N-Tek Construction Services, Inc.
Hartford Fire Insurance Company
November 5, 2015.
action commenced in the Superior Court Department on November
transfer within the Superior Court Department, the case was
heard by Timothy Q. Feeley, J.
J. Quinlan for the plaintiff.
DiNicola, II, for the defendant.
Agnes, Sullivan, & Blake, JJ.
N.E.3d 436] Agnes, J.
this case we address the notice provision contained in G. L.
c. 149, § 29, as amended by St. 1972, c. 774, § 5
(§ 29), in [47 N.E.3d 437] the context of a
$23.29 million publicly funded project to
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.
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.
summarize the facts found by the judge, supplemented by
undisputed parts of the record.
August 14, 2008, the Massachusetts Highway Department
(department) entered into a contract with SPS to
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, which were
issued by its surety, First Sealord Surety, Inc. (First
N-Tek's work for Seaway.
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. On October 6, 2008, Toffoloni sent a
proposal to Seaway (October 6 proposal), offering his
services as a project manager on the project. For his
compensation, Toffoloni proposed, in part, a base fee of $150
per hour, " plus reasonable expenses."
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. Seaway engaged Toffoloni, albeit
informally, to serve as a
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
Toffoloni's e-mail to SPS regarding unpaid
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
" 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,