Representative Litigation Matters
- Represented one of the nation's largest geotechnical subcontractors in claims against a major general contractor arising from construction of pier improvements at an East Coast naval facility
- Led defense trial team in a four-week jury trial of a quasi-state agency in $22 million differing site condition claim arising out of the construction of $100 million marine terminal
- Secured dismissal of design malpractice claim arising out of alleged defective specifications on project for renovation of submarine repair facility at the Portsmouth Naval Shipyard in Kittery, Maine (Fletch's Sandblasting & Painting, Inc. v. Fay, Spofford and Thorndike d/b/a Stantec Consulting Services, Inc., 2019 WL 847731)
- Represented Chapter 11 trustee in connection with preference and fraudulent transfer claims, and directors' and officers' breach of fiduciary duty claims
- Represented major gas utility in defense of $40 million claim by steel pipeline contractor
- Represented major gas utility in $10 million dispute involving pipeline contractor's differing site condition claims and counterclaims for construction defects — engagement included successful motion to dismiss under economic loss rule of negligent misrepresentation claims brought by pipeline contractor against major gas utility (Tetra Tech Construction, Inc. v. Summit Natural Gas of Maine, Inc., 2016 WL 3881056)
- Represented bank in defense of $2 million tort claims arising out of real estate investment partnership
- Represented manufacturer/distributor of industrial floor coating materials in defense of claims arising out of failed flooring system at fish processing facility
- Represented manufacturer/erector of modular home in defense of tort claims arising out of alleged defective manufacture and construction leading to water infiltration and mold contamination
- Represented owner of supermarket chain in claims against contractor, architect, and subcontractor arising out of collapse of supermarket roof
- Obtained judgment after bench trial, including penalties and attorneys' fees, on breach of contract and Prompt Payment Act claims behalf of site work subcontractor on school construction project seeking to recover subcontract balance following wrongful termination (R.F. Jordan & Sons Construction, Inv. v. P.M. MacKay & Sons, Inc., 2006 WL 4911366)
- Awarded summary judgment in favor of subcontractor, including penalties and attorneys' fees, in Miller Act and Maine Prompt Payment Act claims (U.S.A. f/b/o Doten's Construction, Inc. v. JMG Excavating & Construction Co., Inc., 2005 WL 26007800)
- Successfully defended Massachusetts Bay Transportation Authority from motion for preliminary injunction seeking to halt or limit operation of Red Line subway
- Provided successful defense in taxpayer lawsuit seeking to halt design of school construction project (Mandell v. Town of Reading, 12 Mass.L.Rptr. 1 (2000))
We have assisted many owners, and contractors in design and construction contracting including:
Massachusetts Institute of Technology Investment Management Company on over a billion dollars in projects in Kendall Square area of Cambridge, Massachusetts.
Bowdoin College including Roux Center for the Environment, Museum of Art, Watson Arena, and Coles Tower renovations, among other projects.
Roman Catholic Diocese of Maine:
Multiple new building and renovation projects
Multiple projects including design build projects for Colby College in downtown Waterville, and State of Maine. We have also assisted Landry/French on many construction management contracts throughout the State of Maine.
We have represented the developers of Portland's Thompson's point on multiple projects including the renovations of Brick North, and Brick South.
The Jackson Laboratory:
We advised JAX on its $80 million Phase Two expansion of its state of the art vivarium project in Ellsworth, Maine.
Breach of AIA Construction Contract and Waiver of Consequential Damages By Owner
Our client, a general contractor, and the project owner signed an American Institute of Architect A101 contract with accompanying A201 general conditions. The project included construction of a new office/retail building, and associated site work and parking facilities in Amherst, New Hampshire. The project site included an existing building and several underground septic structures and piping that needed to be demolished a removed before construction could begin in earnest on the new building. Prior to signing the contract, the owner removed this demolition work from our client' scope of work and reduced the contract price accordingly. The owner's effort to save money on the demolition work, however, did not go as planned. The owner's demolition contractor did not diligently pursue its work and the project languished. Instead of starting work on the new building on June 1st or client could not commence work until late July. Despite this set back our client delivered the completed project in a shorter overall timeframe than originally planned though later than the original completion deadline that was premised on the June 1 start date. The owner, nonetheless, sought to hold our client responsible for the delays and withhold funds due to purported loss of rental income.
