Hillside FXF, LLC, et al. v. Premier Design + Build Group, LLC, et al. (Lawyers Weekly No. 12-164-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-03831-BLS2 HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC, Plaintiffs vs. PREMIER DESIGN + BUILD GROUP, LLC, HALEY & ALDRICH, INC., & G. LOPES CONSTRUCTION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT PREMIER DESIGN + BUILD GROUP, LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST G. LOPES CONSTRUCTION, INC. This case arises out of the construction of a FedEx facility in Northborough, Massachusetts. Plaintiffs Hillside FXF, LLC (Hillside) and Jones Development Company, LLC (Jones) filed this action against defendants G. Lopes Construction, Inc. (Lopes), Premier Design + Build Group, LLC (Premier), and Haley & Aldrich, Inc. (Haley) seeking to recover damages relating to remedial work performed after the construction. This Court has already denied motions for summary judgment made by Haley and by Premier as to plaintiffs’ claims asserted against them. Now before this Court is Premier’s Motion for Summary Judgment as to Count VII of its Cross Claim against defendant Lopes. Premier seeks a declaration from this Court that its subcontract with Lopes contains a valid and enforceable duty to indemnify and that Lopes is obligated to indemnify, defend, and hold Premier harmless from any errors or deficiencies related to the construction project. After careful review of the parties’ submissions, this Court 2 concludes that Premier’s motion must be DENIED as to Lopes’ duty to indemnify but ALLOWED as to its duty to defend. BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiffs, are as follows. Hillside and Jones engage in commercial development and construction projects. On August 23, 2011, Hillside as the owner/developer and Premier as the general contractor entered into an agreement to construct a FedEx freight facility at 300 Bartlett Street, Northborough, Massachusetts (the Project). Because the site was on a relatively steep slope, a significant amount of cut and fill and excavation work was required to prepare it for construction. The plaintiffs retained Premier to perform this work. Premier in turn retained Lopes as a subcontractor to perform demolition, grading, and excavation for the Project. The defendant Haley was retained by Premier to provide on-site monitoring of the earthwork. On September 21, 2011, Lopes began removing trees at the Project site, and excavation at the site continued through the fall. Hillside authorized Premier to proceed with the foundation installation in late December 2011, and footings and foundations for the Project were installed shortly thereafter. In February 2012, it was noticed that the walls appeared to have shifted laterally. Ultimately, it was determined that the foundations had settled and that this was caused by improper fill work. There are disputes of fact as to which entity – Premier, Lopes, […]
Hillside FXF, LLC, et al. v. Premier Design + Build Group, LLC, et al. (Lawyers Weekly No. 12-158-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-03831-BLS2 HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC, Plaintiffs vs. PREMIER DESIGN + BUILD GROUP, LLC, HALEY & ALDRICH, INC., & G. LOPES CONSTRUCTION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT PREMIER DESIGN + BUILD GROUP, LLC’S MOTION FOR SUMMARY JUDGMENT AGAINST HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC This case arises out of the construction of a FedEx facility in Northborough, Massachusetts. Plaintiffs Hillside FXF, LLC (Hillside) and Jones Development Company, LLC (Jones) filed this action against defendants G. Lopes Construction, Inc. (Lopes), Premier Design + Build Group, LLC (Premier), and Haley & Aldrich, Inc. (Haley) seeking to recover damages relating to remedial work performed after the construction. This Court has already denied Haley’s summary judgment motion. This memorandum concerns the defendant Premier’s Motion for Summary Judgment as to plaintiffs’ claims against it. 1 Premier argues that release language in a change order bars all of the plaintiffs’ claims against it and that plaintiffs have in any event waived any claim because they failed to follow certain contractual provisions. After careful review of the summary judgment record, this Court concludes that there are questions of fact such that the Motion must be Denied. 1 Plaintiffs also filed a motion to strike three of Premier’s fact statements contained in Premier’s Superior Court Rule 9A (b) (5) statement of material facts. That motion is denied for the reasons stated in Premier’s opposition. 2 BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiffs, are as follows. Hillside and Jones engage in commercial development and construction projects. On August 23, 2011, Hillside as the owner/developer and Premier as the general contractor entered into an agreement to construct a FedEx freight facility at 300 Bartlett Street, Northborough, Massachusetts (the “Project”). Because the site was on a relatively steep slope, a significant amount of cut and fill and excavation work was required to prepare it for construction. The earthwork began in September 2011, with foundations and walls of the building installed in early 2012. Shortly thereafter, it was noticed that the walls appeared to have shifted laterally. Ultimately, it was determined that the foundations had settled and that this was caused by improper fill work. By the time the building was stabilized and the site repaired, Hillside had spent more than $ 3 million in remedial work. Premier’s Motion is based in part on language contained in its construction contract with Hillside (the Agreement). See Exhibit C of Joint Appendix. Article 7 of the Agreement states that “[i]f, during the period of construction, the Work [as defined by the Agreement] is found to be […]
