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Aggregate Industries – Northeast Region, Inc. v. Hugo Key and Sons, Inc., et al. (Lawyers Weekly No. 11-114-16)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-916 Appeals Court AGGREGATE INDUSTRIES – NORTHEAST REGION, INC. vs. HUGO KEY AND SONS, INC., & another.[1] No. 15-P-916. Essex. April 13, 2016. – September 1, 2016. Present: Wolohojian, Kinder, & Neyman, JJ. Contract, Construction contract, Offer and acceptance, Performance and breach, Public works. Damages, Quantum meruit, Public Works Contract. Bond, Public works. Public Works, Payment bond. Consumer Protection Act, Businessman’s claim, Unfair or deceptive act. Practice, Civil, Attorney’s fees. Civil action commenced in the Superior Court Department on October 31, 2011. The case was heard by Timothy Q. Feeley, J., and a motion for a new trial was considered by him. Cole M. Young for the plaintiffs. William T. Harrington for the defendants. WOLOHOJIAN, J. The plaintiff subcontractor, Aggregate Industries – Northeast Region, Inc. (Aggregate), contracted with the defendant general contractor, Hugo Key and Sons, Inc. (Hugo Key), for the supply of material and labor for a public works construction project in Salem. A dispute arose about payment, and Aggregate filed a complaint in the Superior Court asserting contract and quantum meruit claims under G. L. c. 149, § 29, the Commonwealth’s bond statute for publicly funded construction projects, and violations of G. L. c. 93A (c. 93A). Following a jury-waived trial, judgment entered in favor of Hugo Key on all counts of the complaint, with the exception of a discreet quantum meruit award, not under the bond statute, in favor of Aggregate. Judgment also entered in favor of Hugo Key on a c. 93A counterclaim. Aggregate appeals, claiming the judge erred in his application of contract principles and in his analysis of the statutes at issue. We affirm in part, and reverse in part. Background. We summarize the facts as found by the judge, supplemented by undisputed information from the record. In 2011, Hugo Key and Salem entered into a contract for the construction of the Salem Wharf project. The contract was secured by a payment bond in the amount of $ 1,336,925, furnished by the defendant Argonaut Insurance Company (Argonaut). Hugo Key, in turn, solicited bids from subcontractors for the portion of the project that required bituminous concrete pavement work. On or about January 14, 2011, Aggregate submitted an estimate for the pavement work, which included two provisions relevant to the present dispute. The first stated: “Grader Service: $ 400.00/HR.” The […]

Associated Industries of Massachusetts Mutual Insurance Company v. Hough (Lawyers Weekly No. 11-137-13)

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‑1927 Appeals Court ASSOCIATED INDUSTRIES OF MASSACHUSETTS MUTUAL INSURANCE COMPANY vs. SHAWN HOUGH. No. 12‑P‑1927. Middlesex. September 10, 2013. ‑ November 19, 2013. Present: Rapoza, C.J., Wolohojian, & Milkey, JJ. Workers’ Compensation Act, Attorney’s fees. Practice, Civil, Attorney’s fees. Civil action commenced in the Superior Court Department on July 21, 2008. A motion for attorney’s fees and costs was heard by S. Jane Haggerty, J. Teresa Brooks Benoit for the defendant. Holly B. Anderson for the plaintiff. MILKEY, J. Pursuant to G. L. c. 152, § 11D(3), an insurer brought an action in Superior Court against Shawn Hough, seeking to recoup excess workers’ compensation benefits it had paid to him. Hough successfully defended against that action, and the sole question raised by this appeal is whether he is thereby entitled to attorney’s fees. Because we agree with the Superior Court judge that the answer is “no,” we affirm. Background. Hough was employed by Athol Table, LLC. Based on a 2002 workplace incident, Hough sought workers’ compensation benefits. By decision dated September 29, 2006, an administrative judge of the Department of Industrial Accidents (DIA) ultimately ruled in favor of the employer’s insurer, Associated Industries of Massachusetts Mutual Insurance Company (insurer). Although the administrative judge determined that Hough suffered from a permanent disability, she concluded that he failed to demonstrate that his disability was causally related to the 2002 incident. Hough initially pursued, but then abandoned, an appeal. Accordingly, the correctness of the administrative judge’s decision is not before us. Subsequent to the administrative judge’s decision, the insurer filed an action in Superior Court pursuant to G. L. c. 152, § 11D(3), seeking to recoup the partial incapacity benefits that it had been ordered to pay by an earlier conference order. After trial, a Superior Court judge allowed Hough’s motion for a required finding based on his inability to pay. The insurer does not challenge that ruling; in fact, the insurer acknowledged Hough’s inability to pay after the close of evidence. Having successfully defended against the recoupment action, Hough argued that he was entitled to attorney’s fees. Unable to identify a statute that expressly authorizes fee shifting in this specific context, Hough relied “by analogy” on various fee-shifting provisions set forth in G. L. c. 152, the workers’ compensation act (act). Discerning no statutory basis […]