David L. Fine

David represents and counsels clients in the construction industry, including commercial, institutional and residential owners and developers, general contractors, construction managers, specialty subcontractors, suppliers and manufacturers. He represents clients in adverse proceedings such as litigation and arbitration, consulting regarding risk management, contract preparation and negotiation, and providing business advice. He is chair of the firm’s Construction Law Group, a diverse group comprised of attorneys specializing in construction litigation, corporate and real estate law, and labor and employment law.

David works closely with several national, regional and local trade organizations, and he often lectures and writes about topics pertinent to the construction industry, such as project delivery, due diligence and financing, contracts, teaming, indemnity and warranty concerns, insurance coverage, public procurement, bid protests, green building and solar, surety bond claims, mechanics’ liens, and construction industry dispute resolution methods and procedures. He is the president of the Home Builders and Remodelers Association of Central Massachusetts, and he lectures regularly on construction risk management issues on behalf of several trade and bar organizations. David is an active member of the ABA Forum on Construction Law, where he serves as a member of the Steering Committee for the Forum’s Subcontractors and Suppliers Division and as a liaison to the Special Programs & Education Committee.

David was named a Massachusetts “Super Lawyer" by Boston magazine and Law & Politics every year since 2017.  In 2013, 2014 and 2015, David was named a Massachusetts "Rising Star" by Boston magazine and Law & Politics.

Bar & Court Admissions

  • Massachusetts
  • Rhode Island
  • U.S. District Court for Massachusetts
  • U.S. District Court for Rhode Island
  • U.S. District Court for Connecticut
  • U.S. Court of Appeals for the First Circuit
  • U.S. Court of Appeals for the Third Circuit
  • U.S. Court of Appeals for the Federal Circuit
  • Suffolk University Law School JD, cum laude, Suffolk University Law Review member (2005)
  • University of Vermont BA (1999)
  • Successfully defended a leading national supplier of aggregates, asphalt, ready-mix concrete and construction and paving services against payment claims by an electrical contractor through trial in Rhode Island Superior Court
  • Negotiated and drafted hundreds of construction agreements for a variety of clients, ranging from standard form (“AIA”) documents prepared on behalf of several institutional clients, including for example local and regional colleges and universities, cities and towns, and national banking institutions, to HIC-compliant builder/remodeler agreements
  • Successfully defended a plastic molding manufacturer in a Section 28 claim brought by a former employee through trial in the Worcester Department of Industrial Accidents
  • Negotiated a successful resolution on behalf of a general contractor in a dispute with a hospital, architect and multiple subcontractors over delay and changed conditions in a multi-phased renovation and new construction hospital project
  • Prosecuted mechanics lien action on behalf of site contractor who was owed contract balance and change order amounts on a private project in which the general contractor filed for bankruptcy protection
  • Successfully represented former owners of sand and gravel and contract ready mix businesses in a dispute with the subsequent purchaser related to the receivable and warranty obligations contained in the sale documents
  • Obtained judgment in favor of a residential homeowner in a private arbitration proceeding against a roofing and restoration contractor for defective roofing and siding installation
  • Represented a general contractor on a Rhode Island public works project concerning renovation and build out of a college dormitory in a dispute with the owner and multiple subcontractors over payment and scope of work requirements
  • Obtained an arbitration award in favor of a site contractor and against a municipality for changed conditions and delay claims stemming from construction of public recreational fields and facilities
  • Represented regional steel contractor against claims that it breached a requirements lease agreement regarding crane rentals and other equipment
  • Successfully defended a general contractor in a bid protest against allegations of impropriety in the pre-qualification process
  • Represented regional roofing company in a claim against a former employee regarding breach of fiduciary duty and appropriation of trade secrets in operating a competing side business
  • Successfully represented several supply companies, including, among other, plumbing and mechanical, electrical and concrete, in various collection actions 
  • Represented the interests of the pension, annuity, health and apprenticeship trust funds of a local trade union
  • Represented a contractor defending a claim by the department of labor of failure to pay prevailing wages on a public works project

