Superior Court of Massachusetts, Suffolk, Business Litigation Session
OMEGA DEMOLITION CORP.
WALSH CONSTRUCTION COMPANY et al.
Date: February 13, 2018
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTSâ
PARTIAL MOTION TO DISMISS
L. Sanders, Justice of the Superior Court
dispute arises out of a subcontract for bridge demolition
between Plaintiff Omega Demolition Corp. (Omega) and
Defendants Walsh Construction Company (Walsh) and
Walsh-McCourt JV1, (WMJV), a joint venture between Walsh and
Defendant McCourt Construction Company, Inc. (McCourt).
Omega, the subcontractor, alleges, among other things, that
Walsh and WMJV breached the subcontract by failing to furnish
so-called "shielding and containment" for Omegaâs
use in performing its demolition work. Walsh, WMJV, McCourt
and their sureties, Defendants Travelers Casualty and Surety
Company of America and Continental Casualty Company, now move
to dismiss those portions of Counts I through V which are
based on this allegation, arguing that it is clear from the
language of the subcontract that neither Walsh nor WMJV had
any obligation to provide shielding and containment for
Omega. This Court disagrees and concludes that the Motion
must be DENIED.
following is drawn from the allegations in the Complaint
together with the exhibits attached to it and documents
referenced therein. See Schaer v. Brandeis Univ.,
432 Mass. 474, 477 (2000); Waterson v. Page, 987
F.2d 1, 3-4 (1st Cir. 1993).
March 2013, the Massachusetts Department of Transportation
(MassDOT) awarded a general contract (the Primary Contract)
to WMJV, a joint venture between Walsh and McCourt, for a
project that involved the replacement of or improvements to
nine bridges and associated sections of I-95 between
Newburyport and Salisbury (the Project). Project
responsibilities were divided between Walsh and McCourt, with
Walsh responsible for the portion of the Project involving
the reconstruction of the John Greenleaf Whittier Bridge
which carries I-95 over the Merrimack River.
December 2013, Walsh, as agent and on behalf of WMJV, entered
into a Subcontract with Omega to perform work that included
the demolition of the Whittier Bridge and lead abatement. The
Subcontract consisted of a one page document to which several
exhibits were attached, including Exhibit A ("Terms and
Conditions") and Exhibit B ("Scope, Clarification,
Alternates and Unit Prices"). Article 1.2 of the
Subcontract, under the heading "Mutual
Obligations," states that:
Subcontractor assumes toward Contractor all of the
obligations, risks and responsibilities that the Contract by
the Contract Documents has assumed to the Owner, and the
Subcontractor is bound to the Contract by those obligations
in the same manner as the Contractor is bound to the Owner.
Subcontract also contains other references in the Primary
Contract. See e.g. Subcontract at pg. 1 (requiring Omega to
"certify that it is fully familiar with the Contract
Documents"); Exhibit A, Art. 1.1 (requiring Omega to
perform work "in strict accordance and full compliance
with the Contract Documents").
B of the Subcontract explicitly excluded from Omegaâs
responsibilities the obligation to provide "protective
shielding or netting." The Primary Contract, however,
required that WMJV use "shielding and containment"
in connection with bridge demolition. Consequently, Omega
assumed that Walsh would furnish the requisite shielding and
that it (Omega) would be able to place its workers on the
shielding to perform its abatement activities. Walsh did not
and this action ensued.
of a contract is a question of law for the Court. Cady v.
Marcella, 49 Mass.App.Ct. 334, 337-38 (2000). Whether a
contract is ambiguous is also a question of law. Eigerman
v. Putnam Invest, 450 Mass. 281, 287 (2007). When the
wording of a contract contains no ambiguity, the Court must
enforce it according to its terms. Freelander v. G.&K.
Realty Corp., 357 Mass. 512, 516 (1979). However, if the
language of the contract is ambiguous, there is a question of
fact that must be resolved by the fact finder. Trafton v.
Custeau, 338 Mass. 305, 307-08 (1959). Contract language
is ambiguous only where the "terms are inconsistent on
their face or where the phraseology can support reasonable
differences of opinion as to the meaning of words employed
and the obligations undertaken." Suffolk Constr.
Co., Inc. v. Lanco Scaffolding Co., Inc., 47
Mass.App.Ct. 726, 729 (1999) (internal quotes omitted). Here,
defendants contend that those portions of Counts I through V
based on Walshâs failure to furnish shielding and containment
must dismissed because the terms of the Subcontract do not
place that obligation on Walsh. This Court concludes that the
Subcontract, when read together with the Primary Contract, is
ambiguous on this point.
first argue that the Subcontractâs two integration clauses
prevented Omega from relying on any provision of the Primary
Contract that requires Walsh to provide shielding and
containment in connection with bridge demolition. The first
clause provided that:
By executing this Agreement, the Subcontractor certifies that
it is fully familiar with all terms of the Contract
Documents, the site conditions of the Project, and the
climatic and physical conditions under which the
Subcontractorâs Work is to be performed, and enters into this
Agreement based upon its investigation of all such ...