Omega Demolition Corp. v. Walsh Construction Company, et al. (Lawyers Weekly No. 09-024-18)
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
- 2017-1736-BLS 2
OMEGA DEMOLITION CORP.,
Plaintiff
vs.
WALSH CONSTRUCTION COMPANY,
MCCOURT CONSTRUCTION COMPANY, INC., WALSH-MCCOURT JV1,
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA and
CONTINENTAL CASUALTY COMPANY,
Defendants
MEMORANDUM OF DECISION AND ORDER ON
DEFENDANTS’ PARTIAL MOTION TO DISMISS
This dispute arises out of a subcontract for bridge demolition between Plaintiff Omega Demolition Corp. (Omega) and Defendants Walsh Construction Company (Walsh) and Walsh-McCourt JV1, (WMJV), a joint venture between Walsh and Defendant McCourt Construction Company, Inc. (McCourt). Omega, the subcontractor, alleges, among other things, that Walsh and WMJV breached the subcontract by failing to furnish so-called “shielding and containment” for Omega’s use in performing its demolition work. Walsh, WMJV, McCourt and their sureties, Defendants Travelers Casualty and Surety Company of America and Continental Casualty Company, now move to dismiss those portions of Counts I through V which are based on this allegation, arguing that it is clear from the language of the subcontract that neither Walsh nor WMJV had any obligation to provide shielding and containment for Omega. This Court disagrees and concludes that the Motion must be DENIED.
BACKGROUND
The following is drawn from the allegations in the Complaint together with the exhibits attached to it and documents referenced therein. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000); Waterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993).
In March 2013, the Massachusetts Department of Transportation (MassDOT) awarded a general contract (the Primary Contract) to WMJV, a joint venture between Walsh and McCourt, for a project that involved the replacement of or improvements to nine bridges and associated sections of I-95 between Newburyport and Salisbury (the Project). Project responsibilities were divided between Walsh and McCourt, with Walsh responsible for the portion of the Project involving the reconstruction of the John Greenleaf Whittier Bridge which carries I-95 over the Merrimack River.
In December 2013, Walsh, as agent and on behalf of WMJV, entered into a Subcontract with Omega to perform work that included the demolition of the Whittier Bridge and lead abatement. The Subcontract consisted of a one page document to which several exhibits were attached, including Exhibit A (“Terms and Conditions”) and Exhibit B (“Scope, Clarification, Alternates and Unit Prices”). Article 1.2 of the Subcontract, under the heading “Mutual Obligations,” states that:
Subcontractor assumes toward Contractor all of the obligations, risks and responsibilities that the Contract by the Contract Documents has assumed to the Owner, and the Subcontractor is bound to the Contract by those obligations in the same manner as the Contractor is bound to the Owner.
The Subcontract also contains other references the Primary Contract. See e.g. Subcontract at pg. 1 (requiring Omega to “certify that it is fully familiar with the Contract Documents”); Exhibit A, Art. 1.1 (requiring Omega to perform work “in strict accordance and full compliance with the Contract Documents”).
Exhibit B of the Subcontract explicitly excluded from Omega’s responsibilities the obligation to provide “protective shielding or netting.” The Primary Contract, however, required that WMJV use “shielding and containment” in connection with bridge demolition.[1] Consequently, Omega assumed that Walsh would furnish the requisite shielding and that it (Omega) would be able to place its workers on the shielding to perform its abatement activities. Walsh did not and this action ensued.
