Downey, et al. v. Chutehall Construction Co. (Lawyers Weekly No. 11-001-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1062 Appeals Court CHRISTOPHER DOWNEY & another[1] vs. CHUTEHALL CONSTRUCTION CO., LTD. No. 14-P-1062. Suffolk. September 14, 2015. – January 6, 2016. Present: Cypher, Green, & Hanlon, JJ. Consumer Protection Act, Unfair or deceptive act, Waiver. State Building Code. Waiver. Practice, Civil, Consumer protection case, Summary judgment, Instructions to jury, Waiver. Civil action commenced in the Superior Court Department on July 2, 2010. Motions for summary judgment were heard by Judith Fabricant, J., and the case was tried before Thomas A. Connors, J. Alicia L. Downey for the plaintiffs. John D. Fitzpatrick for the defendant. HANLON, J. After a trial, the jury returned a verdict for the defendant, Chutehall Construction Co., Ltd. (Chutehall). The plaintiffs, Christopher and Mairead Downey, appeal from the resulting judgment. Their appeal presents a narrow issue — whether a contractor’s potential liability for a violation of the relevant building code, which, pursuant to G. L. c. 142A, § 17(10), constitutes a per se G. L. c. 93A violation, is waived when a homeowner requests that the work be done in a manner that results in the code violation.[2] We agree with the Downeys that, at least in the circumstances of this case, an oral waiver of building code requirements by the homeowner does not preclude the contractor’s liability for a building code violation — and the resultant c. 93A violation — particularly where a violation carries potential public safety consequences. Background. The jury could have found the following facts. The Downeys hired Chutehall in 2005 to replace the roof and a roof deck on their townhouse in the Beacon Hill section of Boston. It is undisputed that the building code permits no more than two layers of roofing on the building. See 780 Code Mass. Regs. § 1512.3 (1997). The original proposal that Chutehall submitted to the Downeys, as well as the final bill, included a line item for stripping off the existing roof system. In fact, however, Chutehall did not strip the roof, but instead installed a new rubber membrane over the existing roof. Sharply disputed at trial was whether Christopher Downey represented to Chutehall that there was only one layer of roofing at the time of the work; refused to permit Chutehall to strip the existing layers from the roof; refused to permit Chutehall to do test cuts in the roof to determine […]
Celco Construction Corp. v. Town of Avon (Lawyers Weekly No. 11-019-15)
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 13-P-1880 Appeals Court CELCO CONSTRUCTION CORP. vs. TOWN OF AVON. No. 13-P-1880. Norfolk. October 8, 2014. – March 2, 2015. Present: Green, Rubin, & Agnes, JJ. Contract, Public works, Bidding for contract, Municipality, Modification, Promissory estoppel. Public Works, Bidding procedure, Extra work. Municipal Corporations, Contracts, Estoppel. Civil action commenced in the Superior Court Department on October 22, 2010. The case was heard by Patrick F. Brady, J., on a motion for summary judgment. Raymond S. Ewer for the plaintiff. Doris R. MacKenzie Ehrens for the defendant. GREEN, J. In its successful bid to perform work for the defendant town of Avon (town) on a water main extension project, the plaintiff, Celco Construction Corp. (Celco), assigned a unit price of $ 0.01 as its charge to excavate each cubic yard of rock from the project site. That price was substantially lower than Celco’s actual cost to remove each cubic yard of rock; Celco constructed its bid based on its belief that the amount of rock actually on site would be considerably less than the unverified estimate indicated in the contract bid documents, so that its low unit price would give it a competitive advantage when compared to other bidders who assigned a unit price to rock removal that more closely approximated the actual cost.[1] When the amount of rock turned out to exceed the estimate by more than 1,500 cubic yards, Celco sought an “equitable adjustment” in the contract price to recover its increased costs for rock removal. See G. L. c. 30, § 39N. The town refused Celco’s request, Celco filed a complaint in the Superior Court, and a judge of that court allowed the town’s motion for summary judgment. Celco appealed, and we now affirm the judgment. Background. We summarize the undisputed facts appearing in the summary judgment record relevant to Celco’s claim of entitlement to an equitable adjustment in the contract price.[2] In 2008, the town solicited bids to perform work on a project for the installation of water mains and associated reconstruction of roadways disturbed during such installation. Celco submitted a bid and was awarded the contract. Celco’s bid included unit prices for various elements of the work including, as relevant to its claim for equitable adjustment, a specified unit price of $ 0.01 per cubic yard for excavation and disposal of […]
Downey, et al. v. Chutehall Construction Co., Inc., et al. v. The Follett Company, Inc. (Lawyers Weekly No. 11-149-14)
