Tag: Massachusetts

1
Foreign Contractor’s Failure to Register with Secretary of State Does Not Void Contract or Arbitration Clause
2
Insurer Granted Summary Judgment against General Contractor where Contract between Subcontractor and Injured Worker’s Firm Fails to Meet Indemnification Requirements
3
Inability to Determine Whether Owner Owed General Contractor when Subcontractor filed Lien Precludes Summary Judgment
4
Court Holds Claims Arising from Zoning Violations Subject to Professional Liability Exclusion, Insurer Not Obligated to Defend or Indemnify
5
Builder Liable for Intentional Infliction of Emotional Distress and Consumer Protection Act Violations Based on Verbal Abuse of New Home Purchasers
6
Owner Potentially Liable for Fraud and Consumer Protection Act Violations Based on False Promises of Payment
7
Insurer May Intervene Where it Has Legitimate Interest as Judgment Creditor in Outcome of Litigation
8
Architects Do Not Owe Special Duty of Care to Construction Workers
9
Court Addresses Implied Warranty of Habitability in Condominium Context
10
“Waiver of Subrogation” Clauses Do Not Bar Actions Arising Out of Gross Negligence or Violation of Statute or Regulation

Foreign Contractor’s Failure to Register with Secretary of State Does Not Void Contract or Arbitration Clause

City of Westfield v. Harris & Assocs. Painting, Inc., 567 F. Supp. 2d 252 (D. Mass. 2008)

In this case, the Federal District Court for the District of Massachusetts allowed a contractor’s motion to compel arbitration and remanded the case to arbitration despite the fact that the contractor failed to register as a foreign corporation with the Massachusetts Secretary of State as required by M.G.L. c. 30, § 39L.

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Insurer Granted Summary Judgment against General Contractor where Contract between Subcontractor and Injured Worker’s Firm Fails to Meet Indemnification Requirements

Connolly Bros., Inc. v. Nat’l Fire & Marine Ins. Co., Civ. No. 06-11673-NG, 2008 WL 5423198 (D. Mass. Sept. 30, 2008)

In this case, the Federal District Court for the District of Massachusetts granted an insurer’s motion for summary judgment on a general contractor’s claim for indemnification and for unfair and deceptive practices under M.G.L. c. 93A, because the general contractor was not covered for the relevant incident by the insurer’s policy.

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Inability to Determine Whether Owner Owed General Contractor when Subcontractor filed Lien Precludes Summary Judgment

In Nitro Dynamics v. Petruzzi Bros., Inc., 2008 WL 4635884 (Mass. Super. Ct. Sept. 26, 2008)

In this case, a subcontractor sued three defendants – the owner, the general contractor, and a surety – asserting claims for breach of contract, quantum meruit, and for recovery on a mechanic’s lien dissolution bond.  The Superior Court granted the owner’s motion for judicial notice of a stipulation of dismissal in a related action, but denied the owner’s motion for summary judgment.

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Court Holds Claims Arising from Zoning Violations Subject to Professional Liability Exclusion, Insurer Not Obligated to Defend or Indemnify

W. World Ins. Co. v. Azoff, Civ. No. 07-00494-BLS2, 2008 WL 4107481 (Mass. Super. Ct. May 15, 2008)

In this case, the Superior Court granted an insurer’s motion for summary judgment and denied the insured contractor’s cross-motion for summary judgment, holding that the insurer was not obligated to defend or indemnify the contractor for a claim brought against it in a separate action, because the claim fell under a professional liability exclusion in the relevant policies.

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Builder Liable for Intentional Infliction of Emotional Distress and Consumer Protection Act Violations Based on Verbal Abuse of New Home Purchasers

Lepp v. V.M.S. Realty Trust, 2008 WL 375971 (Mass. App. Div. Feb. 8, 2008)

This is a per curiam decision by the Massachusetts Appellate Division that addresses the liability of homebuilders and vendors.  In Lepp, the purchasers of a newly built home sued the vendor of the home for breach of contract for failure to install the agreed upon insulation.  The purchasers also sued the builder, who was an employee of the vendor, for breach of contract, breach of the implied warranty of good workmanship, intentional infliction of emotional distress and violation of M.G.L. c. 93A — the Massachusetts Consumer Protection Act.  The trial court found for the plaintiffs on all counts in a jury-waived trial and the defendants appealed.
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Owner Potentially Liable for Fraud and Consumer Protection Act Violations Based on False Promises of Payment