Our client filed suit in New Hampshire Superior Court and placed a mechanic's lien on the project. As required by the contract, the parties then proceeded to arbitration under the American Arbitration Association Rules. In arbitration we asserted that the owner's claim was factually unsupportable and at odds with the mutual waiver of consequential damages clause in the AIA A201 terms and conditions. The arbitrator agreed and awarded our client the full contract balance and interest.
Client Recovers on Claim On Differing Site Conditions Claim Involving Subsurface Contaminated Soils
We successfully resolved a substantial claim for our client, a large, Maine based site contractor, stemming from differing site conditions encountered on an aviation facility owned by project federal government. The case stemmed from the discovery of substantial subsurface PCB contaminated soils during the excavation phase. Based on pre-bid information, limited quantities of contaminated soils were anticipated in light of soil borings included in the plans and specifications. However, once construction was underway our client encountered more extensive subsurface contamination in locations and elevations that were not expected. The existence of the additional contaminated soils required a far more extensive and expensive soils testing and remediation process. Our client sought recovery of these additional costs, first from the general contractor and then from the federal government. Under our client's subcontract with the prime contractor, it had the option to litigate its case in federal court in Northern California or pursue a federal administrative claims process in which its claims were "sponsored" by the prime contractor. Our client chose the latter. Following complex, three-party negotiations we were able to successfully resolve the dispute with our client receiving payment. Our client is thrilled with this outcome.
Defense of Breach of Contract, Negligent Construction and Breach of Duty of Workmanship Claims
We successfully defended a large mechanical contractor in connection with lawsuit stemming from the comprehensive failure of the hydronic piping system in a resort hotel's heating and cooling system. Through fact and expert witness discovery, we established that owner neglect, design defects and installation of incorrect materials by other contractors caused the system failures. These developments allowed our client to exit the case on very favorable terms.
We asserted claims on behalf of a large private institution related to defective design and installation of a geothermal heating and cooling system in a high profile public building. The matter was settled favorably and quickly without recourse of arbitration or litigation.
Defense of Contractor - Davis-Bacon Prevailing Wage Claims
This case concerned the construction of a marine boat dock on an island in Boston Harbor. The Plaintiff claimed entitlement to unpaid wages and enhanced wages under the federal prevailing wage statute known as the Davis Bacon Act. The Plaintiff sought treble damages and legal fees.
Under the Davis Bacon Act construction workers on federally funded projects must be paid specified wage rates (classified according to each trade and the locale of the project) for time spent on the job site. In this case the Plaintiff argued he was not paid for time spent on the "site of the work" as defined in the statute. He also took the position that since the work of constructing the dock was performed from a barge, workers should be compensated at the federal Davis Bacon rates while the barge was en route to the island where the boat dock was being constructed, in addition to the time spend there with the barge anchored while it served as the work platform. The travel on the barge each day was about 3 hours for a round trip.
There were contested facts as to whether and when the Plaintiff was actually on the work site. There was a legal issue regarding the definition of the "site of the work" whether the mobile barge was the "site of the work" while in transit to the island. If the Plaintiff prevailed on any of his claims it would have opened the door to claims from other construction workers on this same project to file similar suits.
The case was tried before a Maine Superior Court Justice in June 2013. The Court issued a decision in August 2013 finding in favor of our client on all claims.
Project Owner Breached Contract by Attempting to Terminate Contractor
Our client, large construction contractor, completed construction of a new entry at a public building. The scope of work included construction of new concrete sidewalks, stairs, accessibility ramp, canopy, lighting, railings and a non-load bearing cast-in-place concrete wall, among other improvements. The owner alleged the contractor was not entitled to payment due to purported late completion and faulty workmanship, particularly with regard to the cast-in-place concrete wall. Although the wall was built in accordance with the owner's specifications, the owner disliked the aesthetics of the finished wall. The owner ignored its role in causing delays attributable to its failure to secure the building permit for some six weeks following issuance of the notice to proceed. It refused the contractor's request to be permitted to return to the project to complete remaining punch list work. The contractor even offered to apply a sealant and coating to the wall to provide a more refined "architectural" finish. Instead, the owner and its architect, declared that the cast-in-place wall had to be demolished and completely re-built. It sought public bids and retained a new contractor.
