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Bortolotti Construction, Inc. v. Bay State Contracting Co., Inc.

Appeals Court of Massachusetts

July 2, 2015

Bortolotti Construction, Inc.
Bay State Contracting Co., Inc. , & another [1] (and a companion case [2] )

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).


This appeal involves two cases stemming from a contract dispute between Bortolotti Construction, Inc. (Bortolotti), and Bay State Contracting Co., Inc. (Bay State). Following a consolidated, jury-waived trial, a judge of the Superior Court awarded Bortolotti payment in the amount of $63,169.45, plus $52,612.45 in attorney's fees and costs. Bay State and its surety appeal the judgments in Bortolotti's favor. We affirm.

Meaning of subcontract.

Whether a contract is ambiguous is a question of law. Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287, 877 N.E.2d 1258 (2007). " The objective is to 'construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose.'" Massachusetts Property Ins. Underwriting Assn. v. Wynn, 60 Mass.App.Ct. 824, 827, 806 N.E.2d 447 (2004), quoting from Gross v. Prudential Ins. Co. of Am., 48 Mass.App.Ct. 115, 119, 718 N.E.2d 383 (1999). " Where, however, the contract . . . has terms that are ambiguous, uncertain, or equivocal in meaning, the intent of the parties is a question of fact to be determined at trial." Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779, 761 N.E.2d 946 (2002).

Bay State was the general contractor on an elementary school construction project for the town of Eastham. Bortolotti was the winning bidder for a subcontract to perform excavation, drainage, and site preparation work for payment of $342,414. Claiming to have completed the work and all change orders, it sued Bay State to recover the balance owed. Bay State counterclaimed that Bortolotti failed to perform additional work valued at $429,081.[3]

As is evident, the principal dispute between the parties concerned the scope of work due to be completed by Bortolotti under the subcontract. Bortolotti asserts that it was required to perform only the tasks enumerated in paragraphs 2 through 28 of attachment " A," following any applicable technical specifications from the project manual listed in paragraph 1. Bay State contends that Bortolotti was required to perform the work described in all fifteen numbered project manual specifications listed both in paragraph 1 of the subcontract and in paragraph 1 of attachment " A" thereto.[4]

Considering the language in attachment " A," stating that Bortolotti is to " [f]urnish and install all work described under the following specifications and addendums" (emphasis added), and further considering the very general language used in the technical specifications, we agree with Bortolotti and the trial judge that the contract is ambiguous.

Although " an ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other's," Jefferson Ins. Co. v. Holyoke, 23 Mass.App.Ct. 472, 475, 503 N.E.2d 474 (1987), the " phraseology" used in the subcontract supported a " reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken." Indus Partners, LLC v. Intelligroup, Inc., 77 Mass.App.Ct. 793, 795, 934 N.E.2d 264 (2010) (citation omitted). As the trial judge found, a reasonable subcontractor could read the numbered items as specifying how the general contractor expected the work to be performed, " if any, all, or some of it was to be undertaken."

Construing the ambiguity against Bay State, see Boland v. George S. May Intl. Co., 81 Mass.App.Ct. 817, 827, 969 N.E.2d 166 (2012), the judge concluded, and we agree, that Bortolotti had no obligation to perform the additional work that Bay State claimed it was due.[5] The disputed work was outside Bortolotti's expertise and " far afield of the work that [it] undertook to do at the very beginning."

The fact that Bortolotti never bid on the work that Bay State contends it was supposed to perform further supports this conclusion. See Robert Indus., Inc. v. Spence, 362 Mass. 751, 753, 291 N.E.2d 407 (1973) (" facts and circumstances of the transaction, including the situation and relations of the parties" admissible for the purpose of " removing and explaining any uncertainty or ambiguity" in application of contract provisions).

Further indicative of the parties' intent is the second subcontract executed between Bortolotti and Bay State, in June, 2006, for construction of an athletic field. According to Bay State's interpretation of the first subcontract, Bortolotti was already obligated to perform " 02931 - Athletic Field Reconstruction." If this were true, there would have been no need to enter into a second subcontract for the very same work.

In light of all the facts and circumstances, we perceive no error in the construction of the subcontract ...

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