Posts tagged "Omega"

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

Categories: News   Tags: , , , , , , , ,

Nurse v. Omega US Insurance, Inc. (Lawyers Weekly No. 11-156-15)

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   14-P-653                                        Appeals Court   KARL NURSE  vs.  OMEGA US INSURANCE, INC. No. 14-P-653. Suffolk.     January 13, 2015. – October 5, 2015.   Present:  Trainor, Vuono, & Hanlon, JJ. Insurance, Coverage, Water damage.  Contract, Insurance.  Limitations, Statute of.  Practice, Civil, Summary judgment, Declaratory proceeding, Statute of limitations, Commencement of action.     Civil action commenced in the Superior Court Department on December 28, 2011.   The case was heard by Edward P. Leibensperger, J., on a motion for summary judgment.     James M. Dunn for the plaintiff. Thomas M. Prokop for the defendant.      VUONO, J.  This case arises from the denial of coverage by the defendant, Omega US Insurance, Inc. (Omega[1]), for water damage to a multi-unit residence owned by the plaintiff, Karl Nurse.  The damage is alleged to have been caused by a burst pipe which resulted from frigid weather.  A judge of the Superior Court granted summary judgment in favor of Omega on the ground that Nurse’s action for declaratory relief and breach of contract was barred by the two-year statute of limitations set forth in G. L. c. 175, § 99, Twelfth (the statute or § 99), and incorporated as a provision of the policy.[2]  While there is no dispute that Nurse did not commence this action within two years of the date the loss occurred, he contends that his complaint was nevertheless timely because the so-called “discovery rule” applies to toll the statute of limitations period.  We conclude that the discovery rule does not apply in these circumstances and, therefore, summary judgment was proper. Background.  The material facts, in the light most favorable to Nurse, the nonmoving party, are as follows.[3]  Nurse owns a three-unit residence (property or building) located at 294 Shawmut Avenue in Boston.  The property was insured under a dwelling policy issued by Omega for the period from April 27, 2009, to April 27, 2010.  The policy was subject to the requirements of G. L. c. 175, § 99, Twelfth, which sets forth standard terms applicable to all fire insurance policies in the Commonwealth including a two-year statute of limitations for any claims covered by such policies.[4] In December, 2009, the property was vacant except for ongoing construction work in the third-floor unit, which required that the plumbing supplying water to that unit remain active.[5]  Both December 17 and December 18 were extremely cold days with high temperatures reported at […]

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Posted by Massachusetts Legal Resources - October 5, 2015 at 3:06 pm

Categories: News   Tags: , , , , , ,