Appellate Cases

John J. Costa v. Brait Builders Corporation & another, 463 Mass. 65; 972 N.E.2d 44908/01/2012 Posted By: Corwin & Corwin LLP
Subcontract provision purporting to waive payment bond rights on a public project is unenforceable as against public policy.

Trace Construction, Inc. v. Dana Barros Sports Complex LLC et al (and five companion cases), 459 Mass. 346 (2011)09/29/2011 Posted By: Corwin & Corwin LLP

W.D. Fowler, Inc. v. Brait Builders Corporation & another, 80 Mass. App. Ct. 1107; 954 N.E.2d 7509/28/2011 Posted By: Corwin & Corwin LLP

Trustees of the Sheet Metal Workers? Local Union No. 17, Insurance and Annuity Funds & others v. United States Fire Insurance Company , 73 Mass. App. Ct. 1117; 899 N.E.2d 91901/27/2009 Posted By: Corwin & Corwin LLP

Richard J. Madigan, Trustee v. Trace Construction, Inc., & another12/20/2007 Posted By: Corwin & Corwin LLP
Summary discharge of mechanic’s lien under c. 254, 15 denied where disputed material facts existed in dispute between subcontractor, general contractor and owner.

N.B. Kenney Company, Inc. vs. National Union Fire Insurance Company of Pittsburgh, PA; Town of Ipswich, third-party defendant11/27/2007 Posted By: Corwin & Corwin LLP
A c. 149, 29 payment bond claim is timely when court action is filed one year after claimant completes its subcontract work.

Associated Subcontractors of Massachusetts, Inc. v. University of Massachusetts Bldg. Authority07/07/2004 Posted By: Corwin & Corwin LLP
University of Massachusetts Building Authority enabling act exempted the Authority from application of c. 149, 44A-H bidding provisions where at least 50 percent of building funds were from non-governmental source.

C&H Masonry, Inc. v. George Gould Trustee Of Nagog Knoll Realty Trust, Rose Gould, Trustee Of Nagog Knoll Realty Trust and Donelan’s Supermarkets, Inc.03/15/2004 Posted By: Corwin & Corwin LLP
Subcontractor could only lien the leasehold interest where lessee entered into contract with general contractor, and subcontractor’s lien had no value since general contractor abandoned project; and there was nothing due or to become due at the time the notice of contract was filed.

Edward F. Zaniboni d/b/a Zander Corporation v. J.S. Luiz, Third, Inc. and United States Fidelity & Guaranty Company, 60 Mass. App. Ct. 111012/30/2003 Posted By: Corwin & Corwin LLP
General contractor’s withholding of sums admittedly due subcontractors in an effort to obtain an unfair advantage is a violation of c. 93A.

Ostrow Electrical Co. v. J.L. Marshall & Sons, Inc., 59 Mass. App. Ct. 81611/05/2003 Posted By: Corwin & Corwin LLP
Architect’s decision on public works project was neither arbitrary nor capricious and was not in bad faith.

Siemens Building Technologies, Inc. V. Division of Capital Asset Management, 439 Mass. 75907/16/2003 Posted By: Corwin & Corwin LLP
Under M.G.L. c. 149, 4(A)-(H), prospective sub-subcontractor who was found unsatisfactory by awarding authority had no right to a sub-subcontract.

J.C. Higgins Company, Inc. V. Bond Bros., Inc., 58 Mass. App. Ct. 53707/10/2003 Posted By: Corwin & Corwin LLP
Subcontractor entitled to interest pursuant to M.G.L. c. 231, 6C (12%) on disputed amount recovered from general contractor.

Drywall Systems, Inc. v. ZVI Construction Co., Inc., 435 Mass. 66401/23/2002 Posted By: Corwin & Corwin LLP
On further appellate review, the Supreme Judicial Court ruled that arbitrators, acting under a broad arbitration agreement, had the power to award a subcontractor both multiple damages and legal fees under c. 93A,11 against a general contractor who acted unfairly.

Drywall Systems, Inc. v. ZVI Construction Co., Inc., 51 Mass. App. Ct. 35304/17/2001 Posted By: Corwin & Corwin LLP
Arbitrators have the power to award a subcontractor treble damages under c. 93A, 11 for unfair and deceptive acts of the general contractor, but not legal fees.

