Superior Court of Massachusetts, Suffolk, Business Litigation Session
Hillside FXF, LLC et al.
Premier Design Build Group, LLC et al No. 135614
December 1, 2016
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT PREMIER
DESIGN BUILD GROUP, LLC'S MOTION FOR SUMMARY JUDGMENT
AGAINST G. LOPES CONSTRUCTION, INC.
L. Sanders, Justice
case arises out of the construction of a FedEx facility in
Northborough, Massachusetts. Plaintiffs Hillside PXF, LLC
(Hillside) and Jones Development Company, LLC (Jones) filed
this action against defendants G. Lopes Construction, Inc.
(Lopes), Premier Design Build Group, LLC (Premier), and
Haley & Aldrich, Inc. (Haley) seeking to recover damages
relating to remedial work performed after the construction.
This Court has already denied motions for summary judgment
made by Haley and by Premier as to plaintiffs' claims
asserted against them. Now before this Court is Premier's
Motion for Summary Judgment as to Count VII of its Cross
Claim against defendant Lopes. Premier seeks a declaration
from this Court that its subcontract with Lopes contains a
valid and enforceable duty to indemnify and that Lopes is
obligated to indemnify, defend, and hold Premier harmless
from any errors or deficiencies related to the construction
project. After careful review of the parties'
submissions, this Court concludes that Premier's motion
must be DENIED as to Lopes' duty to indemnify
but ALLOWED as to its duty to defend.
relevant facts in the summary judgment record, viewed in the
light most favorable to the plaintiffs, are as follows.
Hillside and Jones engage in commercial development and
construction projects. On August 23, 2011, Hillside as the
owner/developer and Premier as the general contractor entered
into an agreement to construct a FedEx freight facility at
300 Bartlett Street, Northborough, Massachusetts (the
Project). Because the site was on a relatively steep slope, a
significant amount of cut and fill and excavation work was
required to prepare it for construction. The plaintiffs
retained Premier to perform this work. Premier in turn
retained Lopes as a subcontractor to perform demolition,
grading, and excavation for the Project. The defendant Haley
was retained by Premier to provide on-site monitoring of the
September 21, 2011, Lopes began removing trees at the Project
site, and excavation at the site continued through the fall.
Hillside authorized Premier to proceed with the foundation
installation in late December 2011, and footings and
foundations for the Project were installed shortly
thereafter. In February 2012, it was noticed that the walls
appeared to have shifted laterally. Ultimately, it was
determined that the foundations had settled and that this was
caused by improper fill work. There are disputes of fact as
to which entity--Premier, Lopes, or Haley--either alone or in
combination with each other, was responsible for the
foundation's failure. By the time the building was
stabilized and the site repaired, Hillside had spent more
than $3 million in remedial work.
motion relies on certain provisions in two separate
subcontracts it had with Lopes, one dated August 24, 2011 and
the other dated March 1, 2012 (the Subcontracts). The
Subcontracts have two clauses in each of them which can be
fairly characterized as indemnification provisions. The first
(Indemnification Provision #1) is as follows:
The Subcontractor [Lopes] shall indemnify and save harmless
the Owner [Hillside] and the Contractor [Premier] and their
officers, agents, servants and employees, from and against
any and all claims, demands, suits, proceedings, liabilities,
judgments, awards, losses, damages, costs and expenses,
including attorneys fees, on account of . . . damage to or
destruction of any property, directly or indirectly
arising out of, relating to or in connection with the
Work, whether or not due or claimed to be due in whole or in
part to the active, passive or concurrent negligence or fault
of the Subcontractor . . . and whether or not such
claims, demands, suits or proceedings are just, unjust,
groundless, false or fraudulent; and the Subcontractor shall
and does hereby assume and agrees to pay for the defense of
all such claims, demands, suits and proceedings . . . the
Subcontractor shall not be required to indemnify the
Contractor, his officers, agents, servants or employees
against any such damages occasioned solely by acts or
omissions of the contractor other than supervisory acts or
omissions of the Contractor in the work .
(Emphasis added.) The second (Indemnification Provision #2)
is part of the General Conditions of the Subcontracts and
provides in relevant part that:
Subcontractor shall indemnify and hold harmless PDBG . . .
Owner . . . and agents and employees of any of them (. . .
" Indemnified Parties") from and against claims,
damages, losses and expenses, including, but not limited to,
attorneys fees arising out of or resulting from (i)
performance or non-performance of the Work, (ii) breach
of obligations of Subcontractor under the Contract Documents
including, without limitation, defective Work . . . or (v)
any other act or omission with respect to the Work by
Subcontractor . . . resulting in . . . injury to or
destruction of property, or loss thereof.
(Emphasis added.) This same provision goes on to more
specifically describe the duty to defend:
Subcontractor hereby acknowledges and agrees that if any one
or more claims or actions are asserted against PDBG Parties
giving rise to a duty . . . [to] defend on the part of
Subcontractor pursuant to this Section, PDBG Parties shall
have the right to elect, in PDBG Parties' sole and
absolute discretion, whether to contest any one or more of
such claims or actions and Subcontractor shall be required to
perform the obligations of Subcontractor set forth above
regardless of whether PDBG Parties elect to contest such
claim(s). If PDBG Parties elect to contest any such claim(s),
PDBG Parties shall have the right to select PDBG Parties'
own counsel and control their defense and Subcontractor shall
bear the cost of employing such counsel . . .
Indemnification Provision #1 and Indemnification Provision #2
refer to " Work." The General Conditions define
" Work to include " all design, labor, materials,
skill, equipment, taxes, services, delivery charges,
supervision, administration, facilities, and field
measurement necessary to produce the construction required by
the Subcontract Agreement and other Contract Documents."
The term " Contract Documents" is also defined by
the Subcontracts and includes the Construction Agreement
between plaintiffs and Premier. Finally, the Subcontracts
state that they shall be construed in accordance with
Massachusetts law and their provisions shall be interpreted
where possible in a manner to sustain their legality and
and Jones filed this action October 28, 2013. By letter dated
December 27, 2013, Premier tendered its defense and
indemnification of this matter to Lopes. Counsel for Lopes
requested additional information, and on February 4, 2014,
Premier issued a more detailed amended tender of defense and
indemnity to Lopes. Thereafter, Lopes declined to defend and