Turner Construction Company v. MJ Flaherty Company (Lawyers Weekly No. 12-028-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 13-2308 TURNER CONSTRUCTION COMPANY vs. MJ FLAHERTY COMPANY MEMORANDUM OF DECISION AND ORDER ON PLAINTFF’S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF’S MOTION TO STRIKE THE EXPERT REPORT OF JACK GRANT INTRODUCTION This case arises out of a subcontract between the plaintiff, Turner Construction Company (Turner), and the defendant MJ Flaherty Company (Flaherty). Turner was the general contractor on the construction of a 23 story commercial building at 157 Berkeley Street and certain related remodeling of an adjacent building for Liberty Mutual Insurance Company (the Project). Flaherty entered into a subcontract with Turner to perform the HVAC work on the Project (the Subcontract). The initial value of the Subcontract was $ 12,462,252. Turner brought this action against Flaherty to recover damages that it alleges that it suffered when Flaherty failed to complete its work on the Project and Turner had to hire another subcontractor to complete the HVAC work.1 Flaherty has asserted counterclaims against Turner. Some of these claims are based on Turner’s failure to pay Flaherty for all of the work that it performed. Here, the amount in dispute 1 Turner’s complaint also includes allegations concerning subcontracts that Turner entered into with Flaherty on two other projects, a new building at University of Massachusetts at Lowell and a Liberty Mutual Conference Center. Turner alleges that Flaherty also failed to complete these projects causing it damage; however, the focus of this litigation appears to be the 157 Berkeley Project. It seems that Flaherty is no longer in business. 2 is complicated by the fact that in early 2013 several sub-subcontractors and material suppliers to Flaherty were not being paid and began to file notices of contract in anticipation of asserting mechanics’ liens on the Project. In response, Turner entered into a series of agreements with Flaherty pursuant to which it issued checks to Flaherty for subcontracted work that were made jointly payable to Flaherty and the vendors to insure that they were being paid out of the sums Turner was disbursing to Flaherty. Flaherty, however, also has alleged that as a result of the manner in which Turner ran the Project, Flaherty was so adversely affected that the value of Flaherty as a going concern was adversely impacted and this resulted in a $ 6.4 million reduction in Flaherty’s “new worth.” This is, of course, a paradigm claim for consequential damages. This claim is the subject of the motion now before the court. It would be an extraordinary understatement to say that this case has a tortured procedural history. Turner has filed two previous motions for summary judgment that the court was unable to decide on their merits because they […]
Turner Construction Company v. MJ Flaherty Company (Lawyers Weekly No. 12-028-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 13-2308 TURNER CONSTRUCTION COMPANY vs. MJ FLAHERTY COMPANY MEMORANDUM OF DECISION AND ORDER ON PLAINTFF’S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF’S MOTION TO STRIKE THE EXPERT REPORT OF JACK GRANT INTRODUCTION This case arises out of a subcontract between the plaintiff, Turner Construction Company (Turner), and the defendant MJ Flaherty Company (Flaherty). Turner was the general contractor on the construction of a 23 story commercial building at 157 Berkeley Street and certain related remodeling of an adjacent building for Liberty Mutual Insurance Company (the Project). Flaherty entered into a subcontract with Turner to perform the HVAC work on the Project (the Subcontract). The initial value of the Subcontract was $ 12,462,252. Turner brought this action against Flaherty to recover damages that it alleges that it suffered when Flaherty failed to complete its work on the Project and Turner had to hire another subcontractor to complete the HVAC work.1 Flaherty has asserted counterclaims against Turner. Some of these claims are based on Turner’s failure to pay Flaherty for all of the work that it performed. Here, the amount in dispute 1 Turner’s complaint also includes allegations concerning subcontracts that Turner entered into with Flaherty on two other projects, a new building at University of Massachusetts at Lowell and a Liberty Mutual Conference Center. Turner alleges that Flaherty also failed to complete these projects causing it damage; however, the focus of this litigation appears to be the 157 Berkeley Project. It seems that Flaherty is no longer in business. 2 is complicated by the fact that in early 2013 several sub-subcontractors and material suppliers to Flaherty were not being paid and began to file notices of contract in anticipation of asserting mechanics’ liens on the Project. In response, Turner entered into a series of agreements with Flaherty pursuant to which it issued checks to Flaherty for subcontracted work that were made jointly payable to Flaherty and the vendors to insure that they were being paid out of the sums Turner was disbursing to Flaherty. Flaherty, however, also has alleged that as a result of the manner in which Turner ran the Project, Flaherty was so adversely affected that the value of Flaherty as a going concern was adversely impacted and this resulted in a $ 6.4 million reduction in Flaherty’s “new worth.” This is, of course, a paradigm claim for consequential damages. This claim is the subject of the motion now before the court. It would be an extraordinary understatement to say that this case has a tortured procedural history. Turner has filed two previous motions for summary judgment that the court was unable to decide on their merits because they […]
Flaherty v. Sheriff of Suffolk County, et al. (Lawyers Weekly No. 11-023-15)
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-778 Appeals Court GEORGE H. FLAHERTY vs. SHERIFF OF SUFFOLK COUNTY & another.[1] No. 14-P-778. Suffolk. December 9, 2014. – March 16, 2015. Present: Cohen, Fecteau, & Massing, JJ. Sheriff. Correction Officer. Public Employment, Assault pay benefits, Worker’s compensation, Retirement. Workers’ Compensation Act, Public employee. Limitations, Statute of. Commonwealth, Claim against. Civil action commenced in the Superior Court Department on November 15, 2010. The case was heard by Linda E. Giles, J., on motions for summary judgment. Christopher G. Perillo for the defendants. Arinda R. Brooks for the plaintiff. MASSING, J. The defendants, the sheriff of Suffolk County and the Suffolk County sheriff’s department (collectively referred to as the Commonwealth[2]), appeal from a judgment of the Superior Court finding the Commonwealth liable for assault pay owed to the plaintiff, George H. Flaherty, under G. L. c. 126, § 18A (sometimes referred to as the statute). The Commonwealth contends (1) that Flaherty’s entitlement to assault pay terminated when he reached the mandatory age of retirement for correction officers and became entitled to superannuation retirement benefits and (2) that his action is barred by the statute of limitations. The Superior Court judge rejected both contentions. We agree with the judge’s conclusion that Flaherty was entitled to assault pay as long as he was receiving workers’ compensation benefits, and that his action is not time barred, but we agree with the Commonwealth that the applicable statute of limitations is G. L. c. 260, § 3A, precluding Flaherty from recovering payments that became due more than three years before he filed his complaint. Background. While working as a Suffolk County correction officer in January, 2006, Flaherty was injured as a result of prisoner violence. An administrative judge of the Department of Industrial Accidents found that he was partially disabled and awarded him workers’ compensation benefits beginning January 4, 2006. He continued to receive workers’ compensation benefits until September 1, 2010, the effective date of a lump sum settlement agreement that ended his entitlement to those benefits. On November 15, 2010, Flaherty filed an action in the Superior Court claiming that the Commonwealth was required by G. L. c. 126, § 18A, to compensate him with assault pay during the period he received workers’ compensation benefits. The Commonwealth did not dispute that Flaherty was entitled to assault pay but argued that his superannuation […]