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 13-P-819 Appeals Court CHRISTOPHER DOWNEY & another[1] vs. CHUTEHALL CONSTRUCTION CO., LTD.; THE FOLLETT COMPANY, INC., third-party defendant. No. 13-P-819. Suffolk. September 15, 2014. – November 13, 2014. Present: Berry, Kafker, & Carhart, JJ. Libel and Slander. Consumer Protection Act, Unfair or deceptive act. Privileged Communication. Evidence, Opinion, Privileged communication. Practice, Civil, Summary judgment, Entry of judgment. Civil action commenced in the Superior Court Department on July 2, 2010. A motion for partial summary judgment was heard by Judith Fabricant, J., and entry of final and separate judgment was ordered by her. John D. Fitzpatrick for Chutehall Construction Co., Ltd. Heather Gamache for The Follett Company, Inc. KAFKER, J. Homeowners Christopher and Mairead Downey (the Downeys) hired a contractor, The Follett Company, Inc. (Follett), to investigate the cause of their leaky roof. Follett reported that the roof had been installed a number of years earlier over fiberboard roof insulation that was soaking wet, thereby causing the later leakage. The Downeys then sued the installer of the roof, Chutehall Construction Co., Ltd. (Chutehall), for substandard workmanship, and Chutehall brought third-party defamation and G. L. c. 93A claims against Follett, asserting that the statement about installing the roof over the soaking wet fiberboard insulation was false and defamatory. A Superior Court judge granted Follett’s motion for summary judgment on Chutehall’s claims against Follett. Follett then filed a motion for the entry of a separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), which Chutehall opposed. The judge allowed Follett’s motion, judgment entered, and this appeal followed. On appeal, Chutehall argues that the judge erred in deciding as a matter of law (1) that Follett’s report about the roof constituted a statement of opinion not fact, (2) that Follett was not negligent in making the statement, and (3) that the statement was protected by a conditional privilege. Chutehall also argues that the judge erred in allowing the motion for entry of separate and final judgment. We conclude that the statement by Follett was protected by a conditional privilege that was not abused, and therefore, summary judgment was properly allowed on the defamation claim. As the c. 93A claim depends on the merits of the defamation claim, summary judgment was properly allowed on this claim as well. There was no error in the […]
DiCarlo, et al. v. Suffolk Construction Co., Inc., et al. (Lawyers Weekly No. 11-142-14)
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 13-P-388 Appeals Court ROBERT M. DiCARLO & another[1] vs. SUFFOLK CONSTRUCTION CO., INC., & others.[2] No. 13-P-388. Suffolk. December 10, 2013. – November 6, 2014. Present: Berry, Meade, & Agnes, JJ. Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer. Lien. 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 Carhart, J. Alice J. Klein for the plaintiffs. Wystan M. Ackerman for Twin City Fire Insurance Company. Marie Cheung-Truslow, for National Association of Subrogation Professionals, amicus curiae, submitted a brief. BERRY, J. This appeal involves a workers’ compensation insurer’s lien under G. L. c. 152, § 15, and poses the question whether, in cases where an injured employee receives workers’ compensation benefits and then sues and successfully negotiates the allocation of noneconomic damages to the employee in a lawsuit against a third-party tortfeasor, the § 15 lien attaches to the noneconomic damage recovery, such as for pain and suffering. We conclude that this interlocutory appeal[3] from an order denying the plaintiff’s amended petition for settlement is controlled by this court’s previous decision in Curry v. Great Am. Ins. Co., 80 Mass. App. Ct. 592 (2011) (Curry).[4] Curry held that an insurer’s lien under G. L. c. 152, § 15, did not reach the settlement proceeds of an employee’s third-party action that were allocated to the worker for his pain and suffering and to his spouse for loss of consortium. The fact that Curry was a wrongful death action brought by the estate of a deceased worker, and that this case is a tort action brought by an injured worker, does not, we believe, provide a meaningful basis on which to distinguish Curry, and not apply its rationale.[5] As the Curry court pointed out, a deceased worker’s legal representative “stands in the shoes of the deceased” worker for purposes of § 15. Curry, supra at 595 & 597 n.7. We begin by noting that the holding in Curry has been followed by the Department of Industrial Accidents. See Circular Letter No. 341, issued by the department on April 12, 2012, which states, in pertinent part: “The department is presently revising its § 15 interactive calculator [for allocations under G. L. c. […]
Mello Construction, Inc. v. Division of Capital Asset Management (Lawyers Weekly No. 11-147-13)