DISCUSSION
Interpretation of a contract is a question of law for the Court. Cady v. Marcella, 49 Mass. App. Ct. 334, 337-338 (2000). Whether a contract is ambiguous is also a question of law. Eigerman v. Putnam Invest., 450 Mass. 281, 287 (2007). When the wording of a contract contains no ambiguity, the Court must enforce it according to its terms. Freelander v. G. & K. Realty Corp., 357 Mass. 512, 516 (1979). However, if the language of the contract is ambiguous, there is a question of fact that must be resolved by the fact finder. Trafton v. Custeau, 338 Mass. 305, 307-308 (1959). Contract language is ambiguous only where the “terms are inconsistent on their face or where the phraseology can support reasonable differences of opinion as to the meaning of words employed and the obligations undertaken.” Suffolk Constr. Co., Inc. v. Lanco Scaffolding Co., Inc., 47 Mass. App. Ct. 726, 729 (1999) (internal quotes omitted). Here, defendants contend that those portions of Counts I through V based on Walsh’s failure to furnish shielding and containment must dismissed because the terms of the Subcontract do not place that obligation on Walsh. This Court concludes that the Subcontract, when read together with the Primary Contract, is ambiguous on this point.
Defendants first argue that the Subcontract’s two integration clauses prevented Omega from relying on any provision of the Primary Contract that requires Walsh to provide shielding and containment in connection with bridge demolition. The first clause provided that:
By executing this Agreement, the Subcontractor certifies that it is fully familiar with all terms of the Contract Documents, the site conditions of the Project, and the climatic and physical conditions under which the Subcontractor’s Work is to be performed, and enters into this Agreement based upon its investigation of all such matters and is not relying on any opinions or representations of the Contractor.
Subcontract at pg. 1. The second integration clause provided that: “This Agreement . . . represents the entire integrated agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, either written or oral.” Id. at Exhibit A, Art. 13.5. It is not clear, however, that these clauses were intended to prevent Omega from relying on the terms and conditions in the Primary Contract. The Subcontract (including the first integration clause) repeatedly references so-called “Contract Documents,” a term defined to include the Primary Contract. See e.g. Articles 1.1 and 1.2 described above. These references create an ambiguity as to whether the Primary Contract was effectively incorporated as part of the Subcontract, at least with respect to this obligation to provide shielding.[2]
Defendants next contend that Articles 5.1 and 7.8 of Exhibit A to the Subcontract and the “Inclusions” Section of Exhibit B to the Subcontract show that Walsh had no obligation to furnish shielding and containment. They emphasize that Articles 5.1 and 7.8 of Exhibit A granted Walsh the unconditional right to deny Omega access to materials and equipment. See Subcontract at Exhibit A, Art. 5.1 (stating that Walsh controls access to all “Site Resources,” defined to include “work areas” and “other characteristics of the Project site and Project work”) and Art. 7.8 (forbidding Omega’s use of any equipment owned by Walsh without Walsh’s express written consent). They also point out that Exhibit B’s Inclusions Section specifically identified equipment that Walsh would furnish for Omega’s use in performance of the Subcontract, and that shielding and containment are not among those items. See Id. at Exhibit B, Inclusions, Line Item 2 (“2 each MI-Jack cranes for 25 days; 2 each deck barges for 60 days; 1 each hopper barge for 40 days; 1 each jack-up barge for 60 days; 1 each 150 ton crane on barge for 25 days; 1 each tugboat for 50 days. All other equipment, materials and labor provided by Subcontractor.”). The “Exclusions” Section of Exhibit B, however, makes it clear that Omega does not have the responsibility to provide “protective shielding and netting.” Particularly given the repeated references in the Subcontract to the Primary Contract, one reasonable interpretation of the Subcontract is that Walsh would supply the shielding and containment. At the very least, an ambiguity exists on this issue which cannot be decided at this early stage in the litigation.
__________________
Janet L. Sanders
Justice of the Superior Court
Dated: February 12, 2018
[1] Defendants do not agree but for purposes of the instant motion, concede that this to be the case.
[2] Defendants heavily rely on Flatiron-Lane v. Case Atl. Co., 121 F. Supp. 3d 515 (M.D.N.C. 2015) in support of their position. But that case was decided after a bench trial and required detailed factual findings to resolve an underlying ambiguity in the relevant contract documents.