The Hanover Insurance Group Inc. v. Raw Seafoods, Inc. (Lawyers Weekly No. 09-011-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 12-03503-BLS2 THE HANOVER INSURANCE GROUP INC., Plaintiff vs. RAW SEAFOODS, INC., Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT This case concerns a dispute over coverage between an insured and its insurer. Defendant Raw Seafoods, Inc. (RSI) is a seafood processor. In 2012, an RSI customer, Atlantic Capes Fisheries, Inc. (Atlantic), filed an action in federal court alleging that RSI’s negligent processing of its scallops resulted in their premature spoilage. RSI’s insurer, plaintiff Hanover Insurance Group, Inc. (Hanover), agreed to defend RSI under a reservation of rights and then filed the present action, seeking a declaration that it had no duty to indemnify RSI for any judgment Atlantic obtained. After the federal court judge granted summary judgment in favor of Atlantic and entered judgment against RSI, the parties filed cross motions for partial summary judgment in the instant action. This Court (Roach, J.) granted summary judgment in favor of Hanover but the Appeals Court reversed. 91 Mass.App.Ct. 401 (2017). RSI now renews it Motion for Partial Summary Judgment. For the reasons that follow, the Motion is Allowed. 2 BACKGROUND RSI is a seafood processing facility in Fall River. Atlantic, a seafood company that sells scallops and other seafood, regularly uses RSI to apportion, pack, and freeze the fresh scallops that it purchases from fishing vessels. Upon delivery of Atlantic’s scallops, RSI staff inspects the scallops for quality, reports the results to Atlantic, and receives processing instructions. After processing, the scallops are transported to a third-party cold storage facility, Arctic Cold Storage (Arctic), from which Atlantic ships its customers’ orders. In July 2011, a batch of scallops that RSI had processed made their way through customs in Denmark where it was observed that the scallops were decomposed and emitting a strong smell of ammonia. They were deemed unacceptable for human consumption and sent back to the United States. Once in the United States, the Food and Drug Administration tested the batch and confirmed that it was spoiled. The batch of scallops was then returned to Arctic’s facility, where representatives from Atlantic and RSI jointly inspected the shipment and again confirmed the damage. They also inspected another batch of scallops processed by RSI around the same time as the rejected batch, and discovered more damaged scallops. At the time, Hanover insured RSI through a Commercial General Liability (CGL) Policy. The Policy provides in relevant part that Hanover “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The Policy applies to “property damage” that is caused by an “occurrence,” which is […]
JRM Hauling & Recycling Services, Inc. v. The Newark Group, Inc. (Lawyers Weekly No. 09-056-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2015-3790 BLS 1 JRM HAULING & RECYCLING SERVICES, INC. vs. THE NEWARK GROUP, INC. FINDINGS OF FACT AND RULINGS OF LAW AFTER TRIAL This contract dispute was tried before me, jury waived, from October 23 to 27, 2017. The dispute arises out of a contract between plaintiff, JRM Hauling & Recycling Services, Inc. (“JRM”), and defendant, The Newark Group, Inc. (“Newark”), wherein Newark agreed to purchase and JRM agreed to sell “all secondary fiber produced by [JRM] at” JRM’s location in Malden, Massachusetts (the “Agreement”). JRM claims that Newark wrongfully terminated the Agreement in January 2015. By its terms, the Agreement was to run for ten years from its execution on November 1, 2006 to October 31, 2016. JRM asserts its claim in two counts: breach of contract and breach of the implied covenant of good faith and fair dealing. Newark counterclaims, pursuant to a provision of the Agreement, seeking indemnification from JRM for Newark’s costs, including legal fees and disbursements, incurred defending any unsuccessful claims made by JRM. I. FINDINGS OF FACT The Agreement JRM, a company with headquarters in Peabody, Massachusetts, is a hauler of trash and 1 recycled material. JRM is under contract with municipalities and businesses to pick up at curbside the trash generated by the occupants. JRM picks up trash that has been separated by the occupants to put newspaper and other paper into one bin and all other trash in another bin. The contract in this case concerns what JRM was to do with the “loose paper” picked up at curbside. Under its contracts with the municipalities, JRM was required to guarantee that the materials it collected from the residents would be recycled.. Newark is a New Jersey corporation with corporate offices in Cranford, New Jersey. In February 2015, as discussed below, Newark was acquired by Caraustar Industries, Inc. In 2005, JRM learned that a facility located at 1130 Eastern Avenue in Malden, Massachusetts (“the Malden facility”) might be available as a location for JRM’s operations. The facility had been operated previously as a recycling center. JRM began negotiations with the owner of the facility, Robert Heffernan, who was, at that time, a Newark employee. At around the same time in 2005, Newark was looking for sources of supply of Secondary Fiber/RMP for use by its mill in Fitchburg, Massachusetts. Secondary Fiber/RMP is a description of the loose news and other paper collected by JRM. The mill in Fitchburg manufactured recycled paper board products from the secondary fiber. In particular, the mill was producing “graphic board” to be used as game boards and covers for books. Jonathan Gold was a long time executive of […]
