribution pursuant to a state statute, toward the town’s damages. The statute in question, like so many similar statutes around the country, specifically references contribution for “damages in tort” such as negligence. Penta Corp. v. Town of Newport v. AECOM v. WesTech (New Hampshire Super., 2018)

Contribution based on statutes such as this are not available in contract cases. In this matter, both AECOM and the construction contractor had different contracts with the town. Each party may defend itself against the town’s complaint on the ground that it did not breach its contract but that damages resulted from the breach by a different party of that party’s contract. As stated by the court, “Each party’s exposure is limited by the contract it made.”


About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of Report and may be reached at or by calling 703-623-1932.  This article is published in Report, Vol. 20, No. 9 (Oct 2018).

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