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N-Tek Construction Services, Inc. v. Hartford Fire Ins. Co.

Appeals Court of Massachusetts, Essex

March 14, 2016

N-Tek Construction Services, Inc.
Hartford Fire Insurance Company

         Argued November 5, 2015.

         Civil action commenced in the Superior Court Department on November 18, 2010.

         After transfer within the Superior Court Department, the case was heard by Timothy Q. Feeley, J.

         Edward J. Quinlan for the plaintiff.

         John W. DiNicola, II, for the defendant.

         Present: Agnes, Sullivan, & Blake, JJ.


          [47 N.E.3d 436] Agnes, J.

          In this case we address the notice provision contained in G. L. c. 149, § 29, as amended by St. 1972, c. 774, § 5 (§ 29),[1] in [47 N.E.3d 437] the context of a $23.29 million publicly funded project to

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repair a bridge in Gloucester (project). In particular, we decide whether the electronic mail message (e-mail) notice given by the claimant, N-Tek Construction Services, Inc. (N-Tek), to the general contractor, SPS New England, Inc. (SPS), satisfied § 29. N-Tek contends that the Superior Court judge, who tried this case without a jury, erred in concluding that the e-mail sent to SPS by N-Tek's principal failed to satisfy the requirements of § 29. For the reasons that follow, we affirm.

         SPS, the general contractor, posted a payment bond from a surety, Hartford Fire Insurance Company (Hartford). N-Tek filed the underlying action, seeking recovery against SPS's bond pursuant to G. L. c. 149, § 29, based on its claim that it had not been fully paid for its work furnished to a subcontractor, Seaway Coatings, Inc. (Seaway). N-Tek sought to reach and apply the payment bond funds to satisfy outstanding invoices. Hartford denied liability. After a bench trial, the judge found that N-Tek did not provide sufficient written notice of its bond claim to SPS as required by § 29, and ordered judgment to enter for Hartford. On appeal, N-Tek argues that the judge misinterpreted § 29 by imposing an added requirement that the notice " include and communicate an intent to assert a claim against the [g]eneral [c]ontractor's" bond, based on Federal cases construing the Miller Act, 40 U.S.C. § § 3131-3134 (2002), the Federal analogue to § 29.[2]


          We summarize the facts found by the judge, supplemented by undisputed parts of the record.

         1. Project.

         On August 14, 2008, the Massachusetts Highway Department (department)[3] entered into a contract with SPS to

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perform repairs to the A. Andrew Piatt Bridge in Gloucester. Built in 1950, the four-lane deck bridge spans the Annisquam River and is a primary access way to the Cape Ann area. In turn, SPS engaged Seaway, a Maryland-based painting subcontractor, to install a platform to be used by all trades, and to clean and paint the bridge. Seaway and SPS executed two subcontracts, which had a total combined value of $5,765,360. At SPS's request, Seaway posted separate payment and performance [47 N.E.3d 438] bonds,[4] which were issued by its surety, First Sealord Surety, Inc. (First Sealord).[5]

         2. N-Tek's work for Seaway.

         In 2008, Joseph P. Toffoloni formed N-Tek, a Massachusetts firm, to provide construction management consultant (or project manager) services to out-of-State subcontractors, such as Seaway, whose business operations in the Commonwealth did not support having their employees act as an on-site manager or superintendent. Toffoloni was N-Tek's president and sole employee.[6] On October 6, 2008, Toffoloni sent a proposal to Seaway (October 6 proposal), offering his services as a project manager on the project.[7] For his compensation, Toffoloni proposed, in part, a base fee of $150 per hour, " plus reasonable expenses."

         N-Tek and Seaway did not enter into or otherwise bind themselves to a written contract of hire. Nor did Seaway agree, in any writing, to the terms and conditions of N-Tek's October 6 proposal.[8] Seaway engaged Toffoloni, albeit informally, to serve as a

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project manager, and fully paid N-Tek's first twenty-one invoices, for the period between October of 2008 and September 13, 2009. Those invoices represented $190,821 in total billings.

         3. Toffoloni's e-mail to SPS regarding unpaid work.

         Seaway's painting work, scheduled to start in May of 2009, stalled for various reasons, including the fact that certain preparatory steps, such as demolition and concrete repairs, had not been completed. Seaway experienced financial difficulties, initially in the summer of 2010 and thereafter, causing it to fall behind on payments to its suppliers and others. In the run-up to Seaway's financial troubles, Toffoloni sent the following e-mail on March 16, 2010 (March 16 e-mail) to Robert A. Naftoly, SPS's vice-president of project management:

" Hello Bob. Enclosed is the January 15, 2010 Statement to Seaway Coatings, Inc./Mr. Athanasios Koussouris for services through that date by N-Tek Construction Services, Inc. ...

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