Posts tagged "Construction"

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.  […]

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Posted by Massachusetts Legal Resources - March 9, 2018 at 5:25 pm

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Suffolk Construction Company, Inc. v. Benchmark Mechanical Systems, Inc., et al. (Lawyers Weekly No. 12-045-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1384CV01463-BLS2 ____________________ SUFFOLK CONSTRUCTION COMPANY, INC. v. BENCHMARK MECHANICAL SYSTEMS, INC. and READING CO-OPERATIVE BANK ____________________ MEMORANDUM AND ORDER ALLOWING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This case arises from Suffolk Construction Company’s mistaken payment of monies to Benchmark Mechanical Systems rather than to Benchmark’s lender, Reading Co-Operative Bank. Suffolk had hired Benchmark as a subcontractor on a large construction project. Benchmark secured a line of credit by assigning to the Bank all money that Benchmark stood to collect from Suffolk under its subcontract. Suffolk mistakenly made payments totaling $ 3,822,500.49 to Benchmark instead of to the Bank. Benchmark held and spent those monies, rather than forward them to the Bank. After Benchmark went out of business, the Bank sued Suffolk. The Supreme Judicial Court ordered Suffolk to pay the Bank the full amount it should have paid under Benchmark’s assignment. See Reading Co-Operative Bank v. Suffolk Constr. Co., 464 Mass. 543, 557 (2013). With statutory interest included, Suffolk paid the Bank a judgment totaling $ 7,640,907.45. Suffolk brought this action seeking to recover the surplus held by the Bank that was left after the Bank deducted its reasonable costs of collection and the principal and interest owed by Benchmark from the amount paid by Suffolk. In addition, Suffolk asserted common law claims against Benchmark seeking to recover the $ 3,822,500.49 in subcontract payments that Suffolk was compelled to pay a second time to the Bank. The Supreme Judicial Court recently held that Suffolk had stated viable claims against the Bank, but that its claims against Benchmark are barred by the applicable statute of limitations. See Suffolk Constr. Co. v. Benchmark Mechanical Systems, Inc., 475 Mass. 150 (2016). Suffolk now moves for summary judgment as to its right to collect the surplus of roughly $ 1.35 million being held by the Bank. The Court will ALLOW this motion. – 2 – This resolves all remaining claims. Suffolk and the Bank report that they have settled Suffolk’s claim that the Bank’s costs of collection were unreasonable, and that this settlement will take effect if the Court were to rule (as it does) that Suffolk is entitled to receive the full surplus amount that the Bank owes to Benchmark. The SJC has held that under the circumstances of this case Suffolk is entitled to equitable subrogation as against Benchmark, meaning that it may “stand in Benchmark’s shoes as to the surplus” held by the Bank. Suffolk Constr., 475 Mass. at 156. This holding is the law of the case, is binding on all parties, and may not be reconsidered now that the case has been remanded to the Superior Court. See City Coal Co. of Springfield, […]

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Posted by Massachusetts Legal Resources - April 26, 2017 at 7:04 pm

