Tag: Massachusetts

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Findings of Arbitrator Will Not Be Overturned in Absence of Fraud
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Insurer Has Duty to Defend General Contractor for Injuries Arising Out of Subcontractor’s Work Where General Contractor is Named as Additional Insured on Subcontractor’s Policy
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Massachusetts Building Code Does Not Render Either Engineer or Architect Liable for Unsafe Working Conditions on Owner’s Site
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General Contractor Has No Indemnification Claim Against Subcontractor Where Claims Arise Out of Contractor’s Own Failure to Supervise
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Government Agency May Compel Production of Documents in Specific Format Through Subpoena Duces Tecum

Findings of Arbitrator Will Not Be Overturned in Absence of Fraud

Site, Inc. v. Peabody Constr. Co., Inc., 2007 WL 2458482 (Mass. App. Ct. Aug. 30, 2007) (Unpublished)

In this case, the Appeals Court affirmed the Superior Court’s denial of plaintiffs’ motion to vacate an arbitration award.  The defendant general contractor, Peabody Construction Company, refused to pay the plaintiff subcontractor, Site, Inc. on a subcontract after terminating the subcontractor prior to completion of the job.  The case went to arbitration.  After considering extensive evidence and testimony, the arbitrator found that the general contractor’s failure to make timely payment was a material breach of the subcontract.  Although the arbitrator found that general contractor’s material breach of the subcontract excused any subsequent failure by the subcontractor to perform its obligations under the subcontract, the arbitrator found that the subcontractor was not entitled to payment for the work it performed because the subcontractor “had not completely [and satisfactorily] performed all of its obligations under the subcontract.” Read More

Insurer Has Duty to Defend General Contractor for Injuries Arising Out of Subcontractor’s Work Where General Contractor is Named as Additional Insured on Subcontractor’s Policy

Parker v. John Moriarty & Assocs., Inc., 2007 WL 2429719 (Mass. Super. Ct. July 29, 2007)

This case arose from personal injuries suffered by the plaintiff while working at a construction site in Brighton, Massachusetts.  The general contractor of the construction project subcontracted some aspects of the project; plaintiff was an employee of the subcontractor.  The plaintiff filed a complaint, asserting a negligence claim against the general contractor for negligently failing to provide a safe workplace and the general contractor settled.  By third-party complaint, the general contractor brought claims against the subcontractor and the subcontractor’s insurer for indemnification, contribution, and breach of contract for failure to provide insurance.  The insurer moved for summary judgment on all claims against it, arguing that the insurance policy did not provide coverage on the claims.  The insurer argued that it did not owe a duty to defend the claims and did not have a duty to indemnify because the general contractor was not covered for the claims under the additional insured endorsement and such claims were excluded from coverage under the cross-suits provision.  The general contractor opposed and filed a cross-motion for summary judgment, asserting that, as a matter of law, the policy provided coverage in that the insurer had a duty to defend and to indemnify for the settlement of the claims.  The subcontractor also moved for summary judgment in its favor on the breach of contract claim for failure to provide insurance, arguing that it had named the general contractor as an additional insured on the policy. Read More

Massachusetts Building Code Does Not Render Either Engineer or Architect Liable for Unsafe Working Conditions on Owner’s Site

Garcia v. Federics, 2007 WL 2367672 (Mass. Super. Ct. July 9, 2007)

In this case, the Superior Court granted a motion for summary judgment brought by the architect and engineer of a project on claims asserted by a construction worker injured on the job.  As grounds for its ruling, the court found that neither the contract between the owner and the construction company nor the contract for architect’s services assigned responsibility to the architect or engineer for safety issues on the project.  Thus, the court found that the architect and engineer did not have a contractual duty to protect the worker against unsafe working conditions. 

In reaching its decision, the court rejected plaintiff’s argument that the Massachusetts Building Code created a duty for the architect and engineer to control safety conditions.  Specifically, the court noted that the Massachusetts Building Code places the responsibility for the conditions of the building on the owner of the building rather than the architect or engineer.  Plaintiff’s additional claims also failed because he could not demonstrate a reasonable expectation of proving that the architect and the engineer had a duty of care to the worker.  The cross-claims by the owner failed because the architect and the engineer were not directly liable to the worker.

General Contractor Has No Indemnification Claim Against Subcontractor Where Claims Arise Out of Contractor’s Own Failure to Supervise

Fireman’s Fund Ins. Co. v. Falco Constr. Corp., 493 F. Supp. 2d 143 (D. Mass. 2007)

A property insurer, Fireman’s Fund Insurance Company, asserted claims against a general contractor and subcontractor after an insured home sustained fire damage.  The general contractor had performed extensive renovations on the home, and the subcontractor had constructed a masonry fireplace at the home.  In Counts I and II, the insurer sought recovery from the subcontractor for improperly installing the fireplace on theories of negligence and breach of contract.  In Counts III and IV, the insurer brought the same claims against the general contractor for failing to supervise.  The general contractor subsequently filed a cross-claim for indemnification against the subcontractor. Read More

Government Agency May Compel Production of Documents in Specific Format Through Subpoena Duces Tecum

Nat’l Labor Relations Bd. v. Champagne Drywall, Inc., 502 F. Supp. 2d 179 (D. Mass. 2007)

Under the National Labor Relations Act, the National Labor Relations Board moved for an order from the court to enforce two subpoenas duces tecum served on Champagne Drywall as part of the NLRB’s investigation of Champagne’s alleged practice of refusing to consider and hire qualified job applicants based on their union affiliation.  Champagne objected because even though the data sought existed within the organization, Champagne did not possess the information in the format sought by the NLRB – namely, as a list. Read More

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