The Division of Capital Asset Management and Maintenance (DCAM), the owner of a construction project, entered into a contract with a designer to prepare the project’s designs. DCAM contracted with Gilbane Building Company to be the construction manager at risk (CMAR). Gilbane subcontracted with Coghlin Electrical Contractors, Inc. to perform electrical work. Coghlin later filed a complaint against Gilbane alleging that Gilbane breached the subcontract by causing Coghlin to incur additional costs resulting from design errors. Gilbane filed a third-party complaint against DCAM, asserting that DCAM breached its contract with Gilbane by refusing to pay Gilbane the amounts claimed by Coghlin. The trial court allowed DCAM’s motion to dismiss the third-party complaint. The Supreme Judicial Court vacated the superior court’s judgment, holding (1) 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 warranty is limited; (2) the construction management at risk contract in this case did not disclaim the implied warranty; and (3) the contract's indemnification provision did not prohibit Gilbane from filing a third-party complaint against DCAM seeking reimbursement of additional costs under the implied warranty for damages claimed by Coghlin caused by an insufficient or defective design. Remanded View "Coghlin Elec. Contractors, Inc. v. Gilbane Bldg. Co." on Justia Law
Ayer Properties, LLC (Ayer) purchased and converted a building into condominiums. Trustees of the Market Gallery Condominium Trust (trustees) filed an action against Ayer seeking damages stemming from Ayer’s negligent construction of elements of the building. A superior court judge found Ayer was negligent in its construction of window frames, masonry, and roof. However, the judge concluded that the economic loss rule precluded the trustees from recovering for damage resulting from the defective masonry work because it did not cause damage to any individual units. The Supreme Judicial Court (1) affirmed the judge’s decision as to the window frames and roof and remanded for entry of an order awarding additional damages for the negligently constructed masonry; but (2) reversed the judge’s decision to reduce the repair and replacement damages by twenty percent and remanded for entry of judgment in the full amount of damages established at trial. View "Wyman v. Ayer Props., LLC" on Justia Law
Posted in: Construction Law
Plaintiff, a subcontractor, filed an action to enforce a mechanic's lien on certain land. More than a year later, Defendants, acting as principal debtor and the surety, executed and recorded a surety bond to dissolve the lien pursuant to Mass. Gen. Laws. ch. 254, 14. The bond named Plaintiff as an obligee. Plaintiff subsequently amended its complaint to include Defendants as defendants in the underlying complaint and to add a claim to enforce the bond against them. At issue was whether Plaintiff's amendment of its original complaint constituted timely commencement of its action to enforce a bond pursuant to section 14. The lower court found that although Plaintiff had not filed the amended complaint within ninety days of receipt of notice of the bond, service of its motion to amend on Defendants within that ninety-day period satisfied the section 14 requirement that a claimant have "commenced" a civil action within that period in order to enforce the bond. The Supreme Court affirmed, holding that the commencement requirement in section 14 was satisfied on the facts of this case because the amendment to the complaint related back to the date on which Plaintiff filed its original action against Corporation. View "Nes Rentals v. Me. Drilling & Blasting, Inc." on Justia Law
After falling down a staircase at a bar and restaurant in Boston, a college student died. Plaintiffs, the student's parents, filed this action against the restaurant and trustees of a trust that owned the land and buildings within which the restaurant operated. The complaint alleged claims against the restaurant and trustees for wrongful death and for violation of Mass. Gen. Laws ch. 93A. Plaintiffs based their chapter 93A claim on Defendants' alleged building code violations, which Plaintiffs claimed constituted unfair or deceptive conduct. A jury returned a verdict for Defendants on Plaintiffs' wrongful death claims, and the trial judge found in favor of Plaintiffs on the chapter 93A claim, finding that the student fell and suffered a fatal injury because the stairs were in an unsafe, defective condition having been rebuilt without necessary building permits. The Supreme Court vacated the judgment, holding that Plaintiffs were entitled to recover on their chapter 93A claim but that the judge erred in her calculation and award of damages. Remanded. View "Klairmont v. Gainsboro Rest., Inc." on Justia Law
Construction Company contracted with Subcontractor for construction of elements of an HVAC system. As partial collateral for a revolving line of credit, Subcontractor assigned to Bank its right to receive payment under the contract with Construction Company. Construction Company instead made twelve payments to Subcontractor. Subcontractor subsequently ceased business operations, leaving an outstanding debt to Bank on its line of credit. Bank filed an action against Construction Company for breach of contract and violation of the UCC. A jury found (1) Construction Company liable on both counts for ten of the twelve checks that it had delivered to Subcontractor, and (2) Bank was estopped from recovering with respect to the final two checks. The judge entered judgment on the statutory claim in the amount of $3,015,000, the full face value of the ten checks. The Supreme Court affirmed in part and reversed in part, holding that the trial judge (1) properly entered judgment on Bank's statutory claim in the amount of the wrongfully midirected payments; but (2) erred in denying the bank's motion for partial judgment notwithstanding the verdict with respect to the final two checks, as there was insufficient evidence to support Construction Company's defense of estoppel. View "Reading Coop. Bank v. Constr. Co." on Justia Law
