Opinion
No. 12–P–1002.
2013-08-5
SEAVER ELECTRIC, INC. v. J.F. WHITE CONTRACTING CO., INC., & others.
By the Court (COHEN, GRAINGER & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Seaver Electric, Inc. (Seaver), appeals from a summary judgment decision by a judge of the Superior Court, which held that Seaver was responsible for work it performed pursuant to a public works construction project. Finding in favor of the defendants and against Seaver, the judge determined that an engineer, whom Seaver agreed would resolve disputes regarding project responsibilities, acted within his legal authority when he found that Seaver was solely responsible for the disputed work. We affirm.
Background. In 2000, the Massachusetts Water Resources Authority (MWRA) solicited bids for a public works construction project: the Braintree–Weymouth intermediate pump station and headworks (the project). Stone & Webster Civil and Transportation Services, Inc. (S & W),
was retained by MWRA to design, draft, and interpret plans and specifications for the project. Metcalf & Eddy, Inc. (M & E), entered into a subcontract with S & W to design and prepare plans and specifications for the project, which MWRA would use to solicit bids. J.F. White Contracting Co., Inc. (J.F. White), was named general contractor for the project and was assigned MWRA contract number 5316 (the contract).
Through bankruptcy proceedings, Stone & Webster Civil and Transportation Services, Inc., became Stone & Webster Massachusetts, Inc., with the Shaw Group, Inc., as guarantor and successor in interest.
Both Seaver and J.F. White submitted bids for the electrical work required for the project. Seaver's bid was lower, and MWRA subsequently determined that Seaver was qualified to perform the work. Seaver then entered into a subcontract (the subcontract) with J.F. White to perform division 16 electrical work, as depicted in division 16 specifications and on drawings S–1 and E–1 through E–89.
Travelers Casualty Insurance Company of America, on behalf of J .F. White, partially financed labor and materials for the contract.
The parties agree that Seaver was not responsible for work in divisions 11, 12, 14, or 15.
The contract, as prepared by S & W and M & E, contained sixteen divisions that allocated performance responsibilities to different subtrades.
Over the course of Seaver's performance under the subcontract, fifteen disputes arose as to whether “the purchase and installation of controls, control wiring and conduit” was within division 16 responsibilities, or whether that work was the responsibility of other divisions. Seaver disputed its responsibility for the work and sought clarification from J.F. White, who determined that the work was Seaver's responsibility. J.F. White then directed Seaver to perform the work. Seaver performed the work under protest and subsequently, pursuant to the contract's claims resolution process, submitted claims to J.F. White disputing its responsibility for the work. J.F. White grouped the claims into seven categories and submitted them to MWRA for determination. MWRA, in accordance with the contract and pursuant to G.L. c. 30, § 39J, assigned engineer Kevin F. O'Brien to review the claims and render a final decision. O'Brien determined in seven separate decisions that Seaver was responsible for all of the disputed work.
Seaver filed a complaint in Superior Court against the defendants for various statutory, contractual, and tort-related offenses. The parties moved for summary judgment. In a detailed memorandum, a judge granted the defendants' motions and allowed summary judgment in their favor.
Discussion. We agree with the judge that “Seaver's claims all stem from O'Brien's denial of the [claims] on the grounds that the disputed work was required under the specifications of the Subcontract.” Thus, we turn first to whether the judge erred in upholding O'Brien's decisions, which we review de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007).
The contract required the submission of all claims to an MWRA engineer and further provided that the “[e]ngineer's determination shall be final, conclusive and binding on the Contractor subject to the provisions of [G.L. c.] 30, [§ ] 39J.” In accordance with § 39J, O'Brien's decisions will be upheld providing he did “not act in bad faith, fraudulently, arbitrarily, capriciously, or outside the scope of ... his authority.” Fontaine Bros. v. Springfield, 35 Mass.App.Ct. 155, 158 (1993). O'Brien's decisions, Seaver argues, were arbitrary and capricious because he failed to adequately consider, and in some instances ignored, the contract plans, specifications, and drawings relative to the division 16 responsibilities at issue.
Seaver, in agreeing to the contract terms, authorized O'Brien to render a “final,” “conclusive,” and “binding” decision on potential disputes. Thus, O'Brien was empowered to interpret the drawings and specifications, resolve contract ambiguities, and determine division responsibilities. O'Brien thoroughly reviewed both parties' arguments. All of the parties' positions, when combined, fully outline the relevant division specifications and drawings necessary for O'Brien to determine Seaver's responsibilities under division 16.
After a review of O'Brien's decisions, we conclude that his “decision[s were] plausible and cannot be characterized as having no rational basis. The decision [s], therefore, [were] not arbitrary and capricious, and there was no error of law.”
Ostrow Elec. Co. v. J.L. Marshall & Sons, Inc., 59 Mass.App.Ct. 816, 822 (2003). Additionally, as Seaver already performed the work and its claims are compensatory in nature, its argument with respect to the timeliness of O'Brien's decisions is without merit. See Henley–Lundgren Co. v. Commonwealth, 27 Mass.App.Ct. 1195, 1197 (1989) (“thirty-day approval requirement of § 39P does not apply to claims for payment”).
Although Seaver makes additional arguments regarding the procedural aspects of O'Brien's decisions, we need not address those issues as O'Brien also denied Seaver's claims on their merits.
Finally, because we determine that O'Brien's decisions were in accordance with § 39J, we need not address Seaver's other arguments on appeal.
Judgment affirmed.