Court: APPEALS COURT OF MASSACHUSETTS
Citation: 46 Mass. App. Ct. 1109 (1999)
Parties: J. K. SCANLAN COMPANY, INC. & OTHERS [1]
Docket No.: 97-P-1692
Decision Date: JANUARY 21, 1999
Judges: BROWN, PORADA & GREENBERG, JJ.

MEMORANDUM AND ORDER UNDER RULE 1:28

J.K. Scanlan Company, Inc. (Scanlan), the general contractor on two public construction projects at issue in this case, appeals from summary judgment entered in favor of Montle Plumbing & Heating Co., Inc. (Montle), a subcontractor, on Montle''s claims under G. L. c. 149, s. 29. The relevant facts are set out in the Superior Court judge''s April 23, 1997, memorandum of decision; we do not repeat them here. Scanlan disputes the judge''s ruling, in connection with Scanlan''s counterclaim, that Scanlan failed to comply with the subcontract''s written notice provision, modeled on G. L. c. 149, s. 44F, regarding the general contractor''s claims for reimbursement against the subcontractor. We affirm.

1. Oral notice of claim. Scanlan first argues that Montle had actual notice of Scanlan''s claims. It is axiomatic that where the statute or contract requires written notice, oral communication of the claim will not suffice. See Central Tow Co. v. Boston, 371 Mass. 341, 344-345 (1976); Barboza v. Aetna Cas. & Sur. Co., 18 Mass. App. Ct. 323, 327-328 (1984). Even assuming that Montle had actual notice of Scanlan''s claims as a result of discussions at the weekly job meetings between the project manager and the subcontractors, the statute and contract are clear on the written notice requirement. The cases upon which Scanlan relies do not hold otherwise.
2. Requirement of written notice of claim. Scanlan maintains that it satisfied the contractual requirement of written notice by providing Montle with the written minutes from meetings at which claims were discussed with the subcontractors. Even if we were to assume that written minutes of a meeting could be deemed to satisfy the requirement of written notice of a claim, the minutes included in the summary judgment materials here lack the most basic information that would put Montle on notice of the claims against it. Good faith would seem to dictate more. See generally Sutton Corp. v. Metropolitan Dist. Commn., 423 Mass. 200, 205 (1996). Scanlan argues that because the written notice provision of the contract does not specify what information must be included in the written notice of a claim, the references in the minutesto potential claims or unsatisfactory work should suffice.(2)

In interpreting a contract, however, we rely on the plain meaning of its terms. Central Tow Co. v. City of Boston, 371 Mass. at 344- 345. Weitzel v. Travelers Ins. Cos., 417 Mass. 149, 153 (1994). A claim, as defined in Webster''s Third New International Dictionary (1961), envisions a demand for payment due.(3)

As we have said in the case of a claim under G. L. c. 149, s. 29, "[t]he notice requirement can be satisfied by a brief letter from the supplier to the contractor which will make unambiguous the claimed rights of all." Barboza v. Aetna Cas. & Sur. Co., 18 Mass. App. Ct. at 328. Hence, the common understanding of a written notice of a claim would require something more than the vague, generalized warnings here, sent to all the subcontractors on the job, that the subcontractors might be charged for the clerk''s time or that certain of Montle''s work was not satisfactory. We agree with the Superior Court judge that the documents proffered by Scanlan in opposition to Montle''s motion for summary judgment do not satisfy the notice provision of the subcontract as a matter of law. ""It ill serves the statutory scheme . . . and would stimulate litigation, if we obscured the relatively simple . . . prerequisites upon which all parties in public contracting, including the sureties, presumably rely."" Barboza v. Aetna Cas. & Sur. Co., 18 Mass. App. Ct. at 328. Accordingly, Scanlan was not entitled to reimbursement for its claims against Montle and the judge was correct in entering summary judgment in Montle''s favor. We look with favor on Montle's request for an award of attorney's fees and costs in connection with this appeal. Within thirty days after the issuance of the rescript, see Mass.R.A.P. 23, as amended, 367 Mass. 921 (1975), Montle may file with this court a petition for attorney's fees and costs in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 206, 20 (1989).

Judgment Affirmed.

End of Decision.

1. Hartford Casualty Insurance Company and Insurance Company of North America

2. Compare G. L. c. 149, s. 29, governing claims of suppliers and subcontractors against the general contractor''s surety, requiring that written notice include the amount claimed and the parties to whom the work and materials were furnished; Lawrence- Lynch Corp. v. Department of Envtl. Mgmt., 392 Mass. 681, 686 (1984) (contract provision governing extra work procedures required written notice containing a statement of itemized work).

3. A claim, in the context applicable here, is defined as: "a demand of a right or supposed right, . . . a calling on another for something due or supposed to be due," also as "a demand for compensation, benefits, or payment . . . ."