Our client initiated arbitration in accordance with the contract's dispute resolution provision. It challenged the owner's rejection of the cast-in-place wall under the Spearin Doctrine. Under Spearin a contractor should not be held liable for a deficient project outcome in the work where it has carefully followed the plans and specifications provided by the owner. Following two days of arbitration hearings involving extensive expert testimony regarding American Concrete Institute standards and a site inspection of the completed work (the wall had not yet been demolished), the arbitrator ruled in our client's favor. The arbitrator declared that the completed work, including the cast-in-place wall, complied with the owner's plans and specifications. The arbitrator determined that the owner's expectations of an architectural finish were inconsistent with the specifications it issued for the cast-in-place wall. The arbitrator awarded our client 100% of the funds due on the contract and declared that the owner's attempt to terminate the contract was unwarranted.
Surety Takeover of Mountain Top Communications Infrastructure Contract Following Owner’s Default of Contractor
We represented a performance bond surety asked to step in and complete four communications infrastructure projects. We engaged key consulted and mapped about a path forward for completion of the project with our client's bond principal as the completion contractor.
Differential Building Settlement Claims
We were retained by the City in the State of New Hampshire following a $60 million project for a large addition to an existing municipal building. Due to the nature of the underlying soils, the project involved installation of ground improvements known as aggregate piers to stabilize the bearing capacity of the subsurface clay. Shortly after taking occupancy the City noticed significant cracking in walls and floors. Geotechnical and structural investigations revealed that the building experienced differential settlement (i.e. sinking) resulting in structural problems, cracking, and out of plumb doors. We spearheaded the technical evaluation and pursued and successful strategy with our client to leverage and out of court resolution that maximized out client's recovery so that it could undertake corrective work without further expenditure of City funds.
Bid Protest: Court Requires Award of Contract to Our Client.
Our client, Landry/French Construction, was the low, responsive bidder on a large school renovation project in Maine. Despite the low bid, the Owner followed the architect's recommendation and awarded the contract to the second bidder. We pursued and injunction and expedited Court review. The Court ruled in our client's favor and required the School District to award the contract to Landry/French Construction. [Landry/French Construction v. Lisbon School Department, et al.; Cumberland County Superior Court, Case No. AP-14-052]
Successful Design and Construction Defects Claims for Large Hospital Client
We are successfully pursued claims in federal court seeking recovery of damages arising from defects in the design and construction of a $170 million addition to a Maine hospital complex. The case involved building envelope and mechanic design and construction defects. The matter was resolved prior to trial to a successful outcome.
Jury verdict awarding our client in excess of $900,000+ in U.S. District Court on behalf of a wrongfully terminated general contractor
Our client was the prime contractor for construction of a new clay lined landfill in rural Vermont. The Owner terminated the contractor shortly before substantial completion and filed suit for completion costs. We countersued for wrongful termination and breach of contract. We pursued damages for lost profits on the project, termination costs, and delay damages. The jury found in our client's favor following a three week trial in Burlington. The jury award approximately 90% of the damages claimed for a total of $923,000. [J.A. McDonald v. WSI Moretown Landfill, Inc.]
- Arbitration award of a differing site conditions and delay claim which earned headlines in newspapers for a "KO" of the adverse party.