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Turner Construction Company v. MJ Flaherty Company (Lawyers Weekly No. 12-028-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 13-2308 TURNER CONSTRUCTION COMPANY vs. MJ FLAHERTY COMPANY MEMORANDUM OF DECISION AND ORDER ON PLAINTFF’S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF’S MOTION TO STRIKE THE EXPERT REPORT OF JACK GRANT INTRODUCTION This case arises out of a subcontract between the plaintiff, Turner Construction Company (Turner), and the defendant MJ Flaherty Company (Flaherty). Turner was the general contractor on the construction of a 23 story commercial building at 157 Berkeley Street and certain related remodeling of an adjacent building for Liberty Mutual Insurance Company (the Project). Flaherty entered into a subcontract with Turner to perform the HVAC work on the Project (the Subcontract). The initial value of the Subcontract was $ 12,462,252. Turner brought this action against Flaherty to recover damages that it alleges that it suffered when Flaherty failed to complete its work on the Project and Turner had to hire another subcontractor to complete the HVAC work.1 Flaherty has asserted counterclaims against Turner. Some of these claims are based on Turner’s failure to pay Flaherty for all of the work that it performed. Here, the amount in dispute 1 Turner’s complaint also includes allegations concerning subcontracts that Turner entered into with Flaherty on two other projects, a new building at University of Massachusetts at Lowell and a Liberty Mutual Conference Center. Turner alleges that Flaherty also failed to complete these projects causing it damage; however, the focus of this litigation appears to be the 157 Berkeley Project. It seems that Flaherty is no longer in business. 2 is complicated by the fact that in early 2013 several sub-subcontractors and material suppliers to Flaherty were not being paid and began to file notices of contract in anticipation of asserting mechanics’ liens on the Project. In response, Turner entered into a series of agreements with Flaherty pursuant to which it issued checks to Flaherty for subcontracted work that were made jointly payable to Flaherty and the vendors to insure that they were being paid out of the sums Turner was disbursing to Flaherty. Flaherty, however, also has alleged that as a result of the manner in which Turner ran the Project, Flaherty was so adversely affected that the value of Flaherty as a going concern was adversely impacted and this resulted in a $ 6.4 million reduction in Flaherty’s “new worth.” This is, of course, a paradigm claim for consequential damages. This claim is the subject of the motion now before the court. It would be an extraordinary understatement to say that this case has a tortured procedural history. Turner has filed two previous motions for summary judgment that the court was unable to decide on their merits because they […]

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Posted by Massachusetts Legal Resources - April 4, 2017 at 9:08 pm

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Turner Construction Company v. MJ Flaherty Company (Lawyers Weekly No. 12-028-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 13-2308 TURNER CONSTRUCTION COMPANY vs. MJ FLAHERTY COMPANY MEMORANDUM OF DECISION AND ORDER ON PLAINTFF’S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF’S MOTION TO STRIKE THE EXPERT REPORT OF JACK GRANT INTRODUCTION This case arises out of a subcontract between the plaintiff, Turner Construction Company (Turner), and the defendant MJ Flaherty Company (Flaherty). Turner was the general contractor on the construction of a 23 story commercial building at 157 Berkeley Street and certain related remodeling of an adjacent building for Liberty Mutual Insurance Company (the Project). Flaherty entered into a subcontract with Turner to perform the HVAC work on the Project (the Subcontract). The initial value of the Subcontract was $ 12,462,252. Turner brought this action against Flaherty to recover damages that it alleges that it suffered when Flaherty failed to complete its work on the Project and Turner had to hire another subcontractor to complete the HVAC work.1 Flaherty has asserted counterclaims against Turner. Some of these claims are based on Turner’s failure to pay Flaherty for all of the work that it performed. Here, the amount in dispute 1 Turner’s complaint also includes allegations concerning subcontracts that Turner entered into with Flaherty on two other projects, a new building at University of Massachusetts at Lowell and a Liberty Mutual Conference Center. Turner alleges that Flaherty also failed to complete these projects causing it damage; however, the focus of this litigation appears to be the 157 Berkeley Project. It seems that Flaherty is no longer in business. 2 is complicated by the fact that in early 2013 several sub-subcontractors and material suppliers to Flaherty were not being paid and began to file notices of contract in anticipation of asserting mechanics’ liens on the Project. In response, Turner entered into a series of agreements with Flaherty pursuant to which it issued checks to Flaherty for subcontracted work that were made jointly payable to Flaherty and the vendors to insure that they were being paid out of the sums Turner was disbursing to Flaherty. Flaherty, however, also has alleged that as a result of the manner in which Turner ran the Project, Flaherty was so adversely affected that the value of Flaherty as a going concern was adversely impacted and this resulted in a $ 6.4 million reduction in Flaherty’s “new worth.” This is, of course, a paradigm claim for consequential damages. This claim is the subject of the motion now before the court. It would be an extraordinary understatement to say that this case has a tortured procedural history. Turner has filed two previous motions for summary judgment that the court was unable to decide on their merits because they […]

