United States District Court, D. Massachusetts
ABC SOILS, INC. and MARCIA BERGER, Plaintiffs,
DRS POWER TECHNOLOGY, INC. Defendant.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION TO DISMISS
GAIL DEIN, UNITED STATES MAGISTRATE JUDGE
ABC Soils, Inc. (“ABC”) and Marcia Berger brought
this action against DRS Power Technology, Inc.
(“DRS”), asserting claims relating to a contract
for the excavation and environmental evaluation of a project
site. DRS, a defense contractor for the United States Navy,
hired ABC as a subcontractor to excavate the site in
preparation for the installation of a tank for the Navy. ABC
allegedly ran into unforeseen difficulties during the
excavation that dramatically increased project costs, but was
assured by DRS that ABC would be paid for the additional
expense. At the conclusion of the project, the parties were
unable to reach an agreement as to the proper amount owed.
ABC filed suit on August 4, 2018, asserting a claim under
Mass. Gen. Laws ch. 93A (“ch. 93A”) (Count I), a
claim for breach of contract (Count II), and a claim for
negligent infliction of emotional distress
(“NIED”) (Count III).
matter is presently before the court on the
“Defendant's Motion to Dismiss” (Docket No.
6), wherein the defendant asserts that that the
plaintiffs' ch. 93A claim and NIED claim must be
dismissed. For the reasons detailed herein, this
court concludes that ABC has failed to make out a claim under
Mass. Gen. Laws. ch. 93A or a claim for negligent infliction
of emotional distress. Therefore, DRS's Motion to Dismiss
is ALLOWED as to Counts I and III of the plaintiffs'
STATEMENT OF FACTS
court summarizes the facts as alleged in the plaintiffs'
Complaint, with additional uncontested facts where noted.
Marcia Berger is the president of ABC, an environmental and
excavation company headquartered in Massachusetts. (Docket
No. 1 (“Complaint”) at 1). DRS is a major defense
contractor that works extensively with the United States
2014, DRS entered into a contract with ABC for ABC to install
a sub-floor tank pit at a DRS facility in Massachusetts and
to perform associated environmental clean-up. (Id.
¶¶ 5, 7). The purchase order for the transaction
specified that the upper budget for the project was $235, 000
and that the cost of all work performed within the scope of
the project was not to exceed $335, 000 without the approval
of DRS. (Id. ¶ 13, Ex. A). The purchase order
incorporated the terms of a task order that ABC had submitted
to DRS. (Id. ¶11). The task order indicated
that “Should the work extend beyond the scope of work
outlined herein, The Client [DRS] agrees to pay for all
additional expenses incurred by ABC Soils.”
(Id. ¶ 12).
the excavation, ABC discovered unanticipated environmental
contamination and subsurface debris. (Id. ¶
16). Specifically, the site was found to contain industrial
debris, such as oven parts and railroad tracks, as well as
concrete and other debris contaminated with polychlorinated
biphenyls (PCBs). (Id. ¶¶ 17, 19). As a
result, ABC was forced to engage in significant environmental
remediation and removal on the project site. (Id.
¶ 18). To properly treat the contaminated debris and
concrete, ABC had to power wash the debris before removing it
for off-site disposal. (Id. ¶ 20).
Additionally, ABC discovered that a concrete floor on site
was five feet thick and reinforced with rebar and steel mesh,
necessitating significant expense to remove it. (Id.
¶¶ 22, 23).
the excavation, DRS requested that the pit be made deeper and
larger, resulting in a 10.2% increase in volume from what had
originally been agreed upon. (Id. ¶ 33). At the
same time, DRS instructed ABC not to excavate to groundwater
level, which forced ABC to undertake additional procedures to
comply with the request. (Id. ¶ 34). ABC was
required to install special, custom-built concrete forms into
the pit due to the jagged and uneven nature of the
excavation. (Id. ¶ 36). ABC had to remove heavy
timbers from the excavation site as the concrete forms were
installed, which cost additional time and effort.
(Id. ¶ 37).
notified DRS of the cost increases associated with the PCB
contamination and extensive debris. (Id. ¶ 26).
DRS employees were also on site daily to witness the progress
of the excavation. (Id. ¶ 27). A project
manager for DRS assured ABC that ABC would be compensated for
the additional work. (Id. ¶ 28). Officers for
the United States Navy also surveyed the project site and
pressured ABC to finish the project. (Id. ¶
result of the unexpected subsurface conditions, ABC incurred
expenses well in excess of original cost estimates for the
project. (See id. ¶¶ 38-39). DRS has
allegedly refused to fully compensate ABC for these
additional costs, despite its earlier promise. (See
id. ¶ 44). At one point, negotiations as to the
amount due to ABC were ongoing, but stalled after a large
staff reorganization at DRS. (Id. ¶ 43). To
date, DRS has paid ABC $175, 000. (Id. ¶ 42).
The plaintiffs allege that DRS owes ABC an additional $275,
941.97 plus interest. (Id. ¶ 45). DRS offered
to settle the parties' payment dispute for $121, 520, but
ABC rejected the offer as insufficient and significantly less
than what was contractually owed. (Id. ¶ 46).
result of DRS's unwillingness to pay what ABC believes it
is owed, ABC was forced to cut back on expenses and reduce
its staff. (Id. ¶ 47). ABC lost a key employee
who took approximately $500, 000 in business with him when he
left. (Id. ¶ 50). ABC was also forced to borrow
money to make up for the loss in revenue. (Id.
¶ 49). Plaintiff Berger began working longer hours to
cover company overhead. (Id. ¶ 48). As a
result, Ms. Berger lost sleep, experienced anxiety and
headaches, and missed out on time with her family.
(Id. ¶ 51). Ms. Berger's son experienced
difficulties in school, further exacerbating her emotional
distress. (Id. ¶ 52). As a result of the
financial hardship on Ms. Berger, tensions arose in her
marriage and her spouse ultimately filed for divorce.
(Id. ¶ 53).
facts will be provided below where appropriate.