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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