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Posted by Massachusetts Legal Resources - April 4, 2017 at 5:33 pm

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Central Ceilings, Inc. v. Suffolk Construction Company, Inc., et al. (Lawyers Weekly No. 11-036-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-1117                                       Appeals Court   CENTRAL CEILINGS, INC.  vs.  SUFFOLK CONSTRUCTION COMPANY, INC. & others.[1]     No. 15-P-1117.   Suffolk.     October 7, 2016. – March 29, 2017.   Present:  Agnes, Maldonado, & Desmond, JJ.     Contract, Construction contract, Subcontractor, Damages.  Damages, Breach of contract, Attorney’s fees.  Practice, Civil, Attorney’s fees, Discovery.     Civil action commenced in the Superior Court Department on October 3, 2006.   The case was heard by S. Jane Haggerty, J.; an award of attorney’s fees was entered by her; and a motion for reconsideration was considered by Judith Fabricant, J.     Joel Lewin (John P. Connelly also present) for the defendants. Paul R. Mordarski (Thomas J. Fullam also present) for the plaintiff.     DESMOND, J.  After a jury-waived trial, a Superior Court judge entered judgment awarding the plaintiff, Central Ceilings, Inc. (Central), $ 321,315 on its breach of contract claim for damages for loss of productivity incurred while acting as a subcontractor for defendant Suffolk Construction Company, Inc. (Suffolk), on a large construction project.  This case is before us on cross appeals. Suffolk challenges the judgment,[2] claiming, inter alia, that Central’s claim was barred by the “no-damages-for-delay” clause in the subcontract between the parties, and that the judge erred in ruling that Central had established its claim for damages by the “total cost” method.  Suffolk further challenges the judge’s award of $ 471,682 in attorney’s fees to Central, claiming that it was wrongfully denied discovery and a hearing prior to the entry of that award. On its cross appeal, Central challenges the judge’s holding that the “pay-if-paid” clause in the subcontract barred it from recovering $ 82,538 from Suffolk for unpaid change order requests (CORs).  For the reasons set forth herein, the judgment on the merits entered on December 20, 2013, and the amended judgment for attorney’s fees entered on September 9, 2014, are affirmed. Background.  First, we set forth the basic material facts, drawing extensively from the trial judge’s thoughtful and thorough findings of fact, rulings of law, and decision.  The Massachusetts State College Building Authority (MSCBA) hired Suffolk to serve as general contractor on the construction of three interconnected dormitories at what is now known as Westfield State University (the project).  As the dormitories were to be ready for occupancy by students arriving for the fall semester in 2005, the contract […]

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Posted by Massachusetts Legal Resources - March 29, 2017 at 6:26 pm

