Coghlin Electrical Contractors, Inc. v. Gilbane Building Company, et al. (Lawyers Weekly No. 10-149-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11778 COGHLIN ELECTRICAL CONTRACTORS, INC. vs. GILBANE BUILDING COMPANY & another;[1] DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE, third-party defendant. Worcester. March 2, 2015. – September 2, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Contract, Public works, Construction contract, Delivery, Warranty, Indemnity. Warranty. Indemnity. Public Works, Construction management at risk. Civil action commenced in the Superior Court Department on July 17, 2013. A motion to dismiss a third-party complaint was heard by Brian A. Davis, J. The Supreme Judicial Court granted an application for direct appellate review. John W. DiNicola, II (Michael Brangwynne with him) for Gilbane Building Company. James A. Sweeney, Assistant Attorney General, for Division of Capital Asset Management and Maintenance. The following submitted briefs for amici curiae: David J. Hatem, Cheryl A. Waterhouse, & Amanda E. Mathieu for American Council of Engineering Companies of Massachusetts & another. Shannon A. Reilly for Construction Industries of Massachusetts. Joel Lewin, Robert V. Lizza, Jonathan T. Elder, & Robert T. Ferguson, Jr., for Associated General Contractors of Massachusetts, Inc. Hugh J. Gorman, III, & Jeffrey J. Pyle for Columbia Construction Company. GANTS, C.J. This case requires us to resolve three issues regarding a public construction contract that implements the construction management at risk delivery method, pursuant to G. L. c. 149A: (1) Does the owner who furnishes the plans and specifications in a public construction management at risk project give an implied warranty of their sufficiency for the purpose intended, as the owner does under our common law in traditional design-bid-build construction projects? (2) If so, did the parties to the construction management at risk contract in this case disclaim the implied warranty? (3) If they did not, did the indemnification provision in the contract prohibit the construction manager at risk (CMAR) from filing a third-party complaint against the owner in a case brought by a subcontractor seeking reimbursement of additional costs, thus requiring the CMAR to file a separate complaint against the owner to recover the additional costs caused by an insufficient or defective design under the implied warranty? We conclude: (1) under our common law, a public owner of a construction management at risk project gives an implied warranty regarding the designer’s plans and specifications, but the scope of liability arising from that implied […]
Commonwealth v. DaSilva (Lawyers Weekly No. 10-149-15)
COMMONWEALTH vs. EMMANUEL DaSILVA. SJC-11458 SUPREME JUDICIAL COURT OF MASSACHUSETTS 2015 Mass. LEXIS 151 December 5, 2014, Argued March 26, 2015, Decided NOTICE: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE MASSACHUSETTS REPORTER USERS ARE REQUESTED TO NOTIFY THE CLERK OF THE COURT OF ANY FORMAL ERRORS SO THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS. PRIOR-HISTORY: Suffolk. Indictments found and returned in the Superior Court Department on May 2, 2007. The cases were tried before Frank M. Gaziano , J. HEADNOTES-1 Homicide. Grand Jury. Evidence, Grand jury proceedings, Testimony before grand jury, Prior misconduct, Hearsay, Relevancy and materiality, Impeachment of credibility, Exculpatory. Witness, Impeachment. Practice. Criminal, Capital case, Grand jury proceedings, Transcript of testimony before grand jury, Recording of proceedings, Argument by prosecutor, Instructions to jury. COUNSEL: John F. Palmer for the defendant. Dara Z. Kesselheim, Assistant District Attorney (Mark D. Zanini & Julie Sunkle Higgins, Assistant District Attorneys, with her) for the Commonwealth. JUDGES: Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ. OPINION BY: SPINA OPINION Spina, J. The defendant was a participant in a drive-by shooting on February 13, 2007, in the Roxbury section of Boston. The motive was revenge against David Evans for the shooting of a family friend, “A.J.,” and an assault on a family member. However, the targeted group of young men standing across the street from Evans’s apartment at the time of the shooting had nothing to do with Evans. One member of the group was killed, and two were wounded. The defendant was convicted of murder in the first degree and various related offenses. On appeal the defendant asserts error in (1) the admission of the grand jury testimony of a Commonwealth witness; (2) the admission of evidence of prior bad acts; (3) the admission of evidence that the defendant refused to have his custodial interrogation recorded; (4) the admission of evidence of 911 calls received by a police dispatcher; (5) the admission of evidence concerning the course of the investigation and the role of the grand jury; (6) the prosecutor’s impeachment of a defense witness with her failure to report exculpatory evidence to police; (7) the prosecutor’s closing argument; and (8) the judge’s decision declining to give a so-called Bowden instruction. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We affirm the convictions and decline the defendant’s request that we grant relief under G. L. c. 278, § 33E. 1. Background. The jury could have found the following facts. We reserve other details for discussion of the particular issues. A brief description of family relations is in order before we describe the events of February 13, 2007, that led up to the shooting later the same day. A critical witness for the Commonwealth was Clarimundo DaSilva,1 who is an uncle of the […]