Atlantis Int’l Constr. Servs., Inc. v. Sluggo, LLC, 71 Mass. App. Ct. 1106 (2008) (Unpublished)

In this unpublished decision, the Massachusetts Appeals Court held that an owner could be held liable for fraud, breach of contract and violation of the Massachusetts Consumer Protection Act (M.G.L. c. 93A) for inducing a general contractor continue work based on the promise that the general contractor’s numerous disputed change order requests would be paid in full.  After completion of the project the owner refused to pay many of the general contractor’s change orders. Read More

Insurer May Intervene Where it Has Legitimate Interest as Judgment Creditor in Outcome of Litigation

U.S. Fid. & Guar. Co. v. E. Contractors, Inc., 2008 WL 190758 (D. Mass. Jan. 15, 2008)

In this case, the Federal District Court for the District of Massachusetts issued an order on a Motion to Intervene and Dissolve Attachment.  The motion to intervene was allowed and the petition for dissolution was allowed in part and denied in part.  Plaintiff was an issuer of security bonds and defendant was a construction company.  Plaintiff issued a series of bonds to secure defendant’s performance on several construction projects.  Defendant defaulted on the projects and subsequently plaintiff successfully secured an ex parte attachment of four of defendant’s properties.  Another insurance company that had also entered into surety agreements with the defendant previously secured a judgment against the defendant for $8,342,233.27.  This judgment was never satisfied due to defendant’s insolvency.  The insurance company claimed an interest in the attached properties. Read More

Architects Do Not Owe Special Duty of Care to Construction Workers

Leyden v. Spaulding & Slye Co., Inc., 2008 WL 241085 (Mass. Super. Ct. Jan. 3, 2008)

In this case the Superior Court granted an architect’s motion for summary judgment on claims brought against it by a construction worker for personal injuries sustained when the worker fell through a collapsed sump pump grate.  The defendant architect argued it was entitled to summary judgment because it owed no duty of care to the plaintiff. Read More

Court Addresses Implied Warranty of Habitability in Condominium Context

Berish v. Bornstein, 71 Mass. App. Ct. 1101 (2007) (Unpublished)

In this unpublished decision, the Massachusetts Appeals Court addressed the implied warranty of habitability as applied to construction of a residential condominium development.  Plaintiffs, who were trustees of a condominium association, appealed from the trial court’s ruling that faulty window installation in the units was not a latent defect and that faulty chimney attachments were not a safety threat to condominium unit inhabitants.  Plaintiffs also challenged the judge’s findings that certain other claims were time-barred.  The defendants (the condominium developer, an original trustee of the condominium trust, and the general contractor) cross-appealed from the judge’s ruling on the timeliness of plaintiffs’ claims for breach of the implied warranty of habitability and for negligence. Read More

“Waiver of Subrogation” Clauses Do Not Bar Actions Arising Out of Gross Negligence or Violation of Statute or Regulation

Am. Ins. Co. v. Siena Constr. Co., 2007 WL 4711517 (Mass. Super. Ct. Dec. 24, 2007)

In this case, the Superior Court considered two consolidated cases that both arose out of an explosion of a newly constructed building.  In both cases the plaintiffs were insurance companies acting as subrogees.  Defendants (general contractors and subcontractors) moved for summary judgment on the ground that recovery was barred by “Waiver of Subrogation” clauses found in the contracts.  The plaintiffs argued that the waiver of subrogation clause did not extend to damages caused by a defendant’s gross negligence or its violation of a statute or regulation.  In addition, they argued that the subcontractors were not protected by the waiver of subrogation clause.

The original judge in the case held that analogous case law concerning exculpatory clauses supported a denial of defendants’ summary judgment motion.  The judge also held that, by its terms, the waiver of subrogation clause did not include subcontractors.  In the consolidated case, the new judge accepted the rulings of prior judge and the motions for summary judgment were allowed in part and denied in part.  Plaintiffs’ claims were allowed to proceed but as to defendants with valid waiver of subrogation clauses (contractors not subcontractors) recovery was limited to damages arising from defendant’s gross negligence, or negligence premised on a violation of statute or regulation.

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