Drywall Systems, Inc. Vs. ZVI Construction Co., Inc., 51 Mass. App. Ct. 353 (2001)04/17/2001 Posted By: Corwin & Corwin LLP
An arbitration panel resolved a construction contract dispute in favor of the plaintiff (Drywall) with an award that included treble damages and attorney’s fees under G. L. c. 93A, 11. In the course of addressing the parties’ claims under G. L. c. 251, a Superior Court judge allowed a motion for partial summary judgment filed by the defendant (ZVI), concluding that the arbitrators exceeded their authority by awarding multiple damages and attorney’s fees. A judgment was entered vacating the arbitration award to the extent that it allowed c. 93A damages and fees, but otherwise confirming the award to Drywall in the amount of $447,365, plus interest, and arbitration costs. Both parties appeal. Drywall seeks to restore the award of multiple damages and attorney’s fees, and ZVI claims that the underlying award should not have been confirmed, citing evidentiary errors by the arbitrators.

Drywall Systems, Inc. V. Zvi Construction Co., Inc., 51 Mass. App. Ct. 353`04/17/2001 Posted By: Corwin & Corwin LLP
Civil actions commenced in the Superior Court Department on March 19, 1997, and June 12, 1997, respectively.

Dominic Gentile Painting Co., Inc. v. The Aulson Co., Inc., 2000 Mass. App. Div. 1901/17/2000 Posted By: Corwin & Corwin LLP
Subcontract not entitled to additional compensation since claimed extra work was required by subcontract.

John W. Egan Co., Inc. v. Major Construction Management Corp., 46 Mass. App. Ct. 636 (1999)04/21/1999 Posted By: Corwin & Corwin LLP
Massachusetts Turnpike Authority entered into a contract with Major Construction Management Corporation (Major Construction), as general contractor, for leak repair and associated work at four ventilation shafts of the Sumner and Callahan Tunnels. Major Construction subcontracted a part of the work — painting, glazing and lead-based coating removal — to the plaintiff John W. Egan Company, Inc. (Egan), for the contract price of $68,720. As required by the payment bond statute, G. L. c. 149, Sect. 29, Major Construction, as principal, and Firemen’s Insurance Company of Newark, New Jersey (Firemen’s Insurance), as surety, executed a payment bond to secure the payments for labor and materials performed or furnished in carrying out the general contract.

J.P. Construction Co., Inc. vs. Stateside Builders, Inc., & others, 45 Mass. App. Ct. 92009/17/1998 Posted By: Corwin & Corwin LLP
This is an appeal from an award of attorney’s fees pursuant to G. L. c. 149, s. 29. The plaintiff, J.P. Construction Co. (J.P.), was a masonry subcontractor on a public building project for the Somerville Housing Authority.

Acme Plastering Co., Inc. v. Boston Housing Authority, 25 Mass. App. Ct. 98504/13/1998 Posted By: Corwin & Corwin LLP
Damages, Breach of contract. Interest. Practice, Civil, Appeal. Appeals Court, Rehearing, Further appellate review by Supreme Judicial Court.

Admiral Drywall, Inc. vs. Cullen, 56 F.3d 4 (1st Cir. 1995)06/08/1995 Posted By: Corwin & Corwin LLP

East Coast Steel Erectors, Inc. vs. Phillip K. Ciolfi, Trustee, 417 Mass. 60204/27/1994 Posted By: Corwin & Corwin LLP

Norfolk Electric, Inc., & others vs. Fall River Housing Authority, 417 Mass. 20703/07/1994 Posted By: Corwin & Corwin LLP
In an action seeking a declaration under G. L. c. 231A that the defendant housing authority was bound to follow the Commonwealth’s competitive bidding laws governing the construction of public buildings in awarding a contract for the renovation of an existing low income housing development, this court determined that declaratory relief was appropriate notwithstanding the plaintiffs’ failure to avail themselves of the administrative review procedure afforded by G. L. c. 149, Section 44H.

