In other cases, courts have looked to the sophistication of the parties, whether the parties negotiated at arm's length, or whether attorneys were present during the negotiation or prepared the contract clause. Michael S. Zetlin, et al., supra, at 9 . The issue that arises in the context of design-build projects is whether parties to a public works project will be able to negotiate such a clause. An Effective Limitation of Liability Clause. A limitation of liability clause is worthless if it is unenforceable.
Some states have statutes to look to when determining whether such a clause is enforceable.
In states that do not provide statutory authority, courts have looked to anti-indemnity statutes or have relied upon public policy or general principles of contract construction. G. Standard Form Contracts. Several organizations have developed standard form design-build contracts. A design-builder should take into consideration when using any of these form contracts, that each organization has drafted the document from its own perspective and with the best interests of its membership in mind. Accordingly, any form contract language should be carefully reviewed to make sure it will satisfy each party's needs.