Anne Gamble Ten Taxpayer Group, et al. v. Health Facilities Appeals Board, et al. (Lawyers Weekly No. 09-031-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-3545-BLS2 ANNE GAMBLE TEN TAXPAYER GROUP, consisting of GUSTAVE H. MURBY, ANNE C. GAMBLE, WALTER J. GAMBLE, STEPHEN GELLIS, M.D., LORING CONANT M.D., JR., CONANT LOUISE, BRIAN GREENBERG, PEGGY GREENBERG, KAREN D’AMATO, CHRISTINE BARENSFELD, JOHN W. HAGERMAN, ROBERT GAMBLE, SHIRLEY C. DUFF, JAMES K. DUFF, JAMES M. SMITH, and ELLEN K. ANDERSSON, Plaintiffs vs. HEALTH FACILITIES APPEALS BOARD, MONICA BHAREL, M.D., in her capacity as COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MARYLOU SUDDERS, in her capacity as SECRETARY OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, and CHILDREN’S HOSPITAL CORPORATION d/b/a CHILDREN’S HOSPITAL, Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS AND ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT This is one of several lawsuits filed by a group of plaintiffs unhappy with a decision by the defendant Boston Children’s Hospital (BCH) to eliminate the Prouty Garden as part of a modernization and expansion project. In the instant case, plaintiffs challenge the October 27, 2016 determination by the Commissioner of the Department of Public Health and the Public Health Council (collectively, the Department) to issue a Determination of Need in connection with that project. The Department’s decision is subject to judicial review pursuant to G.L.c. 30A §14 and G.L.c. 111 §25E. With the Administrative Record having been filed, this case is before this Court on Cross Motions for Judgment on the Pleadings, as required by Superior Court Standing Order 1-96. Plaintiffs also seek leave to amend their Complaint. This Court concludes 2 that the plaintiffs’ motions must be DENIED and the defendants’ Cross Motion must be ALLOWED, for reasons set forth herein. BACKGROUND Section 25C of Chapter 111 of the Massachusetts General Laws states that a health care institution contemplating a construction project that requires a “substantial capital expenditure” must first obtain a determination of need or “DoN” from the Department of Public Health (DPH). The purpose of the statute is to “control unnecessary expansion by health care institutions of their patient care facilities,” Howe v. Health Facilities Appeals Bd., 20 Mass.App.Ct. 531, 532 (1985), and to encourage the appropriate allocation of resources for health care purposes. Shoolman v. Health Facilities Appeals Bd., 404 Mass. 33, 36 (1989). In order to obtain a DoN, the health care institution must file an Application, which is reviewed for completeness and then forwarded for to the Public Health Council (PHC) and the Commissioner of DPH for their consideration. 105 C.M.R. §510-100.530.1 The Application is also subject to comments and a public hearing. G.L.c. 111 §25C, 105 C.M.R. §§100.400-100.410. The DoN Program Director prepares a staff report (the Staff Summary). 105 C.M.R. §§100.420-100.421. Upon consideration of the Application, the […]
Malebranche, et al. v. Colonial Automotive Group, Inc., et al. (Lawyers Weekly No. 09-028-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT Civ. No. 2016-3479-BLS2 DJHON MALEBRANCHE, WISKINDA LAMANDIER, NICHOLAS PEZZANO, and CHRISTOPHER FARIAS, on behalf of themselves and all others similarly situated, Plaintiffs vs. COLONIAL AUTOMOTIVE GROUP, INC.; GORDON CHEVROLET, INC. f/k/a GORDON CHEVROLET GEO, INC.; COLONIAL NISSAN OF MEDFORD, INC.; GORDON VOLKSWAGEN, INC.; COLONIAL DODGE, INC; and LAWRENCE GORDON, Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ AMENDED MOTION TO DISMISS This is a putative class action against a family of automotive dealerships and their parent company, Colonial Automotive Group, Inc. (CAG), alleging a failure to pay car sales employees compensation due under the Massachusetts wage and overtime laws. G.L.c. 149 §§ 148, 150. Plaintiffs Djhon Malebranche, Wiskinda Lamandier, Nicholas Pezzano, and Christopher Farias were employed as such salespersons. The First Amended Class Action Complaint (the Complaint) asserted both statutory violations (Counts I through V) and common law claims (Counts VI through IX). Defendants CAG and Gordon Chevrolet, Inc. (Gordon Chevrolet) moved to dismiss pursuant to Rule 12(b) (6), Mass.R.Civ. P. By the time of the motion hearing, the plaintiffs had voluntarily dismissed the