PDM Mechanical Contractors, Inc. vs. Suffolk Construction Company, Inc., & another, 35 Mass. App. Ct. 22808/25/1993 Posted By: Corwin & Corwin LLP
In an action in which counterclaims for breach of contract were asserted, where the jury found the plaintiff in breach of contract, the judge correctly dismissed the plaintiff’s claim for contract damages and entered judgment on the plaintiff’s claim in quantum meruit for the amount determined by the jury to be the fair value of materials and labor provided by the plaintiff.

Fall River Housing Authority vs. H. V. Collins Company; Cape Cod Lath & Plaster, Inc., 414 Mass. 1012/23/1992 Posted By: Corwin & Corwin LLP
Neither the provisions of the contract between the general contractor and one of the subcontractors on a construction project, nor the circumstances of the relationship between the parties, gave rise to any implied contractual right of indemnity requiring the subcontractor to indemnify the general contractor for repair work required after the project was completed; consequently, the general contractor’s third-party claim against the subcontractor was one for simple breach of contract and was barred by the applicable six-year statute of limitations, G. L. c. 260, Section 2.

James L. Mccoy, Administrator of the Electrical Workers Trust Funds vs. Massachusetts Institute of Technology, 950 F.2d 13 (1st Cir. 1991)11/19/1991 Posted By: Corwin & Corwin LLP

Empire Masonry Corp. vs. Town of Franklin & Another, 28 Mass. App. Ct. 70706/22/1990 Posted By: Corwin & Corwin LLP
A general contractor and a public authority awarding it a construction contract under G. L. c. 149, Sections 44A-44H, are bound to apply the sub-bid substitution procedures prescribed in G. L. c. 149, Section 44F (4) (c), notwithstanding the fact that the low sub-bidder withdraws its sub-bid after execution of the general contract; moreover, the general contractor is not required by Section 44F (4) (c) to obtain executed subcontracts (with the sub-bidders the contractor intends to use) prior to the execution of the general contract.

Parties: Plymouth-Carver Regional School District vs. J. Farmer & Co., Inc., & another, 407 Mass. 100605/17/1990 Posted By: Corwin & Corwin LLP
The defendants appeal from a decision of the Superior Court denying their motions to confirm an arbitrator’s award and granting the plaintiff’s motion to vacate that award. The defendants assert that the judge erred in substituting her judgment for that of the arbitrator in the interpretation of a provision in a contract between Farmer and Marden. We allowed Farmer’s application for direct appellate review. We agree with the defendants. We reverse and remand to the Superior Court for confirmation of the arbitrator’s award.

Danca Corporation Vs. Raytheon Company & others, 28 Mass. App. Ct. 94202/26/1990 Posted By: Corwin & Corwin LLP

Peabody Construction Co., Inc. vs. City of Boston & another, 28 Mass. App. Ct. 10011/27/1989 Posted By: Corwin & Corwin LLP
The city of Boston had discretion under G. L. c. 149, Sections 44A-44J, to reject a construction contract bid that did not comply with nonstatutory requirements imposed by the city’s bidding documents, with the result that a Superior Court judge could properly have concluded, in denying a request for a preliminary injunction, that the rejected bidder had not demonstrated either a likelihood of success on the merits or a substantial risk of irreparable harm.

Lusalon, Inc. vs. The Hartford Accident and Indemnity Company & others, 400 Mass. 76708/17/1987 Posted By: Corwin & Corwin LLP

B. J. Harland Electrical Co., Inc. Vs. Granger Brothers, Inc., 24 Mass. App. Ct. 50607/21/1987 Posted By: Corwin & Corwin LLP

J.F. White Contracting Co. & another vs. Department of Public Works., 24 Mass. App. Ct. 93206/05/1987 Posted By: Corwin & Corwin LLP

Lusalon, Inc. vs. The Hartford Accident and Indemnity Company & others, 23 Mass. App. Ct. 90310/31/1986 Posted By: Corwin & Corwin LLP

Acme Plastering Co. v. Boston Housing Authority, 21 Mass. App. Ct. 66903/11/1986 Posted By: Corwin & Corwin LLP

Chicopee Concrete Service, Inc. Vs. Hart Engineering Co., 20 Mass. App. Ct. 31507/03/1985 Posted By: Corwin & Corwin LLP

Department of Labor and Industries & Another vs. Boston Water and Sewer Commission & Another, 18 Mass. App. Ct. 62110/04/1984 Posted By: Corwin & Corwin LLP

The Modern Continental Construction Co., Inc. vs. City of Lowell & another, 391 Mass. 82905/14/1984 Posted By: Corwin & Corwin LLP
A bidder on a public construction project had standing to challenge the bidding procedures followed by the awarding authority, even though the bidder failed to show that it would have received the contract but for the authority’s failure to comply with G. L. c. 149, Sections 44A-44H.