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 12‑P‑1429 Appeals Court MELLO CONSTRUCTION, INC., vs. DIVISION OF CAPITAL ASSET MANAGEMENT. No. 12‑P‑1429. Bristol. June 4, 2013. ‑ December 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Public Works, General contractor. License. Governmental Immunity. Damages. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on July 25, 2007. The case was heard by Thomas F. McGuire, Jr., J., on motions for judgment on the pleadings. John J. McNamara for the plaintiff. James A. Sweeney, Assistant Attorney General, for the defendant. GRAHAM, J. The dispositive question presented in this appeal is whether a general contractor may sue the division of capital asset management and maintenance (DCAM) for money damages for a discretionary decision to deny an annual application for certification to bid on public construction projects.[1] We conclude that it may not and affirm a Superior Court judgment dismissing the contractor’s complaint. Background. From 1985 until 2004, Mello Construction, Inc. (Mello), a general contractor specializing in large-scale public construction projects, received annual certificates of eligibility from DCAM.[2] In October, 2004, Mello submitted its annual application for certification. See G. L. c. 149, § 44D(2), as amended by St. 2004, c. 193, § 15. On August 19, 2005, DCAM issued a preliminary determination denying the application based in part on two negative contractor evaluations.[3] See G. L. c. 149, § 44D(4). As permitted by the statute, Mello timely requested reconsideration and submitted additional information and documentation to DCAM, including lengthy rebuttals of the allegedly biased evaluations. See ibid. On October 27, 2005, DCAM, refusing to disregard the negative evaluations, denied Mello’s application for four reasons: (1) failure to achieve a minimum average project rating required for certification; (2) receipt of two failing scores on the Berkley and Andover projects (see note 3, supra); (3) failure to disclose on its application the termination from the Norwood project; and (4) failure to disclose the invoking of a performance bond.[4] Following a hearing in January, 2006, the Attorney General issued a decision on April 6, 2007, affirming the denial of the application.[5] See ibid. In July, 2007, Mello commenced this Superior Court action against DCAM, seeking monetary damages.[6] On December 1, 2009, DCAM filed a motion to have the case proceed pursuant to a writ of certiorari under […]
Memorial Day Travel: No Construction, Free Coffee Served
The Massachusetts Department of Transportation has released a list of its accommodations for drivers on one of the heaviest traffic weekends of the year. Here’s what driver’s can expect this Memorial Day Weekend, provided by MassDOT: Construction work on major roadways will be suspended between Friday, May 24 at noon and the start of business Tuesday, May 28. Free coffee will be served at 18 MassDOT service plazas between 10 p.m. Memorial Day, Monday, May 27 and 5 a.m. Tuesday, May 28. MBTA buses will operate on a Sunday schedule on Memorial Day, Monday, May 27. MassDOT recommends avoiding driving during peak traffic times, which are between 1 p.m. and 7 p.m. Thursday, Friday and Monday. A specific note on where traffic is heaviest, from MassDOT: “Traffic is especially heavy at the I-84 interchange at Exit 9 in Sturbridge on the Friday of Memorial Day weekend and at Exit 11A, I-495, which handles cars headed south to Cape Cod and north to New Hampshire and Maine. In 2012, the Friday before Memorial Day was the 13th busiest day on the Turnpike in terms of toll transactions with approximately 350,000 logged between I-95 and the New York Border.” SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Former Herald Building Demolition, Ink Block Construction to Start
In a ceremony filled with memories from Boston Herald employees and hope for the future development of the neighborhood, Mayor Menino, state reps and city officials gathered in the South End on Thursday to say goodbye to the old building and welcome the new Ink Block development. Menino said he was happy to see a bridge built between the South End, Chinatown and South Boston with the new development, and the first full-sized grocery store come to the South End. “The South End deserves this type of development,” he said. “As part of the ongoing transformation of the South End, this project will grow the neighborhood’s vitality with its diverse housing mix, new pedestrian activity and retail energy.” The new development, situated at the corner of Harrison Ave and Traveler Street, will feature 475 units of housing in five buildings and 85,000 square feet of retail space, including a 50,000-square-foot Whole Foods Market, which will be the chain’s largest location in Boston. “We are thrilled to officially begin construction on what we are proud to say will become the new center of gravity for life in the South End,” said Ted Tye, managing partner of the development firm on the project, National Development. “Ink Block will transform this currently underutilized block by adding stylish neighborhood-focused, trend-setting housing, restaurants, exciting shops and entertainment options, making this the newest location for 18-hour living in Boston.” But not everyone at the ceremony was excited to see the building be torn down. Joe Fitzgerald, a 43-year veteran of the Boston Herald, reminisced about the days and long hours spent at the building, the time in 1982 when the paper was almost shut down, and the daily rumbling of the newspaper presses doing their work late into the night. “From all of us at the Boston Herald, I hope you’ll be as happy living here as we were working here,” he said. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Categories: Arrests Tags: Block, Building, Construction, Demolition, Former, Herald, Start
