Product Description

Recent updates:

• Update: June 2022

  Dear Subscriber:

  Thank you for updating your reference library with the 2022 Supplement to Massachusetts Construction Law and Litigation. This version brings enhanced guidance within your immediate reach—for fast answers to the questions that arise most frequently in your practice.

  Highlights from among the developments reflected in this supplement include

  • a recent case holding that a contract provision purporting to waive or limit the Massachusetts Prompt Pay Act is unenforceable;

  • cases holding that project-specific waivers of consequential damages are enforceable under Massachusetts law;

  • a 2022 Supreme Judicial Court case and other authorities holding that limitation-of-liability provisions, while enforceable with respect to negligence and unintentional breaches of contract, will not be enforced with respect to bad faith conduct, willfully inflicted harm, unfair or deceptive conduct, or gross negligence;

  • a recent case addressing the distinction between employees and independent contractors;

  • a review of the range of regulations and statutes that apply to construction projects—such as safety standards, prompt pay and retainage requirements, and limitations on indemnity—and the types of agreements negotiated by the parties based on standard contract forms and common law principles, including no-damage-for-delay clauses and distinctions between excusable and inexcusable delay;

  • the requirements for recovery under contract and in quantum meruit;

  • a discussion of the scope of the statute of repose set forth at G.L. c. 269, § 2B, including a review of several recent cases;

  • a substantially revised discussion of construction-related tort claims; and

  • a recent First Circuit case upholding the admission of a traffic engineering expert's testimony despite shortcomings in the proponent's discovery disclosures.

  With this latest supplement, Massachusetts Construction Law and Litigation remains an essential companion for any lawyer handling a construction-related matter in the Commonwealth.

  We at MCLE thank you for your ongoing support of this product, as we continue our efforts to bring you the latest solutions to the issues you face in your practice.

  Very truly yours,

  John M. Lawlor, Esq., MCLE Publications Attorney

• Update: May 2020

  Dear Subscriber:

  Thank you for updating your reference library with the 2020 Supplement to Massachusetts Construction Law and Litigation. This version brings the latest in guidance on this area of the law within your immediate reach—for fast answers to the questions that arise most frequently in your practice.

  Highlights from among the developments reflected in this supplement include

  • a Supreme Judicial Court opinion establishing that, aside from breaches specifically related to design and construction, ordinary contract principles would apply to contractors' quantum meruit claims;

  • increases in the threshold dollar amounts applicable to the Designer Selection Board's review procedures;

  • standards for determining whether workers are subject to the Independent Contractor Law;

  • updates to the Massachusetts Department of Transportation Standard Specifications for Highways and Bridges;

  • newly added discussions of the requirement that damages be quantifiable and standards for enforcing liquidated damages provisions;

  • an expanded discussion of the mode-of-operation approach applicable to slip-and-fall cases;

  • recording requirements applicable to mechanic's lien claimants; and •

  • construction litigation.

  With this latest supplement, Massachusetts Construction Law and Litigation remains an essential companion for any lawyer handling a construction-related matter in the Commonwealth.

  We at MCLE thank you for your ongoing support of this product, as we continue our efforts to bring you the latest solutions to the issues you face in your practice.

  Very truly yours,

  John M. Lawlor, Esq., MCLE Publications Attorney

• Update: May 2018

  Dear Subscriber:

  Thank you for updating your reference library with the 2018 edition of Massachusetts Construction Law and Litigation. This new edition brings the latest in guidance on this area of the law within your immediate reach—for fast answers to the questions that arise most frequently in your practice.

  Highlights from among the developments reflected in this edition include

  • passage of the Municipal Modernization Act, which established a more efficient process for procurement on smaller construction projects, changes in the dollar thresholds for vertical and horizontal projects, and provisions for the use of blanket vendor contracts or statewide contracts administered through the Operational Services Division;

  • updates to the discussion of the designer selection process and other procurement provisions for public construction contracts;

  • a recent Appeals Court decision barring the application of a general contractor's no-damages-for-delay clause when the subcontractor had been foreclosed from invoking contractual provisions for extensions of time;

  • amendments to standard American Institute of Architects (AIA) documents and discussion of their application to construction projects;

  • recent case law on the implied covenant of good faith and fair dealing; and

  • an expanded discussion of exceptions to the "pay if paid" provisions of the Massachusetts Prompt Payment Act.

  With this latest update, Massachusetts Construction Law and Litigation remains an essential companion for any lawyer handling a construction-related matter in the Commonwealth.

  We at MCLE thank you for your ongoing support of this product, as we continue our efforts to bring you the latest solutions to the issues you face in your practice.