Joseph A. Fortin Construction, Inc., & another vs. Massachusetts Housing Finance Agency & Others, 17 Mass. App. Ct. 91111/09/1983 Posted By: Corwin & Corwin LLP

Consolidated Petroleum Corporation vs. Robert E. Golosov, 14 Mass. App. Ct. 103111/29/1982 Posted By: Corwin & Corwin LLP

J.J. Finn Electrical Service, Inc. v. P&H General Contractors, Inc., 13 Mass. App. Ct. 973 (1982)03/09/1982 Posted By: Corwin & Corwin LLP
This is a claim brought by an electrical subcontractor (Finn) against the general contractor (P & H), and its surety (United States Fidelity and Guaranty Company), to collect monies allegedly unlawfully withheld under Finn’s subcontract to perform certain electrical work on the renovation of a public arena in Revere.

PDM Plumbing & Heating, Inc. vs. Fred J. Findlen & others, 13 Mass. App. Ct. 95002/17/1982 Posted By: Corwin & Corwin LLP
The single issue on appeal is whether in the circumstances presented here it was proper for the master to apply an arithmetic procedure known as the “Eichleay” method in computing the office overhead component of the damages incurred by a subcontractor.

J.J. Finn Electrical Service, Inc. vs. P & H General Contractors, Inc. & Another; Metropolitan District Commission, 13 Mass. App. Ct. 97303/09/1982 Posted By: Corwin & Corwin LLP
This is a claim brought by an electrical subcontractor (Finn) against the general contractor (P & H), and its surety (United States Fidelity and Guaranty Company), to collect monies allegedly unlawfully withheld under Finn’s subcontract to perform certain electrical work on the renovation of a public arena in Revere.

Armor Elevator Co., Inc. V. Secretary of Housing and Urban Development, 655 F.2d 19 (1st Cir. 1981)07/23/1981 Posted By: Corwin & Corwin LLP

John D. Ahern Co., Inc. vs. Trustees of Boston University, 12 Mass. App. Ct. 4706/08/1981 Posted By: Corwin & Corwin LLP
The owner of a construction project was not rendered liable for unpaid sums due certain subcontractors by its failure to advise the subcontractors that the payment bond requirement contained in the bid documents for the general contract had been waived where the subcontractors had the opportunity to review the bidding documents and the general contract knew or should have known from those documents that the owner could alter or waive the bond requirement and had waived it; a requirement by an owner, who invites bids from a contractor, that the contractor furnish a payment bond for the benefit of subcontractors, does not, in the absence of special circumstances, create either a contractual undertaking to the subcontractors or a representation to them that a payment bond will in fact be furnished. [49-51]

E. A. Berman Company Vs. City of Marlborough & Another, 11 Mass. App. Ct. 100904/22/1981 Posted By: Corwin & Corwin LLP
The plaintiff’s sub-bid on the plumbing work for the city’s new high school was based upon its hope that no-hub pipe would be approved as an item equal to the more expensive bell and spigot pipe described in the specifications. See G. L. c. 30, Section 39M(b)

Manganaro Brothers Inc. v. Gevyn Construction Corp., 610 F.2d 23 (1st Cir. 12/05/1979)12/05/1979 Posted By: Corwin & Corwin LLP
Aldrich, J. In 1967, Middlesex County, Commonwealth of Massachusetts, contracted with defendant Gevyn Construction Corporation, as general contractor, to build a courthouse. Defendant entered into a number of subcontracts, including one with plaintiff Manganaro Brothers, Inc.