Week in Review: Ink Block Construction to Start, Hepatitis B Scare at BMC
The following were the top headlines on South End Patch from April 1 to April 5, 2013: Police: Arrest Made for Attempted Dwight Street Break-Ins Boston Police arrested a Dwight Street resident for allegedly attempting to break into two residences with a pair of scissors. Construction to Start at Ink Block in April A ground-breaking ceremony will be held at the future Ink Block site on Harrison Ave on April 11. Most South End Hubway Stations Up and Running Six stations are planned for the South End neighborhood in 2013. Hepatitis B Exposure Scare at Boston Medical Center The hospital said on Saturday that five patients may have been exposed to Hepatitis B while they were treated at the hospital. Things to Know in the South End Today, April 5: Sibling Rivalry Closed After nine years in the neighborhood, Sibling Rivalry on Tremont Street has closed its doors. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Construction to Start at Ink Block in April
Construction at the Ink Block apartment complex site on Harrison Avenue is slated to start in April, but not before a special ground-breaking ceremony is held on April 11. Called the “Ink Block Party,” the event will feature Mayor Menino, Boston Redevelopment Authority Director Peter Meade, Ted Tye, managing partner with National Development, the project’s developer, and Joe Fitzgerald, a columnist from the Boston Herald. Menino will be removing a symbolic brick from the old Boston Herald building, and Fitzgerald will share memories from the paper’s 54-year history in the building. The Herald re-located to the Seaport District in 2011. The finished $ 200 million development will include 471 apartments, a Whole Foods supermarket, and other shops and restaurants on the 6-acre site. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Categories: Arrests Tags: April, Block, Construction, Start
Reading Co-Operative Bank v. Suffolk Construction Company, Inc. (Lawyers Weekly No. 10-038-13)
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‑11159 READING CO-OPERATIVE BANK vs. SUFFOLK CONSTRUCTION COMPANY, INC. Suffolk. November 6, 2012. ‑ March 13, 2013. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ. Uniform Commercial Code, Secured creditor, Damages. Damages, Mitigation. Estoppel. Civil action commenced in the Superior Court Department on May 25, 2006. The case was tried before Stephen E. Neel, J., and entry of judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. R. Robert Popeo (Paul J. Ricotta with him) for the defendant. Nelson G. Apjohn (Cynthia M. Guizzetti with him) for the plaintiff. LENK, J. This case requires us to determine, among other things, whether art. 9 of the Uniform Commercial Code displaces the common law on the question of the proper measure of a secured creditor’s recovery under G. L. c. 106, § 9-405. We conclude that it does. The defendant, Suffolk Construction Company, Inc. (Suffolk), contracted with Benchmark Mechanical Systems (subcontractor) for construction of elements of a heating, ventilation, and air conditioning (HVAC) system at a building project in Reading. As partial collateral for a revolving line of credit, the subcontractor assigned to the plaintiff, Reading Co-Operative Bank (bank), its right to receive payment under the contract with Suffolk. Suffolk received notification of the assignment and agreed to make payments directly to the bank. However, Suffolk instead made twelve payments to the subcontractor. The subcontractor subsequently ceased business operations, with an outstanding debt to the bank on its line of credit. Seeking recovery of the total value of the misdirected payments, the bank filed an action in the Superior Court for breach of contract and violation of the Uniform Commercial Code (UCC), pursuant to G. L. c. 106, § 9-405. A Superior Court jury found Suffolk liable on both counts for ten of the twelve checks that Suffolk had delivered to the subcontractor. The jury found that the bank was estopped from recovering with respect to the final two checks. The jury calculated the bank’s actual damages as $ 533,348.62, and the judge entered judgment on the contract claim in this amount. However, concluding that he was statutorily required to do so, the judge entered judgment on the statutory claim in the amount of $ 3,015,000.49, the full face value […]