common law claims, leaving only Counts I through V. As to those claims, CAG and Gordon Chevrolet contend that the Complaint fails to 2 allege facts sufficient to show that either of them ever employed plaintiffs.1 For the reasons set forth below, this Court concludes that the Motion must be Denied. BACKGROUND The Complaint sets forth the following allegations, which this Court assumes as true for purposes of this Motion. CAG is a domestic corporation that manages and controls the business operations and employment matters for all of the sixteen automotive dealerships that comprise the “Colonial Automotive Group,” including Gordon Chevrolet, Colonial Nissan, Colonial Dodge, and Gordon Volkswagen. ¶¶ 5, 15. Gordon Chevrolet (formerly known as Gordon Chevrolet Geo) is a foreign corporation with a principal office in Acton, Massachusetts. ¶ 5. Colonial Nissan, Colonial Dodge, and Gordon Volkswagen are all domestic corporations with principal offices in Medford, Hudson, and Westborough, Massachusetts, respectively. ¶¶ 6-9. As sub-corporations or subsidiaries of CAG, the dealerships function as CAG’s agents. ¶ 36. CAG and the dealerships all do business under the Colonial Automotive Group umbrella, and regularly sell cars to members of the public. ¶¶ 15-16, 34, 41. CAG controls, operates, oversees, and/or directs both the business and employment operations for the dealerships, including hiring and firing, creating and implementing payroll policies, overseeing employee performance, maintaining personnel and employment records, and controlling work schedules. ¶ 33. CAG also operates a general website for all of the dealerships, representing the group “as a single ‘dealership’ that actively employs over 600 employees.” ¶ 34. 1 Defendants also contended that the plaintiffs did not […]
Categories: News Tags: 0902817, Automotive, Colonial, Group, Inc., Lawyers, Malebranche, Weekly
Nguyen v. Arbella Insurance Group (Lawyers Weekly No. 11-064-17)
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 16-P-834 Appeals Court VINCENT NGUYEN vs. ARBELLA INSURANCE GROUP.[1] No. 16-P-834. Middlesex. February 16, 2017. – May 23, 2017. Present: Kafker, C.J., Wolohojian, & Sacks, JJ. Insurance, Insurer’s obligation to defend, Defense of proceedings against insured, Homeowner’s insurance, Business exclusion. Contract, Insurance. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on April 11, 2014. The case was heard by Bruce R. Henry, J., on motions for summary judgment, and a motion for reconsideration was considered by him. Joseph A. Padolsky for the plaintiff. Roberta R. Fitzpatrick (Kathryn Annbinder Covarrubias also present) for the defendant. SACKS, J. The plaintiff, Vincent Nguyen, having been sued in Federal court on various tort, civil rights, and other theories by a former fellow employee of the Newton police department, requested that the defendant, Arbella Insurance Group (Arbella), as issuer of his homeowner’s insurance policy, provide him a defense. After Arbella declined, citing the policy’s “business pursuits” exclusion, Nguyen filed a Superior Court action seeking a declaration that Arbella was obligated to provide him a defense. On cross motions for summary judgment, a judge agreed with Arbella that the “business pursuits” exclusion applied. Nguyen appealed the resulting judgment in Arbella’s favor and the order denying his motion for reconsideration. We affirm. Background. a. The underlying suit. In the underlying Federal action, the plaintiff, Jeanne Sweeney Mooney, alleged that at all relevant times she was an employee of the Newton police department and most recently worked as the executive administrator for the chief of police. The defendants were the city of Newton, its mayor in his official capacity, and the then-chief of police, a police lieutenant, and Nguyen (a civilian employee in the chief’s office), all in their individual capacities. Mooney alleged that the chief, the lieutenant, and Nguyen conspired to coerce her into accepting additional duties in violation of a union contract, as retaliation for Mooney’s objecting to both the potential contract violation and the chief’s improperly obtaining an “exceptional service” pay raise. She also alleged that the chief and Nguyen, in order to obtain leverage over Mooney, conspired to stage a false “I-Team Investigation” by a television station regarding her use of her break time; the ruse relied on photographs that Nguyen took, during working hours, of […]
The Hanover Insurance Group, Inc. v. Raw Seafoods, Inc. (Lawyers Weekly No. 11-048-17)