John F. Miller Company, Inc. vs. George Fichera Construction Corporation & another., 7 Mass. App. Ct. 49405/03/1979 Posted By: Corwin & Corwin LLP
Where a plumbing subcontractor on a housing construction project refused to proceed with installation of a waste piping system as called for by the plans and specifications after the architect for the project refused to consent to installation of a substitute system that would have entailed fundamental changes in the design and system prescribed by the specifications, the subcontractor was liable in damages to the contractor for a two and one-half months’ delay in the job.

Floors, Incorporated vs. B. G. Danis of New England, Inc., 7 Mass. App. Ct. 35604/09/1979 Posted By: Corwin & Corwin LLP
Where a subcontractor brought suit against a prime contractor under G. L. c. 149, Section 29, on a subcontract containing a compulsory arbitration clause but stayed the action pending an arbitration award and subsequently moved to confirm the arbitration award within the context of the action under c. 149, Section 29, the subcontractor was not entitled to recover the legal fees attributable to the arbitration.

Manganaro Drywall, Inc. Vs. White Construction Co., Inc. & another, 372 Mass. 66106/02/1977 Posted By: Corwin & Corwin LLP
The allowance of reasonable legal fees to a successful claimant under G. L. c. 149, Section 29, but not to a successful defendant, does not violate the equal protection clause of the 14th Amendment to the United States Constitution.

George A. Fuller Co., Inc. Vs. Nelson J. Sanford & Sons, Inc. & others., 5 Mass. App. Ct. 80203/28/1977 Posted By: Corwin & Corwin LLP

Arthur B. Blackett & others v. Jerrold A. Olanoff, 371 Mass. 71401/13/1977 Posted By: Corwin & Corwin LLP
First National Insurance Co. vs. Lynn, 525 F.2d 1 (1st Cir. 11/04/1975)11/04/1975 Posted By: Corwin & Corwin LLP

Interstate Engineering Corp. Vs. City of Fitchburg & others, 367 Mass. 75105/16/1975 Posted By: Corwin & Corwin LLP
Where it appeared that between the opening of the filed sub-bids on a public works project of a city subject to G. L. c. 149, Sections 44A-44L, and the submission of the general bids it was arranged between a sub-bidder that had submitted a filed sub-bid for interior piping work and a prospective general bidder, to which the general contract was later awarded, that the sub-bidder would do exterior piping work, constituting a part of general contractor’s work and to be covered by item 1 of the general bid, at a price substantially below cost and that the general bidder in item 2 of its general bid would list the sub-bidder for the interior piping work at the price stated in its filed sub-bid, although that price was not the lowest filed for the interior piping work, it was held that under Section 44H such arrangement between the sub-bidder and the other two defendants are Limbach Company and Westcott Construction Corporation.

H. Piken & Co., Inc. vs. Planet Construction Corp. & another, 3 Mass. App. Ct. 24604/30/1975 Posted By: Corwin & Corwin LLP
In a bill in equity by a subcontractor seeking damages for various claims under its contract with a general contractor, it was error to award the subcontractor the cost of wage increases paid to its employees for work it was required to do after a lapse of two years from the start of construction where the contract contained no specific completion date and where there was no finding that the prolongation of the contractor’s performance beyond two years was unreasonable.

John H. Barrett, Inc. v. Joseph Rugo, 3 Mass. App. Ct. 72603/27/1975 Posted By: Corwin & Corwin LLP

Industrial Engineering & Metal Fabricators, Inc. vs. Fontaine Bros. & another; City of Peabody, 2 Mass. App. Ct. 69512/09/1974 Posted By: Corwin & Corwin LLP
In a suit in equity arising out of a construction contract, no question as to a “material fact” so as to preclude determination of the case under G. L. c. 231, Section 59, was raised by an affidavit that set forth opposing interpretations of the contract and suggested an inconsistency as to the order in which the parties depicted their opposing interpretations of the contract documents on certain plans prepared after the dispute arose.

Davis Associates, Inc., vs. Secretary, Department of Housing and Urban Development and Dover Housing Authority, 498 F.2d 38506/28/1974 Posted By: Corwin & Corwin LLP

Hardware Specialties, Inc. vs. Mishara Construction Company, Inc., 2 Mass. App. Ct. 27705/21/1974 Posted By: Corwin & Corwin LLP
A finding in an action by an auditor whose findings were not to be final lost its artificial legal force as prima facie evidence when evidence to the contrary was introduced at trial, but remained evidence there warranting a finding in accordance with it.

