Construction Litigation

While our goal is always to minimize risk and achieve smooth and timely project delivery, there are times when risk turns into dispute. When that occurs, our team of construction litigators is adept at advising our clients through all phases of dispute resolution. We regularly appear in state and federal courts, in all forums of alternative dispute resolution, including mediation and arbitration, as well as before various regulatory and administrative hearing boards. We represent clients in a broad range of contract and extra-contractual claims. Our group has extensive experience in resolving disputes over construction terms addressing payment methods and procedures, scope of work, deadline and delay, termination and suspension, as well as insurance and warranty requirements. We regularly prosecute and defend mechanics lien claims, surety bond claims, delay claims, extended conditions claims, defective design or specification claims, wage and employment matters, and bid protests, among others.

Practice Chair

David L. Fine

David L. Fine
Partner

Representative Matters

  • Negotiated a favorable resolution for a general contractor in a multi-million dollar delay claim stemming from defective design documents and extended conditions in a multi-phased renovation and new construction of a hospital. The general contractor’s claim included a substantial pass-through claim by the mechanical subcontractor. The hospital brought a counterclaim alleging defective installation of concrete subflooring. The litigation involved claims, counterclaims and cross-claims by and between the owner hospital, its architect, the general contractor, and multiple subcontractors and suppliers.
  • Successfully prosecuted multi-million dollar claims for breach of contract and unfair business practices on behalf of a designer and builder of pollution control systems for power generation facilities.
  • Obtained a mechanics lien and successfully negotiated a settlement on behalf of a site subcontractor who was owed a substantial contract balance and change order amounts on a private project in which the general contractor had filed for bankruptcy protection.
  • Represented a general contractor and its surety in defending claims on a payment bond brought by a specialty concrete subcontractor on a public works project involving renovation and build out of a college dormitory. The general contractor had a number of defenses, including defective installation of underlayment and flooring surface and delay caused by the subcontractor’s lack of manpower.

Building on Lands Formerly Used as Railroad Right-of-Ways- An Amendment That May Simplify the Permitting Process

For the last forty-five (45) years, obtaining a permit to build any type of structure on any former railroad right-of-way in the Commonwealth of Massachusetts has been far from seamless. Massachusetts General Law c.40 §54A, enacted by the legislature in …

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MassDEP Working on a Drinking Water MCL for PFAS

Several weeks ago, I posted that the Massachusetts Department of Environmental Protection (MassDEP) proposed a new groundwater standard for PFAS contamination under the Massachusetts Contingency Plan regulations (310 CMR 40.0000).  Public comment on the proposed regulations remains open through July …

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Appearance of Bias Not Enough to Invalidate Appraisal – Unless the Contract Says Otherwise

When parties enter a contract involving an appraised value of real estate, they need eventual finality with respect to that appraised value, but they also want fairness in the appraisal process. In Buffalo-Water 1, LLC v. Fidelity Real Estate Company, …

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BREAKING: MassDEP Announces Proposed Revisions to the Massachusetts Contingency Plan, Including a Reportable Concentration for PFAS at 20 ppt

The Massachusetts Department of Environmental Protection (MassDEP) announced proposed revisions to the Massachusetts Contingency Plan (310 CMR 40.0000).  This begins a 3-month public comment period that will end July 19, 2019, and will include four public hearings. According to MassDEP, …

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EPA Issues Interpretive Statement: Groundwater Discharges are Not Subject to the Clean Water Act

In a not-so-stunning development, the EPA on Monday issued an Interpretive Statement putting to rest speculation on EPA’s position as to whether groundwater discharges are subject to federal jurisdiction under the Clean Water Act (CWA).  The answer:  “No.”  EPA’s 57-page …

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Third Party Beneficiary Rights in Construction Contracts

Last week the United States District Court in Massachusetts issued an important decision concerning third party beneficiary rights in construction contracts.  In Arco Ingenieros, S.A. de C.V. v. CDM International Inc., Civil Action No. 18-12348-PBS, a design-builder incurred damages due …

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Title Defect? Here’s How to Keep Your Deal on Track

You are under contract to sell a commercial or residential property and your attorney tells you two weeks prior to closing that the buyer’s title search has revealed a title defect. While there is a large array of issues that …

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Short-Term Rental Law Takes Effect July 1st

Governor Baker recently signed “An Act Regulating and Insuring Short-Term Rentals”, imposing new taxes, registration and inspection requirements, and other rules governing the short-term rental of homes and residential units through Airbnb, VRBO, and similar platforms. Overview: The new law …

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Recovery of Attorney’s Fees and Costs in Construction Disputes

When construction projects become construction disputes, contractors and suppliers start thinking about how to recover their attorney’s fees and other legal costs.  Massachusetts follows the “American Rule” for recovery of legal expenses that states each party must pay their own …

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Construction Insurance: Game of Risk

Construction work is risky by nature.  Common risks include natural disasters, inclement weather, flood or fire, accidents t hat cause property damage or bodily injury, and the failure of one or more parties to perform their designated responsibilities, resulting in …

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A Landfill Is Not a “Point Source” Under the Clean Water Act, So Says the 4th Circuit and D.Mass.

Two recent rulings address the issue of whether a landfill is a “point source” under the Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA), Sierra Club v. Virginia Electric et al and Toxics Action Center et al v. …

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The New Massachusetts Clean Energy Bill: Solar Advocates Left Waiting for the Next Installment

On July 31, 2018, the final day of its formal session, the Massachusetts legislature passed H. 4857, An Act to Advance Clean Energy, which Governor Baker signed into law on August 9. The bill represents several important steps forward in …

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