Hillside FXF, LLC, et al. v. Premier Design + Build Group, LLC, et al. (Lawyers Weekly No. 12-147-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-03831-BLS2 HILLSIDE FXF, LLC & JONES DEVELOPMENT COMPANY, LLC, Plaintiffs vs. PREMIER DESIGN + BUILD GROUP, LLC, HALEY & ALDRICH, INC., & G. LOPES CONSTRUCTION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT HALEY & ALDRICH, INC.’S MOTION FOR SUMMARY JUDGMENT Plaintiffs Hillside FXF, LLC (Hillside) and Jones Development Company, LLC (Jones) filed this action against defendants, Haley & Aldrich, Inc. (Haley), Premier Design + Build Group, LLC (Premier), and G. Lopes Construction, Inc. (Lopes) seeking to recover damages relating to the construction of a freight facility in Northborough, Massachusetts. All three defendants have moved for summary judgment. This memorandum addresses that motion brought by the defendant Haley. The Plaintiffs’ Third Amended Complaint (the Complaint) asserts the following claims against Haley: breach of contract (Count II), gross negligence (Count VI), breach of express and implied warranties (Count VII), common law indemnity (Count VIII), reformation (Count IX), and negligent or intentional misrepresentation (Count X). Haley moves for summary judgment as to all of these counts. In the alternative, it argues that its liability must be capped pursuant to the written contracts it entered into with plaintiffs. The plaintiffs agree that summary judgment is appropriate as to Count VIII, their common law indemnity claim, but otherwise contest the 2 motion. This Court concludes that, with the exception of Count VIII, Haley’s motion must be Denied. BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiffs, are as follows. Hillside and Jones, both based in Kansas City, Missouri, engage in commercial development and construction projects. On August 23, 2011, Hillside as the owner/developer and Premier as the general contractor entered into an agreement to construct a FedEx freight facility at 300 Bartlett Street, Northborough, Massachusetts (the Project). The Project’s plans required a significant amount of cut and fill and excavation work at the site to prepare for the building’s construction. The plaintiffs hired Haley to perform geotechnical consulting work as well as soil testing. Before construction began, Haley prepared a lengthy Report that summarized the results of subsurface soil explorations and made certain recommendations as to geotechnical design and construction for the proposed facility. This Report included Haley’s analysis of soil at the Project and its moisture contents, as well as its recommendation that compacted granular fill be used at certain areas of the site where unsuitable soils were located. On June 28, 2011, Haley and Hillside entered into a written agreement (the Reliance Agreement) stating that the services performed by Haley were subject to the scope of services expressed in the Report and that Hillside could rely on the Report, subject to certain terms and […]
South End Weekends: Maltese Meetup, Wine Tasting, Art & Design
South End Patch
Things to Know in the South End Today, March 22: Art and Design at the BCA
1. Weather: The National Weather Service is predicting a partly sunny day with a high near 42 degrees. 2. Art Opening at BCA: Art & Design of the 20th & 21st Centuries combined with The Boston Print Fair opens at the Boston Center for The Arts (539 Tremont St.) March 21-24. AD20/21 features galleries specializing in modern to contemporary furniture, glass, ceramics and decorative arts alongside a wide array of modern to contemporary fine art. The Print Fair features dealers in American, European and Asian fine prints, drawings, photography and other works on paper. See here for more information. 3. Spingtime Wine Tasting: Stop by Formaggio Kitchen (268 Shawmut Ave.) between 2 and 4 p.m. on Saturday, March 23rd to sample an array of organic & biodynamic wines poured by David Mitchell from Mise Wine Co. They’ll help you choose a cheese to pair with your favorite. See here for more information. 4. Drew Bledsoe Clip: Former Patriots quarterback Drew Bledsoe was in town yesterday, not to reminisce about his days playing football, but to complain about the way Massachusetts handles its laws about wine shipping. Bledsoe now owns a winery in California, and says he can’t ship wine to his friends here in Massachusetts, including Tom Brady. See the clip here. 5. Nominate a Business: Mayor Menino’s annual Bike Friendly Business Awards are now open for nominations. These awards recognize companies that incorporate bike-friendly practices that encourage their employees or customers to ride their bikes. Gold, Silver and Bronze awards will be distributed at a special ceremony with Mayor Menino where the winner will receive a certificate and a “Bike Friendly Business” sticker to proudly display in their business. For the Bike Friendly Business Awards, please visit http://www.cityofboston.gov/bikes/bikebusiness/. Things you can do every day on South End Patch: Share your news with the rest of the community. Click here to add an announcement. Add your events to our events calendar. Click here to sign up for breaking news updates. Want up-to-the-minute news? Click here to follow us on Facebook or Twitter. Share your thoughts on your community in a blog. Click here to get started. South End Patch