Atlantic Industrial Services, Inc. v. Sevenson Environmental Services, Inc.

15 Mass. L. Rptr. 130
CourtMassachusetts Superior Court
DecidedJuly 23, 2002
DocketNo. 20002514
StatusPublished

This text of 15 Mass. L. Rptr. 130 (Atlantic Industrial Services, Inc. v. Sevenson Environmental Services, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlantic Industrial Services, Inc. v. Sevenson Environmental Services, Inc., 15 Mass. L. Rptr. 130 (Mass. Ct. App. 2002).

Opinion

Kottmyer, J.

Plaintiff, Atlantic Industrial Services, Inc. (“Atlantic”), brought this action against General Electric Company (“General Electric”) et al., seeking compensation for extra work it performed as a subcontractor on property owned by General Electric. Also named as defendants were the general contractor, Sevenson Environmental Services, Inc. (“Sevenson”), and its surety. In Count Three, Atlantic seeks recovery in quantum meruit from General Electric. General Electric moved for summary judgment, and the court denied that motion, without prejudice. General Electric renewed the motion after taking the deposition of Charles Masterson who was Atlantic’s Project Manager for the work covered by the subcontract. After hearing and based on the summary judgment record, General Electric’s renewed motion for summary judgment is ALLOWED.

BACKGROUND

A. Factual Histoiy.

The facts viewed in the light most favorable to the non-moving party are as follows. General Electric owns real property located in Everett, Massachusetts (the “Site”). General Electric previously operated a manufacturing facility on the Site. A remediation order issued requiring all existing buildings on the Site to be demolished and the Site to be capped.

General Electric retained Industrial Design Corporation (“Industrial”) as its agent. On July 23, 1999, General Electric, through Industrial, entered into a contract with Sevenson to perform demolition activities on the Site (the “Principal Contract”). General Electric agreed to pay Sevenson $1,219,300 for those services.

Article 26.4 of the Principal Contract provides that “Contractor (Sevenson) hereby releases Owner (General Electric), Owner’s Agent, their shareholders, employees and agents from any claim for damages, whether direct, incidental, contingent, special, or consequential, for loss of profits, and for additional or extra compensation or costs on account of any delay, due to Force Majeure or any cause whatsoever.” Article 31 of the Principal Contract further provides that Sevenson is entitled to compensation for extra work performed only if agreed upon between General Electric and Sevenson pursuant to a written change order.

On August 31, 1999, Sevenson entered into a subcontract with Atlantic to perform demolition and debris removal work (the “Subcontract”). In Paragraph 2 of the Subcontract, Atlantic agreed to be bound by the terms and conditions of the Principal Contract which were incorporated by reference in the Subcontract. That paragraph provides, in relevant part: ■

Subcontractor (Atlantic) agrees to be bound by all the terms and conditions of the Principal Contract insofar as each and every part thereof is applicable to the Subcontract Work. Subcontractor expressly assumes toward Contractor (Sevenson) all the obligations and responsibilities applicable to the Subcontract Work which the Contractor assumes toward the Owner (General Electric) in the Principal Contract, and Subcontractor agrees that, in addition to any other rights and remedies afforded Contractor by law, Contractor shall have the same rights and remedies against Subcontractor with respect to the Subcontract Work which the Owner has against Contractor under the Principal Contract, all with the same force and effect as though [131]*131every obligation, responsibility, right or remedy were set forth herein in full.

. Paragraph 13 of the Subcontract provides in part:

Contractor shall have the right to order additions ... in the work subject to an adjustment in price. No addition or modification shall be made in the Subcontract work . . . nor shall any claim on account thereof be made except upon written order signed by the Contractor prior to the time Subcontractor begins execution of such work.

There was no contract between General Electric and Atlantic.

As work progressed at the Site, Sevenson notified General Electric of additional work that needed to be performed, including additional removal and disposal work due to unanticipated contamination. In addition, additional equipment had to be brought onto the Site to meet the scheduled completion date. Talks between General Electric, Sevenson and Atlantic representatives ensued. Before doing the work, Atlantic told General Electric that it would make a claim and General Electric and Industrial, through their employees, represented to Atlantic that change orders would be issued and “that would filter down from Sevenson to Atlantic.” Atlantic did not expect to receive payment directly from General Electric. General Electric and Sevenson executed written contract amendments specifying the additional compensation Sevenson would receive for the additional work performed at the Site.

Atlantic claims that it relied on General Electric’s representations when it performed additional work and provided additional equipment to the Site. Atlantic now seeks to be compensated by General Electric in quantum meruit.

B. Procedural History.

On March 17, 2000, Atlantic recorded a Notice of Contract with the Middlesex Land Court Registry District (the “Registry District”) pursuant to G.L.c. 254. On April 13, 2000, Atlantic recorded a Sworn Statement of Account at the Registry District. On May 30, 2000, Atlantic filed its complaint seeking recovery on contract and quasi-contract theories and relief pursuant to a mechanic’s lien. On June 7, 2000, Sevenson recorded a bond in the statutorily prescribed form at the Registiy District in the penal sum of $601,285. On September 5, 2000, Atlantic dismissed Count Four of the Complaint asserting a mechanic’s lien. Thereafter, Atlantic amended its complaint to name Sevenson’s surety, Employers Insurance of Wausau, as a defendant.

General Electric then moved for summary judgment on Atlantic’s quantum meruit claim against it. The Court denied the motion without prejudice. General Electric deposed Atlantic’s project manager, Charles Masterson, and renewed its motion for summary judgment.

STANDARD OF REVIEW

A court grants summary judgment where no genuine issue of material fact exists and where the record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmovmg party’s case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis v. General Electric Motors Corp., 410 Mass. 706, 716 (1991). The nonmoving party cannot defeat the motion for summary judgment simply by resting on its “pleadings and mere assertions of disputed facts . . .” Lalonde v. Eissner, 405 Mass. 207, 209 (1989).

Once the party moving for summary judgment has shown that there is no genuine issue of material fact, the burden is then upon the opposing party to respond and allege specific facts showing that there is a triable issue. John B. Deary, Inc. v. Crane. 4 Mass.App.Ct. 719, 722 (1976). A complete failure of proof concerning an essential element of the nonmoving party’s case renders all other facts immaterial. Kourouvacilis, 410 Mass. at 711.

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Bluebook (online)
15 Mass. L. Rptr. 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-industrial-services-inc-v-sevenson-environmental-services-inc-masssuperct-2002.