Metro Insulation Corp. vs. Robert Leventhal & others, 1 Mass. App. Ct. 21304/12/1973 Posted By: Corwin & Corwin LLP

Gaffny Plumbing and Heating Corp. vs. C. A. Batson Co.,1 Mass. App. Ct. 80201/18/1973 Posted By: Corwin & Corwin LLP

City of Worcester v. Park Construction Co., Inc., 361 Mass. 87904/05/1972 Posted By: Corwin & Corwin LLP

Commissioner of Labor and Industries Vs. Lawrence Housing Authority & Another, 358 Mass. 20208/12/1970 Posted By: Corwin & Corwin LLP

American Air Filter Company, Inc. vs. Innamorati Brothers, Inc. & another, 358 Mass. 14607/06/1970 Posted By: Corwin & Corwin LLP

Manganaro Drywall, Inc. vs. Penn-simon Construction Company & others, 357 Mass. 65306/12/1970 Posted By: Corwin & Corwin LLP

Limbach Company vs. George B. H. Macomber Company, 357 Mass. 47505/08/1970 Posted By: Corwin & Corwin LLP

Irving Kaufman & another Vs. Leith L. Leard & others, 356 Mass. 16306/05/1969 Posted By: Corwin & Corwin LLP
An architect engaged by the owner of a house for a remodeling thereof was a general agent of the owner for that purpose, and contractors hired by the architect for the work were not bound by a limitation of cost imposed by instructions of the owner to the architect in the absence of anything putting the contractors on notice of such limitation on the architect’s apparent authority.

Lincoln-Sudbury Regional School District vs. Brandt-Jordan Corp. Of New Bedford & another, 356 Mass. 11406/03/1969 Posted By: Corwin & Corwin LLP
An error by a selected sub-bidder on a public construction project that constitutes a “clerical or mechanical error” within the meaning of that term in G. L. c. 149, Section 44B (3), as amended through St. 1961, c. 604, Section 2, is limited to an error of copying, transference or transcription, including mistakes of arithmetical computation, which occur during the final stages of bid preparation.

A. J. Wolfe Company vs. Baltimore Contractors, Inc., 355 Mass. 36102/07/1969 Posted By: Corwin & Corwin LLP

Industrial Engineering & Metal Fabricators, Inc. & another vs. Poorvu Construction Co., Inc. & another, 354 Mass. 28705/07/1968 Posted By: Corwin & Corwin LLP

Lawrence Plate and Window Glass Co. vs. Varrasso Bros., Inc. & another, 353 Mass. 63102/06/1968 Posted By: Corwin & Corwin LLP

Philip Chiappisi & Others vs. Granger Contracting Co. Inc. & Another, 352 Mass. 17403/03/1967 Posted By: Corwin & Corwin LLP

Fred C. Mcclean Heating Supplies, Inc. vs. M. J. Walsh & Sons, Inc., 349 Mass. 48907/02/1965 Posted By: Corwin & Corwin LLP

Hampden Cornice Works, Inc. vs. Leo Spear Construction Co. Inc. & another, 348 Mass. 79804/02/1965 Posted By: Corwin & Corwin LLP

Fred C. Mcclean Heating Supplies, Inc. vs. School Building Commission of Springfield, 341 Mass. 32211/04/1960 Posted By: Corwin & Corwin LLP
A sub-bid for the heating and ventilating work on a public construction project, in which the sub-bidder was required to indicate a deductible sum for omitting certain work denoted “Alternate B,” was not “incomplete” and did not contain an “addition not called for” within G. L. c. 149, Section 44H.

Brisk Waterproofing Co., Inc. Vs. Director of the Division of Building Construction, 338 Mass. 78411/04/1958 Posted By: Corwin & Corwin LLP

Grande and Son, Inc. vs. School Housing Committee of North Reading & others, 334 Mass. 25206/01/1956 Posted By: Corwin & Corwin LLP