In 2004-2005, Costa & Son Construction performed site work for the general contractor (Braitt) on such a project in Bridgewater. After Braitt terminated the relationship Costa sued, alleging breach of contract and violations of G.L. c. 93A. Costa sought to recover damages under a payment bond obtained by Brait from Arch Insurance, G.L. c. 149, 29. Brait asserted similar counterclaims against Costa. Arch argued that Costa had relinquished any right to claim against the bond pursuant to a provision of his subcontract with Brait. The trial court granted Brait and Arch directed verdict with respect to claims under the bond. A jury returned a verdict for Costa, against Brait. The Massachusetts Supreme Court vacated the directed verdict. A subcontractor on a public construction project for which a payment bond has been obtained by the general contractor pursuant to G.L. c. 149, 29, may not by private agreement forgo its right to pursue payment under the bond. The court also vacated the portion of the amended judgment granting consequential damages to Costa; consequential damages were precluded by the contract. View "Costa v. Brait Builders Corp." on Justia Law
Posted in: Construction Law, Contracts, Government Contracts, Insurance Law, Massachusetts Supreme Court
The Wetlands Protection Act, G.L. c. 131, 40, requires a conservation commission to issue a decision on a requested order of conditions within 21 days after holding a public hearing on the applicant's notice of intent to perform work covered by the act. Following the owner’s request for an extension, a hearing on his application for construction of a pile-supported pier and floating dock was held on April 6; the commission voted to deny the application on April 27 and mailed notice on April 28, 22 days after the hearing. The department reversed, based on the commission’s failure to timely act. In the meantime, the commission issued an enforcement order, based on work being done on the applicant’s property. The Supreme Judicial Court held that an applicant may waive the statutory time restriction, but any waiver must be voluntary in fact, its duration defined and reasonable in length, and notice of the waiver's duration must be a matter of public record, available to all interested persons. In this case, the applicant is entitled to proceed under the order issued by the department. View "Garrity v. Conservation Comm'n of Hingham" on Justia Law
Posted in: Construction Law, Government & Administrative Law, Massachusetts Supreme Court, Real Estate & Property Law
This case stemmed from the town's solicitation of bids for the construction of a new police station. Barr Inc. submitted the lowest bid but the town determined that Barr was not a "responsible and eligible bidder," and that the contract should instead be awarded to the next-lowest bidder. Under G.L.c. 149, 44A(2)(D), contracts for the construction of public buildings estimated to cost above $100,000 "shall be awarded to the lowest responsible and eligible general bidder." At issue was whether, when an awarding authority was making a determination as to bidder responsibility, it was constrained to look only at materials compiled as part of the Department of Capital Asset Management's (DCAM's) contractor certification process. The court concluded that the competitive bidding statute placed no such restriction on awarding authorities. Therefore, the court could not conclude that the town exceeded its statutory authority by conducting an investigation into Barr's performance in past projects. View "Barr Inc. v. Town of Holliston" on Justia Law
Plaintiff filed a complaint against defendants alleging defamation, violation of G.L. c. 93A, 11, civil conspiracy, and tortious interference with contractual and business relations and defendants filed counterclaims. At issue, among others, was whether actions taken by an employer against a former employee could violate G.L. c. 151B, 4(4), and (4A), sections of the antidiscrimination law that respectively prohibited retaliation and interference with a protected right. The court held that an employer or other person could be liable to a former employee under these sections for retaliatory or interfering conduct that occurred after the employment relationship had terminated. The court also affirmed in part and reversed in part the remaining issues in case.
Defendant appealed his conviction of possession of a firearm without a firearm identification card, carrying a loaded firearm without a license, and resisting arrest. At issue was whether the court properly denied defendant's motion to suppress and properly convicted him. The court affirmed the denial of defendant's motion and held that there was no error in denying his pretrial motion to suppress evidence where the firearm was recovered as a result of a lawful seizure of his person; there was sufficient evidence to support his convictions of resisting arrest to and unlawful possession of a firearm where he charged at officers and used physical force against one officer; and there was no merit to his ineffective assistance of counsel claim that counsel failed to suppress his statement in response to an officer where there was sufficient evidence from which a rational trier of fact could have could have inferred that he knew that the two men following him were police officers and that the police wished to stop him. The court also held that defendant's right to bear arms and to self-defense under the Second Amendment and his equal protection guarantees under Federal and State Constitutions were not violated.