J. DâAMICO, INC.
MASSACHUSETTS WATER RESOURCES AUTHORITY et al.
Date: August 28, 2018
MEMORANDUM OF DECISION AND ORDER ON MASSACHUSETTS
WATER RESOURCES AUTHORITYâS SPECIAL MOTION TO
L. Sanders, Justice of the Superior Court
action arises out of the construction of a replacement water
main owned by the Massachusetts Water Resources Authority
(MWRA). Suit was originally brought by the general contractor
on the project, plaintiff DâAmico, Inc. I (DâAmico) seeking
declaratory relief with regard to its obligations on the
project. The MWRA asserted a counterclaim against DâAmico and
a third-party claim against Green International Affiliates,
Inc. (Green), the design engineer on the project. Greene
responded with its own claim for breach of contract,
contending (in essence) that the MWRA had sued it in breach
of a covenant not to sue. Now before the Court is the MWRAâs
Special Motion to Dismiss pursuant to G.L.C. 231, § 59H,
the so-called anti-SLAPP statute. This Court concludes that
Greenâs claim against the MWRA should indeed be dismissed,
but not because it is a SLAPP suit within the meaning of
G.L.c. 231, § 59H. Rather, this Court concludes that
Green simply fails to state a claim upon which relief may be
granted pursuant to Rule 12(b)(6), Mass.R.Civ.P. The motion
is therefore ALLOWED on that basis.
following is taken from the MWRAâs Third-Party Complaint and
from Greenâs Answer, in which Green asserts a Counterclaim
against the MWRA. For purposes of a 12(b)(6) motion, this
Court assumes the factual allegations in the Counterclaim to
be true. It relies on the Third-Party Complaint to the extent
that Green in its Answer admits to certain of its paragraphs.
The Court also relies on the underlying contractual documents
for the project, which are referenced in all the pleadings.
To the extent that relevant provisions are unambiguous, their
interpretation is for the Court to decide and therefore can
be construed in the context of a motion to dismiss.
project at issue concerns the rehabilitation of an existing
water main located in Waltham and Watertown (the Project).
The Project included "slip-lining" 5, 400 feet of a
High Density Polyethylene (HDPE) pipe into the existing water
main and replacement of another three hundred feet of HDPE
pipe between the slip-lined sections. In January 2011, the
MWRA awarded a contract to Green to provide professional
design and engineering services (the Design Contract). See
Exhibit A to the Affidavit of Ko Ishikura, P.E. On May 3,
2013, the MWRA awarded the Construction Contract to DâAmico,
who was responsible for performing all construction
activities for the Project. Work on the Project began shortly
the Projectâs initial stages, DâAmico was required to submit
shop drawings to the MWRA and Green pursuant Section 1.120 of
the Construction Contractâs General Conditions. Green
reviewed these shop drawings and requested additional
information and calculations from DâAmico; the work proceeded
without DâAmico providing this additional technical data.
After the Project was complete, a series of leaks occurred in
the pipe. After an investigation as to the cause, the MWRA
notified DâAmico that it considered these leaks to be a
systemic problem and made a formal demand on DâAmico and its
surety (third-party defendant Travelers Casualty and Surety
Company) to undertake repairs or bear the cost of corrective
action. It made a similar demand on Green. See Exhibit 3 to
Affidavit of Meghan McNamara. In a preemptive strike, DâAmico
instituted this lawsuit. In its Third-Party Complaint against
Green, the MWRA alleges that under Section 4 of the Design
Contract, Green was required to monitor the progress and
quality of the work and in particular verify that all
construction and materials were in accordance with the
contract documents. It alleges that Green failed to fulfill
these obligations-allegations which Green denies.
Answer to the Third-Party Complaint, Green asserts several
affirmative defenses, including the defense that the damages
for which the MWRA seeks are the responsibility of DâAmico,
not Green. It goes on to set forth various terms of the
Construction Contract between the MWRA and DâAmico regarding
DâAmicoâs contractual responsibilities. As to its
Counterclaim, Green alleges that the MWRA has breached the
Design Contract "by naming Green in the third-party
complaint, asserting Green is responsible for DâAmicoâs
deficient work, and taking an adversary position against
Green instead of cooperating with Green in the defense of the
meritless claim brought by DâAmico." See Â¶ 8 of
Counterclaim. It seeks damages for losses sustained by this
breach-presumably its attorneys fees and costs that it will
incur from being named a third-party defendant.
anti-SLAPP statute provides a procedural remedy for early
dismissal of lawsuits "brought primarily to chill the
valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances." 477
Harrison Ave., LLC v. Jace Boston, LLC, 477 Mass.
162, 167 (2017), quoting Duracraft v. Holmes Prods.
Corp., 427 Mass. 156, 161 (1998). This procedural remedy
is a special motion to dismiss, which allows a special movant
to seek dismissal of "civil claims, counterclaims, or
cross claims" based solely on its exercise of the right
of petition. See G.L.c. 231, § 59H. To prevail on this
motion, the special movant (here the MWRA) bears the initial
burden of showing, through pleadings and affidavits, that the
claims against it "are âbased onâ the petitioning
activities alone and have no substantial basis other than or
in addition to the petitioning activities."
Duracraft, 427 Mass. at 167-68. If the movant is
able to sustain that threshold burden, the motion may still
be defeated if the claim that is the target of the special
motion (here Greenâs Counterclaim) was not brought primarily
to chill the special movantâs legitimate exercise of its
right to petition. Blanchard v. Steward Carney
Hospital, 477 Mass. 141, 159-61 (2017). With these legal
principles in mind, this Court concludes that Greenâs
Counterclaim against the MWRA is not a SLAPP suit under the
statute. Rather, it appears to be based on a fundamental
misreading of the Design Contract.
Counterclaim purports to rely on certain provisions of the
Design Contract. That agreement includes an attachment
setting forth the Scope of Services that Green was to
provide. Paragraph 6 of the Counterclaim quotes from Section
3 of that attachment, pursuant to which Green disclaimed any
responsibility for certain acts and omissions of DâAmico.
Section 4 of that same attachment, however, outlines Greenâs
responsibilities, which include precisely the obligations
that the MWRA claims that Green breached. The Counterclaim
also quotes a portion of Section 7.1 of the Design Contract,
apparently interpreting certain language in that section to
constitute a covenant not to sue. It quite clearly is no such
thing. Rather, section 7.1 states:
The Consultant [Green] at its expense and with counsel
acceptable to the Authority [the MWRA] shall defend and shall
indemnify and hold harmless the Authority ... from and
against all claims, causes of action, suits, losses, damages
and expenses, including attorneys fees, arising out of or
resulting from negligent acts, errors or omissions or breach
of contractual duties to the Authority by the Consultant and
anyone employed by it (including subconsultants and their
employees) in performance of this Agreement.
language on which Green relies follows this but is only
selectively quoted in the Counterclaim. It states that:
The Authority [the MWRA] shall give the Consultant [Green]
prompt and timely notice of any claims threatened or made, or
suit instituted against it which could result in a claim for
indemnification hereunder, provided, however, that lack of
such notice shall not be a waiver of the Consultantâs
indemnification of the ...