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Cumberland Farms, Inc. v. Tenacity Construction, Inc. (Lawyers Weekly No. 12-161-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT CIV. NO. 15-1589 BLS 2 CUMBERLAND FARMS, INC., Plaintiff vs. TENACITY CONSTRUCTION, INC. Defendant MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT This case arises from a project for the construction of facilities located in Rhode Island and Massachusetts. The plaintiff Cumberland Farms, Inc. (CFI) is the owner of the properties on which the facilities were built. The defendant Tenacity Construction, Inc. (Tenacity) was the general contractor. CFI instituted this action to recover the difference between what it believes that it was obligated to pay Tenacity for its work and what it ended up paying, taking into account those amounts that CFI paid to Tenacity’s subcontractors on Tenacity’s behalf. Tenacity counterclaimed, maintaining that CFI wrongfully failed to pay Tenacity for costs attributable to winter conditions and that, to the extent it could not pay its subcontractors, this was due to CFI’s breach of contract. CFI now moves for summary judgment as to Tenacity’s counterclaims against it. Tenacity has cross moved as to the same claims, asking this Court to enter judgment in its favor. This Court concludes that CFI’s Motion must be Allowed and that Tenacity’s Motion must be Denied. BACKGROUND The following facts in the summary judgment record are undisputed.1 CFI owns properties 1 As CFI points out in its Reply Memorandum, Tenacity’s response to several of CFI’s fact allegations contain improper argument or unsupported denials. This does not comply with Rule 9(A)(b)(5). This approach is also not effective advocacy, since it obscures rather than illuminates the summary judgment record without advancing Tenacity’s position on the issues in any respect. 2 located at 15 Main Street in Northborough, Massachusetts (the Northborough Property) and at 2643 Hartford Avenue in Johnston, Rhode Island (the Johnston Property). CFI retained Tenacity as general contractor for the construction of a gas station/convenience store on the Northborough Property (the Northborough Project) and construction of a similar facility together with office space on the Johnston Property (the Johnston Project). On September 23, 2013, the parties entered into two construction contracts (the Master Contract) that governed Tenacity’s work. Ex. 8 of Joint Appendix. Under the Master Contract, Tenacity was responsible for paying the subcontractors on both Projects. The Master Contract expressly incorporated two Work Orders, one for each Project. The Northborough Project Work Order provided that work was to start at the Northborough Property on October 7, 2013 and be completed within 112 days (January 27, 2014). The Johnston Project Work Order stated that work was to begin November 4, 2013, and was to be completed within 140 days (March 24, 2013). Both projects were substantially delayed: the Johnston Project was completed May 6, 2014 […]

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Posted by Massachusetts Legal Resources - December 7, 2016 at 1:39 am

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ZVI Construction Company, LLC v. Levy, et al. (Lawyers Weekly No. 11-141-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-359                                        Appeals Court   ZVI CONSTRUCTION COMPANY, LLC  vs.  FRANKLIN LEVY & another.[1]     No. 15-P-359.   Suffolk.     January 12, 2016. – October 6, 2016.   Present:  Kafker, C.J., Cohen, & Blake, JJ.     Notice, Timeliness.  Conversion.  Evidence, Privileged communication.  Privileged Communication.  Waiver.  Attorney at Law, Attorney-client relationship.  Practice, Civil, Notice of appeal, Appeal, Complaint, Waiver.  Fraud.       Civil action commenced in the Superior Court Department on January 28, 2013.   A motion to dismiss, a motion to strike, and a motion to compel discovery were heard by Christine M. Roach, J.; the remaining issues were heard by Janet L. Sanders, J., on motions for summary judgment; and entry of separate and final judgment was ordered by Kenneth W. Salinger, J.     Richard E. Briansky for the plaintiff. Christopher R. O’Hara (Ian J. Pinta with him) for the defendants.     COHEN, J.  The plaintiff, ZVI Construction Company, LLC (ZVI), brought suit against the defendants, Attorney Franklin Levy and the law firm of Lawson & Weitzen, LLP (L & W), claiming that they had engaged in misrepresentation and other wrongdoing in connection with a mediated settlement between ZVI and the defendants’ clients:  The Upper Crust, LLC, and its affiliated entities (collectively, The Upper Crust), and two of its principals, Brendan Higgins and Joshua Huggard.  As a result of orders entered by two different Superior Court judges, all of ZVI’s claims against the defendants were dismissed, and ZVI filed a notice of appeal.  Despite the fact that ZVI’s notice of appeal was filed before the entry of a separate and final judgment and, hence, was premature, we exercise our discretion to decide this matter.  After consideration of the arguments presented, we affirm. Background.[2]  Except where indicated, the following facts are not in dispute.  Brendan Higgins, Joshua Huggard, and Jordan Tobins were members and managers of numerous limited liability companies operating a small chain of pizzerias known as The Upper Crust.  On April 5, 2012, Higgins, Huggard, and The Upper Crust, all of whom were represented by Levy and his firm, L & W, filed a civil lawsuit against Tobins.  In or around July, 2012, a settlement was reached in that action and documented in a memorandum of understanding (Tobins MOU).  The Tobins MOU provided, inter alia, as follows: “Tobins will pay or cause to be paid, by cash, bank check or […]

