March 8, 2017
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO
STRIKE THE EXPERT REPORT OF JACK GRANT
Mitchell H. Kaplan, Justice of the Superior Court.
case arises out of a subcontract between the plaintiff,
Turner Construction Company (Turner), and the defendant M.J.
Flaherty Company (Flaherty). Turner was the general
contractor on the construction of a 23-story commercial
building at 157 Berkeley Street and certain related
remodeling of an adjacent building for Liberty Mutual
Insurance Company (the Project). Flaherty entered into a
subcontract with Turner to perform the HVAC work on the
Project (the Subcontract). The initial value of the
Subcontract was $12, 462, 252. Turner brought this action
against Flaherty to recover damages that it alleges that it
suffered when Flaherty failed to complete its work on the
Project and Turner had to hire another subcontractor to
complete the HVAC work.
has asserted counterclaims against Turner. Some of these
claims are based on Turner's failure to pay Flaherty for
all of the work that it performed. Here, the amount in
dispute is complicated by the fact that in early 2013 several
sub-subcontractors and material suppliers to Flaherty were
not being paid and began to file notices of contract in
anticipation of asserting mechanics' liens on the
Project. In response, Turner entered into a series of
agreements with Flaherty pursuant to which it issued checks
to Flaherty for subcontracted work that were made jointly
payable to Flaherty and the vendors to insure that they were
being paid out of the sums Turner was disbursing to Flaherty.
however, also has alleged that as a result of the manner in
which Turner ran the Project, Flaherty was so adversely
affected that the value of Flaherty as a going concern was
adversely impacted and this resulted in a $6.4 million
reduction in Flaherty's " new worth." This is,
of course, a paradigm claim for consequential damages. This
claim is the subject of the motion now before the court.
would be an extraordinary understatement to say that this
case has a tortured procedural history. Turner has filed two
previous motions for summary judgment that the court was
unable to decide on their merits because they were premature
or otherwise not properly before the court. It is treating
this motion as a motion for partial summary judgment seeking
dismissal of so much of the counterclaims as assert claims
for consequential damages, and, to that extent, Turner's
motion for summary judgment is ALLOWED.
are only a few additional facts that need be recited in
connection with Flaherty's claim for consequential
typical of subcontracts for large, commercial building
projects, the Subcontract contained a clause eliminating
Flaherty's right to recover consequential damages.
Notwithstanding any term or provision herein to the contrary,
Subcontractor expressly waives and releases all claims or
rights to recover lost profit (except for profit on work
actually performed), recovery of overhead (including home
office overhead), and any other indirect damages, costs or
expenses in any way arising out of or related to the
Agreement, including the breach thereof by Contractor,
delays, charges, acceleration, loss of efficiency or
productivity disruptions and interference with the
performance of the work.
number of change orders were issued for the HVAC work which
increased the project price by something in excess of 20%.
Flaherty asserts, and for purposes of this motion it is
accepted as true, that Turner's project schedule was very
aggressive. Additionally, changes to the schedule and project
sequencing " negatively impacted . . . Flaherty's
manner and method of performance and this increased
Flaherty's costs" and made the project much more
difficult for Flaherty to perform.