Construction

• Represented national construction management firm in defense and prosecution of claims arising from allegedly defective design and construction of major MA intermodal transit facility.
• Defended developer and construction manager against claims arising from the construction of luxury hi-rise condominium towers in a multi-tiered, mixed-use development project in Boston, MA.
• Defended geotechnical engineering firm against negligence and indemnity claims arising for the collapse of a cofferdam during the construction of the Brightman Street Bridge in Fall River, MA.
• Defended international development and property-management firm against allegation of fraud and breach of fiduciary duty and prosecuted a claim for payment owed for construction and development-management services provided on the multi-use NorthPoint project in Cambridge, MA.
• Represented real estate development firm in defense of claims arising from construction/renovation a commercial office building and claims under Massachusetts Prompt Pay Act.

• Represented developer of major resort and casino project in negotiation and drafting of design and construction management agreements for $350 million urban project and coordination of development agreement with host community.
• Represented developer of resort properties in negotiation and drafting of design services and CM-at-Risk agreements for multiple luxury beach resorts.
• Prepared standard forms of construction and design contracts to be used by hospitality provider's internal construction department and trained company personnel on administration of forms and potential negotiation parameters for both stand-alone and shopping center locations.
• Represented international gaming/casino corporation in its U.S. national building program, including regulatory advice, due diligence, negotiation and drafting of design, sitework, construction, and specialty-contractor contracts for multiple, substantial hotel/casino projects in Massachusetts, Maine, Ohio, Kansas, Illinois, West Virginia, and Mississippi.
• Defended hospitality provider against mechanics' lien claim brought by 11 subcontractors arising out the construction of a retail food outlet by Thomas Jefferson University Hospital in Philadelphia, PA.

• Represented the Massachusetts Turnpike Authority in nine cases against design firms seeking recovery for cost over-runs and defective design on the Central Artery/Tunnel Project (Big Dig).
• Represented Massachusetts Turnpike Authority in various litigation and appeals arising from $200million in contractor delay and disruption claims and resulting arbitral awards, Central Artery/Tunnel Project (Big Dig).
• Represented Massachusetts Turnpike Authority in suit brought by frustrated bidder that had sought a contract for the design, installation and maintenance of the cellular telephone system for the I-90/I-93 Tunnel.
• Represented a city housing authority in the litigation and appeal of claims arising from environmental contamination of a housing project during demolition phase of a major renovation.

• Represented contractor/constructor of utility lines on multiple disputes arising from 500 KW extension; negotiation of construction agreements with public and private utilities.
• Represented tunneling subcontractor on payment claims arising from construction of Massachusetts wastewater treatment facility.

Our client developed a biomass fired cogeneration power facility to sell power back to the grid and to support its sawmill operations. As part of this project, it entered into a $13+ million contract with the Defendant to supply key components including the fuel delivery systems, combustor, boiler, turbine- generator and related controls and equipment. The core of the case involved a defective turbine and inefficient combustor. The turbine was rejected as a non-conforming good. The Defendant filed for bankruptcy and we pursued performance bond surety and its professional errors and omissions insurer in the U.S. District Court for the District of Maine in July 2020. .

The client was thrilled with the outcome and our ability to achieve a favorable resolution with only limited deposition discovery, well in advance of trial.

• 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 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.

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.

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.

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]

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.

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.