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Posted by Massachusetts Legal Resources - October 6, 2016 at 7:10 pm

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Suffolk Construction Company, Inc. v. Benchmark Mechanical Systems, Inc., et al. (Lawyers Weekly No. 10-125-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12020   SUFFOLK CONSTRUCTION COMPANY, INC.  vs.  BENCHMARK MECHANICAL SYSTEMS, INC., & another.[1]       Suffolk.     May 2, 2016. – August 12, 2016.   Present:  Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines, JJ.[2]       Uniform Commercial Code, Secured creditor.  Practice, Civil, Motion to dismiss, Summary judgment, Statute of limitations.  Subrogation.  Indemnity.  Unjust Enrichment.  Restitution.  Limitations, Statute of.       Civil action commenced in the Superior Court Department on April 22, 2013.   A motion to dismiss was heard by Christine M. Roach, J.; a motion for judgment on the pleadings was heard by her; cross motions for summary judgment were heard by Janet L. Sanders, J.; and entry of separate and final judgment was ordered by Sanders, J.   The Supreme Judicial Court granted an application for direct appellate review.     Robert Popeo (Paul J. Ricotta with him) for the plaintiff. Mark W. Corner (Peter H. Sutton with him) for Benchmark Mechanical Systems, Inc. Eric P. Magnuson (Nelson G. Apjohn with him) for Reading Co-Operative Bank.     SPINA, J.  In Reading Co-Operative Bank v. Suffolk Constr. Co., 464 Mass. 543, 551 (2013) (Suffolk I), we held that “G. L. c. 106, §§  9-405, 9-607, and 9-608, provide a comprehensive scheme” that allowed Reading Co-Operative Bank (bank) to require Suffolk Construction Company, Inc. (Suffolk), to fully perform its obligations under a collateral assignment of payments under a subcontract between Suffolk and Benchmark Mechanical Systems, Inc. (Benchmark), to secure a debt owed by Benchmark to the bank even if the value of the collateral exceeded the amount owed to the bank.  After that decision, Suffolk commenced this action to recover the surplus that resulted after the bank applied that collateral to satisfy Benchmark’s debt, plus costs of collection, pursuant to G. L. c. 106, §  9-608.[3]  Suffolk’s equitable claims for implied subrogation and implied indemnification were dismissed under Mass. R. Civ. P. 12 (b) (6) and 12 (c), 365 Mass. 754 (1974).  Its common-law claims were dismissed as time-barred under Mass. R. Civ. P. 56, 365 Mass. 824 (1974).  Suffolk appealed, and we granted its application for direct appellate review.  We now hold that Suffolk’s common-law claims are time barred, but it has stated equitable claims to prevent unjust enrichment and a windfall for which relief can be granted. Background.  The following facts, taken mostly from Suffolk I, are undisputed.  Benchmark assigned […]

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Posted by Massachusetts Legal Resources - August 13, 2016 at 2:08 am

