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 . . . ."