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-1554 Appeals Court THE HANOVER INSURANCE GROUP, INC. vs. RAW SEAFOODS, INC. No. 15-P-1554. Suffolk. September 16, 2016. – April 26, 2017. Present: Agnes, Neyman, & Henry, JJ. Insurance, General liability insurance, Coverage. Words, “Occurrence.” Civil action commenced in the Superior Court Department on September 21, 2012. The case was heard by Christine M. Roach, J., on motions for summary judgment. Michael J. Daly (Samuel P. Blatchley also present) for the defendant. Jeffrey E. Dolan (Anthony M. Campo also present) for the plaintiff. NEYMAN, J. In this case we analyze whether damage to scallops at a seafood processing facility, where the precise cause of damage is unknown, constituted an “occurrence” within the meaning of a commercial general liability (CGL) policy. A Superior Court judge concluded that the defendant-insured, Raw Seafoods, Inc. (RSI), has no reasonable expectation of proving that its claimed loss was caused by an occurrence, and granted summary judgment in favor of the plaintiff-insurer, Hanover Insurance Group, Inc. RSI appeals therefrom. We reverse. Background. 1. RSI and the damaged scallops. RSI is a seafood processing facility in Fall River. One of RSI’s customers, Atlantic Capes Fisheries, Inc. (Atlantic), sells scallops and other types of seafood around the world. Atlantic purchases fresh scallops from fishing vessels, then transports the scallops to RSI for processing, portioning, packaging, and freezing. RSI’s staff inspects the scallops for quality upon arrival, reports the results to Atlantic, and receives processing instructions from Atlantic. After processing, the scallops are transported to Arctic Cold Storage (Arctic), a third-party cold storage facility. Atlantic then ships its customers’ orders directly from Arctic’s facility. RSI handles approximately 4 million to 6 million pounds of scallops for Atlantic per year. In July, 2011, RSI-processed scallops were making their way through customs in Denmark, heading to an Atlantic customer. Upon inspection, the 37,102 pounds of scallops were found to be decomposed, exhibited a strong ammonia smell, and were deemed unacceptable for human consumption. By all accounts, something was rotten in the state of Denmark.[1] The United States Food and Drug Administration tested the scallops and confirmed that they were spoiled. The scallops were then returned to Arctic’s facility, where representatives from Atlantic and RSI jointly inspected the shipment and confirmed the damage. They also inspected another batch […]
Erecruit Holdings, LLC v. Willis Group Holdings, LLC (Lawyers Weekly No. 12-003-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-0557-BLS2 ERECRUIT HOLDINGS, LLC Plaintiff and SIXCEL, LLC Plaintiff/Intervenor vs. WILLIS GROUP HOLDINGS, LLC Defendant MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF ERECRUIT HOLDINGS, LLC’S MOTION FOR JUDGMENT ON THE PLEADINGS This action arising from a business deal gone sour between the plaintiff Erecruit Holdings, LLC (Erecruit) and the defendant Willis Group Holdings, LLC. Erecruit alleges that Willis breached a written contract called the Non-Perpetual Software License Agreement (the Agreement) by fabricating a pretext for terminating the Agreement, then refusing to pay Erecruit for amounts owed. In response, Willis asserted a Counterclaim alleging that Erecruit misled it as to Erecruit’s capabilities and then after Willis had already paid Erecruit $ 93,500, failed to deliver on the promises it made to provide Willis with a fully functional software product – promises that Erecruit knew at the time that it made them that it could not keep. Erecruit now moves for a judgment on the pleadings as to Willis’s Counterclaim. This Court concludes that the Motion must be DENIED for the reasons set forth in Willis’s Opposition, and offers the following by way of brief explanation. A motion pursuant to Rule 12(c), Mass.R.Civ.P., is governed by the same standard that apples to a motion made pursuant to Rule 12(b) (6). That is, it must be denied if the targeted claims contain factual allegations that are “adequately detailed so as to plausibly suggest an entitlement to relief.” Greenleaf Arms Realty Trust, LLC v. New Boston Fund, Inc., 81 Mass. App.Ct. 282, 288 (2012) (reversing lower court’s allowance of Rule 12(b) (6) motion); see also Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Plausibility is not the same as credibility. Thus, that the claim relies on facts that are improbable does not support dismissal as long as those allegations, “even if doubtful in fact,” “raise a right to relief above the speculative level.” Iannachino, supra, quoting Bell Atlantic Corp. v. Twombly, 550 U.S.544, 557 (2007). In seeking judgment in its favor before any discovery in the case has been conducted, Erecruit misapplies this standard, parsing the wording of the Counterclaim in a way that ignores the requirement that the Court draw all reasonable inferences from its factual allegations in favor of Willis. Although it is true that the claim of fraud (Count II of the Counterclaim) does call for greater particularity in pleadings, this Court concludes that even as to that count, the Counterclaim satisfies what is required of a claimant at this early stage in the litigation. The Counterclaim goes into some detail about the various misrepresentations that Erecruit made to Willis, […]
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 […]