Contractor Prevails at Trial on Breach of Contract Claims and Gets Legal Fees Awarded
Our contractor/real estate developer client was sued in New Hampshire state court by the owner for breach of a of a $2 million design/build contract. Our client also asserted a counterclaim for breach of contract claim. Each party asserted claims for breach of the implied duty of good faith and fair dealing Following a three-day trial, the Court ruled in our client's favor for $395,000 and legal fees of approximately $91,000 stemming from the plaintiff's bad faith conduct. The matter is currently on appeal to the New Hampshire Supreme Court. [Rudyak et al v. Bearfoot Creek, LLC and Cheboygan Properties, LLC, Carroll County, NH Superior Court, Docket No. 212-2016,CV-00002]
Successful Defense of Claims for Delays, Owner Interference and Extra Work
The Jackson Laboratory, a global leader in genetic research, retained us to assist it with claims arising from construction of its $70 million state-of the art vivarium facility including late completion by its construction manager (CM). The CM alleged that our client interfered with its work by dictating means and methods of construction and sought compensation for project delays and extra work attributed to alleged defects in the plans and specifications put forward by our client's architect and engineers. We took an aggressive approach by filing suit in federal court shortly after completion of the project tackling head on the weak technical arguments put forward by the contractor for its claims for additional compensation. Our approached focus on contractor caused delays and inattention to means and methods of construction. This strategy resulted in an early mediation with a very favorable outcome for our client with a global resolution of the dispute achieved within six months of substantial completion.
Solar Energy: Acquisition of Grid-Scale Project in Brunswick, Maine
Verrill represented Diversified Communications in the acquisition of a newly built $2.5 million solar array in Brunswick, Maine. The array, which was developed by ReVision Energy and went online in January 2018, will provide power to more than 100 businesses at Brunswick Landing. Verrill attorneys advised Diversified Communications on a range of issues in the transaction, including federal debt financing, solar investment tax credits, solar renewable energy credits, electric power sales, EPC contracting, and regulatory, real estate and corporate matters. We worked collaboratively with Diversified Communications and the developer of the project to get the deal done on a short timeline while minimizing investment risk.
Penobscot River Restoration Trust: Project Management
The Penobscot River Restoration Project is one of the largest and most creative river restoration projects in our nation's history. The nonprofit Penobscot River Restoration Trust ("the Penobscot Trust") has worked in collaboration with the Penobscot Indian Nation, seven conservation groups, state and federal agencies, and dam owner Black Bear Hydro Partners LLP, to implement the project to restore 11 species of sea-run fish to the Penobscot River, while also maintaining energy production.* In 2015, the Trust has neared completion of the final stages of this 12-year endeavor. Verrill congratulates all those involved in this historic project.
Successful implementation of the project has revived not only native fisheries but social, cultural and economic traditions of New England's second largest river—the Penobscot. The Penobscot Trust has acquired three Penobscot dams, holds necessary final permits, and is preparing to remove the two closest to the sea – Veazie and Great Works – and construct a fish bypass at the third dam, Howland. At the same time, Black Bear Hydro is, as part of the project, increasing power generation and improving fish passage at several other dams on the river to maintain or increase generating capacity in the system.
Through this reconfiguration of fish migration access and power production, the Penobscot Project has significantly improved access to nearly 1,000 miles of habitat and restore ecological functions of the river while also maintaining hydropower capacity of the river system. Further information regarding this historic project can be found on the Trust's website, www.penobscotriver.org.
Verrill has been pleased to assist the Trust since 2006 with all phases of the restoration project, including drafting of the commercial agreements, national, state and local permitting and regulatory compliance for the decommissioning and removal activities, as well as assistance with strategic planning and dispute resolution. Attorneys from multiple practices, including corporate, real estate, environmental, regulatory, construction, energy and utilities coordinated a multi-disciplinary approach to supporting the Trust's goals and objectives. As a commitment of Verrill to bringing its experience to matters of significant public interest, Verrill contributed extensive in-kind legal assistance to the Penobscot Trust.
* The project has been an uncommonly effective collaboration including PPL Corporation; Black Bear Hydro Partners LLC; Penobscot Indian Nation; the Penobscot Trust, American Rivers, Atlantic Salmon Federation, Maine Audubon, Natural Resources Council of Maine, Trout Unlimited, The Nature Conservancy, federal agencies including the U. S. Department of the Interior [Bureau of Indian Affairs; National Park Service; and U.S. Fish and Wildlife Service (FWS)] and the National Oceanic and Atmospheric Administration (NOAA); the State of Maine including the State Planning Office, Department of Marine Resources and Inland Fisheries and Wildlife; as well as private and public funders; communities; businesses; and numerous others.