Central Ceilings, Inc. v. Suffolk Construction Co., Inc.
AC 15-P-1117
| Mass. App. Ct. | Mar 29, 2017Background
- Central Ceilings, Inc. contracted with Suffolk Construction as a subcontractor on a large dormitory project at Westfield State University; subcontract price ≈ $3.6M.
- Project required sequential "flow" (exterior-to-interior, floor-by-floor); timely completion was critical because general contract included bonuses for on-time completion and heavy liquidated damages for delay.
- Suffolk repeatedly failed to coordinate other trades, set control lines, deliver materials, and provide climate control, causing frequent remobilizations, "go-backs," stacking of trades, and compressed schedules.
- Central claimed lost labor productivity ($321,315) and unpaid change order requests (~$82,538); judge found Suffolk breached in multiple respects and awarded $321,315 but denied the COR recovery based on a pay-if-paid clause.
- Suffolk appealed, arguing the subcontract’s no-damages-for-delay clause barred recovery and that the judge erred in using the total-cost method; Central cross-appealed the denial of CORs.
- The trial judge awarded attorney’s fees to Central under G. L. c. 149, § 29; Suffolk challenged denial of discovery and lack of a hearing on fees. Court affirmed judgment and fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability/applicability of no-damages-for-delay clause | Central: clause does not bar damages because Suffolk foreclosed the exclusive remedy (time extensions) and damages sought were for increased manpower, not delay per se | Suffolk: clause is unambiguous and bars damages caused by delays | Court: Affirmed — clause interpreted strictly; Suffolk materially deprived Central of the contractual remedy (extensions) and damages were for compressed schedule/increased manpower, not idle-time delay, so clause did not bar recovery |
| Use of "total cost" method to calculate lost productivity | Central: measured-mile analysis impossible; total-cost method appropriate as last resort; bid realistic and costs reasonable | Suffolk: plaintiff failed to satisfy elements for total-cost method and could have used other methods; also fault for some added costs | Court: Affirmed — trial judge credited expert; total-cost use justified because measured-mile infeasible, bid realistic, costs reasonable, and plaintiff not responsible for added expenses |
| Recovery of unpaid change order requests (pay-if-paid clause) | Central: some CORs were pass-throughs or directly owed by Suffolk; some CORs paid by owner | Suffolk: subcontract conditions precedent (pay-if-paid) not satisfied; no proof owner paid | Court: Affirmed — Central failed to prove owner paid or that amounts were direct Suffolk obligations; judge’s factual finding not clearly erroneous |
| Attorney’s fees: discovery and hearing | Central: fees recoverable under G. L. c. 149, § 29; no requirement to produce billing/payment records to establish reasonable value | Suffolk: denial of discovery on billing/payment and absence of hearing prejudiced defense | Court: Affirmed — denial of requested discovery was not an abuse of discretion or prejudicial; no hearing was requested appropriately by Suffolk, and judge considered Suffolk’s written objections before awarding reduced fees |
Key Cases Cited
- Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346 (Mass. 2011) (standard of review on bench trial and legal rulings)
- Worcester v. Granger Bros., 19 Mass. App. Ct. 379 (Mass. App. Ct. 1985) (enforceability of no-damages-for-delay clauses)
- B.J. Harland Elec. Co. v. Granger Bros., 24 Mass. App. Ct. 506 (Mass. App. Ct. 1987) (no-damages-for-delay clause discussion)
- John E. Green Plumbing & Heating Co. v. Turner Constr. Co., 742 F.2d 965 (6th Cir. 1984) (construing delay damages to mean costs of an idle workforce)
- United States Steel Corp. v. Missouri Pac. R.R. Co., 668 F.2d 435 (8th Cir. 1982) (strict construction of no-damages-for-delay clauses)
- Servidone Constr. Corp. v. United States, 931 F.2d 860 (Fed. Cir. 1991) (describing limits and safeguards for total-cost method)
- Raytheon Co. v. White, 305 F.3d 1354 (Fed. Cir. 2002) (four-element test for total-cost method)
- Farina Bros. v. Commonwealth, 357 Mass. 131 (Mass. 1970) (refusal of time extensions reviewed in contractor-context)
- Manganaro Drywall, Inc. v. White Constr. Co., 372 Mass. 661 (Mass. 1977) (right to a hearing on fee applications only when requested)
- Heller v. Silverbranch Constr. Corp., 376 Mass. 621 (Mass. 1978) (reasonableness of fees assessed by objective value rather than billing/payment evidence)