Publications/Presentations

  • "Legal Issues for Builders, Remodelers and Contractors," Home Builders Association, August 2019 (presenter)
  • "AIA Contract Workshop" Halfmoon Education, July 2019 (presenter)
  • "Revitalization of Worcester: An Insider's View of the CitySquare Project," Massachusetts Bar Association, June 2019 (moderator, presenter)
  • "Construction Risk Management," Home Builders Association, April 2019 (presenter)
  • "Minding the Gap: Avoiding Design Delegation Dangers," American Bar Association, September 2018 (webinar panelist)
  • "Construction Law Fundamentals," Home Builders Association, August 2018 (presenter)
  • "Legal Issues for Builders, Remodelers and Contractors,” Home Builders Association, March 2018 (presenter)
  • “Warranties, Guarantees, Decennial Liability, and Statutes of Limitation & Repose,” ABA Forum Midwinter National Meeting, January 2018 (presenter)
  • “The New AIA Documents: What’s New,” American Bar Association Forum on Construction Law, October 2017 (moderator)
  • "The 2017 A201 Deskbook," American Bar Association Book Publishing, September 2017 (author)
  • "Construction Contracts and Risk Management," Massachusetts Department of Housing and Community Development, September 2017 (presenter)
  • "Construction Contract Workshop," HalfMoon Education, Inc., April 2017 (presenter)
  • Quoted in “General Contractor Liable for Subcontractor’s ‘Loss of Productivity,’” Massachusetts Lawyers Weekly, April 2017
  • Construction Supervisors License ("CSL") Continuing Education Program, HBRA, December 2016 (presenter)
  • “Pretrial Procedures” Massachusetts District Court Civil Procedure Manual, MCLE, October 2016 (author)
  • “Examining Legal Issues and Disputes,” HalfMoon Education, Inc., May 2016 (presenter)
  • "Legal Issues for Contractors," Gould Construction Institute, Associated Builders and Contractors, Inc., March 2016, September 2015, April 2015, November 2014, March 2014 (presenter)
  • "Contracts and Risk Management," New England Alarm and Controls Council, Northeast Security Systems Contractor Expo, May 2015 (presenter)
  • "Subcontractors Teaming Agreements; What Should You be Worried About?," American Bar Association Forum on Construction Law, January 2015 (panelist)
  • "Construction Law Risk Management," Home Builders and Remodelers of Central Massachusetts, January 2015 (presenter)
  • “Protecting the Owner of the Project: Insurance and Bonding Issues in Construction,” HalfMoon Education, Inc., August 2014 (presenter)
  • "Construction Subcontracting, A Comprehensive, Practical and Legal Guide," American Bar Association Publishing, April 2014 (author)
  • "Lunch and Learn: Legal Update," Associated Builders and Contractors, Inc., Massachusetts Chapter, March 2014 (presenter)
  • "It's Miller (Act) Time," American Bar Association Forum on the Construction Industry, January 2013 (panelist)
  • "Construction Risk Management," Gould Construction Institute, Associated Builders and Contractors, Inc., December 2012 (presenter)
  • "Go Green or Go Home," Home Builders and Remodelers Association, Central Massachusetts Chapter, Fall 2012 Newsletter (author)
  • "A Primer on Contract Formation and Terms," Home Builders and Remodelers Association, Central Massachusetts Chapter, Summer 2012 Newsletter (author)
  • "Court Defines Reach of Mechanics Lien Law in Leasehold Context," Associated Builders and Contractors, Inc., February 2012 Newsletter (author)
  • "Notice of Possible Mechanic's Lien: An Easy Way to Forfeit Lien Rights," Internal Newsletter, March 2011 (author)
  • "Bonding and Insurance for Emerging Contractors, Claims and Dispute Resolution," R.I. Contractors Development Program (2009, 2010)
  • "Getting Paid in Difficult Times," In-House Client Seminar (2010)
  • "Termination From Collective Bargaining Agreements," Internal Newsletter, Spring/Summer 2009 (author)
  • "Employer Consent Regarding Use of Company Vehicle," Internal Newsletter, Spring/Summer 2008 (author)

Professional / Community Affiliations

  • American Bar Association, Forum on Construction Law, Division Steering Committee member; Special Programming and Education Committee member; Distance Learning (Webinar) Committee member
  • Associated Builders and Contractors
  • Home Builders and Remodelers Association, president
  • Massachusetts Bar Association, Steering Committee, Development and Construction Law Committee
  • Rhode Island Bar Association
  • Worcester County Bar Association
  • Town of Hopkinton Youth Soccer, board member

Building the Boroughs: A Year in Review

In 2019, Mirick O’Connell’s permitting attorneys were proud to help our clients, large and small, with local approvals in Marlborough for 6 great projects. Thank you to our clients and the City of Marlborough for a wonderful year! Click here …

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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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