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The Middlesex Corporation, Inc. v. Fay, Spofford & Thorndike, Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

January 28, 2019


          File Date: January 30, 2019


          Mitchell H. Kaplan, Justice of the Superior Court


          This plaintiff, The Middlesex Corporation, Inc., (Middlesex) was the general contractor on a project for the design/construction and rehabilitation of the Kens Burns Bridge Route 9 over Lake Quinsigamond (the Project). The defendant Fay, Spofford & Thorndike, Inc. (FST) is an engineering firm. FST entered into a Teaming Agreement with Middlesex pursuant to which FST prepared designs and drawings for the Project to be submitted by Middlesex to the Massachusetts Department of Transportation (the DOT) as part of its response to the Request for Proposal (RFP) for a contractor to perform the project. Middlesex also used the designs and drawings to estimate the costs that it would incur in performing the work, in particular the quantity of steel required, and therefore the contract amount that it would include in its response to the RFP. In this action, Middlesex alleges that FST performed its work negligently, i.e., not with the necessary skill and care of a professional engineer performing this type of work, with the result that Middlesex underestimated the cost of the steel necessary to complete the work by approximately $ 4 million. Middlesex also alleges that TMC was aware that the drawings that it submitted to Middlesex were improperly prepared and therefore it knew that Middlesex would underestimate the steel costs in its response to the RFP, but nonetheless represented that the drawings were "conservatively" prepared and further costs savings might be achieved with respect to the steel required to complete the Project.


          Based upon those allegations, Middlesex has asserted claims against FST sounding in contract, breach of the implied covenant of good faith and fair dealing, negligence, misrepresentation, fraud, and a violation of Chapter 93A.


          FST has moved for summary judgment dismissing all claims other than the negligence claim. For the reasons that follow, the motion is DENIED except with respect to the claim for breach of the implied covenant.


          As will be explained, the summary judgment motion does not require an in depth consideration of the evidence developed in the summary judgment record concerning the nature and quality of FST’s design for the steel supporting the bridge and the roadway.

          The Contract Claims

          At the hearing on this motion, Middlesex made very clear, if it was not already clear in its papers, that its case is premised upon its contention that the drawings that FST sent to it on January 20, 2012 were not prepared in accordance with good engineering practice and depicted a design that was later changed to be more robust, but caused Middlesex to underestimate the quantity of steel that would be required for construction, and this underestimate resulted in a reduction of its profit on the Project of nearly $ 4 million. In fact, Middlesex asserts that the design documents that FST delivered to it on February 9, 2012, the day before the response to the RFP had to be submitted to the DOT, were different from the January 20th design documents and required additional steel, but FST did not advise Middlesex of these changes and Middlesex was unaware of them until weeks after the response to the RFP had been submitted.

          Prior to February 9th, the DOT sent bidders an addendum number 5 to the bridge design which may have resulted in an increase in the steel required, and after the Project was awarded to Middlesex, DOT may have required additional design modifications. However, Middlesex has expressly stated that its claims are based on alleged shortcomings in the January 20th design documents. According to Middlesex, the $ 4 million underestimation arose because of a failure of proper engineering in the application of the information then available to all bidders and not subsequent changes required by later developments in the Project. Whether all or any of the $ 4 million increase in the cost of steel for the Project was the result of a failure in the January 20th design documents or later design changes initiated or required by the DOT, is a question of fact that cannot be resolved at summary judgment. Further, FST does not argue that it can.

         Rather, as to the breach of contract claims, FST maintains that they must be dismissed because the gist of this claim is for professional negligence not breach of contract. In support of this position, FST cites Massachusetts Housing Opportunities Corp. v. Whitman & Bingham Associates, P.C.,83 Mass.App.Ct. 325, 330 (2013) (Whitman) and similar cases in which the court had to determine whether the three-year statute of limitations for tort actions applied to a professional malpractice claim or the six-year period applicable to contract claims. Compare G.L.c. 260, § § 2 and 2B. That is not the issue here. There is no argument that these claims were not timely filed under either statute. In this case, two sophisticated parties entered into a carefully crafted contract which they called the "Teaming Agreement." While the standard to be applied in determining whether FST’s design work breached the Teaming Agreement is the same as whether it was professionally negligent— whether the work was performed in accordance with the standard of care applicable to engineers engaged to design the structural support of a ...

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