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N-Tek Construction Services, Inc. v. Hartford Fire Insurance Company (Lawyers Weekly No. 11-028-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-1483                                       Appeals Court   N-TEK CONSTRUCTION SERVICES, INC.  vs.  HARTFORD FIRE INSURANCE COMPANY. No. 14-P-1483. Essex.     November 5, 2015. – March 14, 2016. Present:  Agnes, Sullivan, & Blake, JJ.     Public Works, Payment bond.  Surety.  Notice.  Bond, Public works, Construction contract bond.  Contract, Public works, Construction contract, Bond, Surety.       Civil action commenced in the Superior Court Department on November 18, 2010.   After transfer within the Superior Court Department, the case was heard by Timothy Q. Feeley, J.     Edward J. Quinlan for the plaintiff. John W. DiNicola, II, for the defendant.     AGNES, J.  In this case we address the notice provision contained in G. L. c. 149, § 29, as amended by St. 1972, c. 774, § 5 (§ 29),[1] in the context of a $ 23.29 million publicly funded project to repair a bridge in Gloucester (project).  In particular, we decide whether the electronic mail message (e-mail) notice given by the claimant, N-Tek Construction Services, Inc. (N-Tek), to the general contractor, SPS New England, Inc. (SPS), satisfied § 29.  N-Tek contends that the Superior Court judge, who tried this case without a jury, erred in concluding that the e-mail sent to SPS by N-Tek’s principal failed to satisfy the requirements of § 29.  For the reasons that follow, we affirm. SPS, the general contractor, posted a payment bond from a surety, Hartford Fire Insurance Company (Hartford).  N-Tek filed the underlying action, seeking recovery against SPS’s bond pursuant to G. L. c. 149, § 29, based on its claim that it had not been fully paid for its work furnished to a subcontractor, Seaway Coatings, Inc. (Seaway).  N-Tek sought to reach and apply the payment bond funds to satisfy outstanding invoices.  Hartford denied liability.  After a bench trial, the judge found that N-Tek did not provide sufficient written notice of its bond claim to SPS as required by § 29, and ordered judgment to enter for Hartford.  On appeal, N-Tek argues that the judge misinterpreted § 29 by imposing an added requirement that the notice “include and communicate an intent to assert a claim against the [g]eneral [c]ontractor’s” bond, based on Federal cases construing the Miller Act, 40 U.S.C. §§ 3131-3134 (2002), the Federal analogue to § 29.[2] Facts.  We summarize the facts found by the judge, supplemented by undisputed parts of the record. 1.  Project.  On August 14, 2008, the Massachusetts Highway Department (department)[3] […]

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Posted by Massachusetts Legal Resources - March 14, 2016 at 10:16 pm

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DiCarlo v. Suffolk Construction Co., Inc., et al. (Lawyers Weekly No. 10-019-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11854 SJC-11853   ROBERT M. DiCARLO  vs.  SUFFOLK CONSTRUCTION CO., INC., & others;[1] PROFESSIONAL ELECTRICAL CONTRACTORS OF CONNECTICUT, INC., third-party defendant. BERNARD J. MARTIN & another[2]  vs.  ANGELINI PLASTERING, INC., & others.[3]     Suffolk.  Middlesex.     October 8, 2015. – February 12, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.     Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer.  Lien.  Statute, Construction.       Civil action commenced in the Superior Court Department on March 29, 2007.   A petition for settlement was heard by Frances A. McIntyre, J.   A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J.  After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.   Civil action commenced in the Superior Court Department on September 15, 2011.   A petition for settlement was heard by Dennis J. Curran, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.   Wystan M. Ackerman for Twin City Fire Insurance Company & another. Charlotte E. Glinka for Bernard Martin & another. Thomas R. Murphy for Robert M. DiCarlo. Paul M. Kessimian & David J. Pellegrino, for American Insurance Association, amicus curiae, submitted a brief. Annette Gonthier Kiely, Michael C. Najjar, & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.     LENK, J.  Under Massachusetts law, employees who receive workers’ compensation benefits may not sue their employers for claims arising from work-related injuries.  See G. L. c. 152, § 24.[4]  Employees may, however, file claims against third parties for damagesarising from those injuries.  See G. L. c. 152, §§ 15, 24.  When an employee recovers damages from a third party, the workers’ compensation insurer is statutorily entitled to a lien on the recovery in the amount that the insurer paid to the employee in benefits.  See G. L. c. 152, § 15.  In these two cases, we are asked to ascertain the extent of this lien and, in particular, to clarify whether the lien attaches to damages paid by a third party for an employee’s pain and suffering. The cases involve two employees, Robert M. DiCarlo and Bernard J. Martin, who were injured in the course of their employment, collected workers’ compensation benefits, and then reached settlement agreements with third parties including damages for, […]

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Posted by Massachusetts Legal Resources - February 12, 2016 at 10:05 pm

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