  Very truly yours,

  John M. Lawlor, Esq., MCLE Publications Attorney

Table of Contents

Chapter 1 expand

Private Construction Contracts

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Jeffrey L. Alitz, Esq., Freeman Mathis & Gary LLP
Christopher L. Brown, Esq., Harrington Heep LLP
Christopher J. Petrini, Esq., Petrini & Associates, PC
David A. Slocum, Esq., Freeman Mathis & Gary LLP

Checklist 1.1

- Checklist of Key Construction Contract Provisions for Owners and General Contractors Buy Form

Checklist 1.2

- Checklist of Key Construction Contract Provisions Between General Contractors and Subcontractors Buy Form

Chapter 2 expand

Construction Law in the Public Sector

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John Michael Curran, Esq., Corwin & Corwin LLP

Chapter 3 expand

Private and Public Construction Contract Performance Issues

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Drew W. Colby, Esq., Kenney & Sams, PC

Chapter 4 expand

Surety Bonds

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John P. Connelly, Esq., Hinckley Allen LLP

Exhibit 4A

- Sample Performance-Bond Form Buy Form

Exhibit 4B

- Miller Act Performance Bond Buy Form

Chapter 5 expand

The Massachusetts Mechanic’s Lien Law

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John W. DiNicola, II, Esq., DiNicola Law Group, LLC
Edwin L. Hall, Esq., Holland & Knight LLP

Checklist 5.1

- Section 2 Mechanic’s Lien—Direct Contract with Owner Buy Form

Checklist 5.2

- Section 2C Mechanic’s Lien—The Design Professional with a Direct Contract with the Owner Buy Form

Checklist 5.3

- Section 2D Mechanic’s Lien—The Design Professional with a Contract with the Section 2C Design Professional Buy Form

Checklist 5.4

- Section 4 Mechanic’s Lien—Direct Contract with Person Who Has Contract with Owner Buy Form

Checklist 5.5

- Section 4 Mechanic’s Lien—Remote Contract with Someone Who Does Not Have Contract with Owner Buy Form

Checklist 5.6

- Section 1 Mechanic’s Lien—Personal Labor—Wages and Benefits Buy Form

Exhibit 5A

- Notice of Substantial Completion Buy Form

Exhibit 5B

- Notice of Termination Buy Form

Exhibit 5C

- Notice of Contract, G.L. c. 254, § 2D Buy Form

Exhibit 5D

- Notice of Identification Buy Form

Exhibit 5E

- Blanket “No-Lien” Bond Buy Form

Exhibit 5F

- Target Lien Dissolution Bond Buy Form

Exhibit 5G

- Partial Waiver and Subordination of Lien Buy Form

Exhibit 5H

- Notice of Dissolution of Lien Buy Form

Exhibit 5I

- Notice of Contract, G.L. c. 254, § 2 Buy Form

Exhibit 5J

- Statement of Account Buy Form

Exhibit 5K

- Massachusetts Deed Indexing Standards: Document Formatting Standards Buy Form

Exhibit 5L

- Notice of Contract, G.L. c. 254, § 2C Buy Form

Exhibit 5M

- Notice of Contract, G.L. c. 254, § 4 Buy Form

Chapter 6 expand

Insurance Issues in Construction Projects

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Katherine A. Foote, Esq., Department of Agricultural Resources, Commonwealth of Massachusetts
Michael Herlihy, Ames & Gough Insurance and Risk Management

Exhibit 6A

- Sample Insurance Provisions for Owner to Request of Architect Buy Form

Chapter 7 expand

Construction Contract Claims

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Elise M. Kuehn, Esq., Lane McNamara LLP
John J. McNamara, Esq., Lane McNamara LLP

Chapter 8 expand

Construction Tort Claims

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Grace V.B. Garcia, Esq., Morrison Mahoney LLP
Stephen Troiano, Esq., Morrison Mahoney LLP

Checklist 8.1

- Initial Interview Topics for Construction Site Accident Case Buy Form

Exhibit 8A

- Authorization for the Release of Employment Records Buy Form

Exhibit 8B

- Sample Letter to Obtain Documents from Public Entities Buy Form

Exhibit 8C

- Sample Letter Demanding Disclosure of Applicable Policy Limits Buy Form

Exhibit 8D

- Sample Tender Letter Buy Form

Exhibit 8E

- Sample Supplemental Tender Letter Buy Form

Exhibit 8F

- Sample Demand Letter Buy Form

Exhibit 8G

- Sample Schedule “A” to Workers’ Compensation Insurer’s Subpoena Buy Form

Exhibit 8H

- Sample Schedule “A” to an Employer Subpoena Buy Form

Exhibit 8I

- Sample Schedule “A” to a Police Subpoena Buy Form

Exhibit 8J

- Sample Motion for Conviction and Probation Records of the Plaintiff Buy Form

Exhibit 8K

- Sample Motion to Permit Third-Party Defendant to Subpoena Psychological Records Buy Form

Exhibit 8L

- Sample Set of Interrogatories (Plaintiff Fall from Roof) Buy Form

Exhibit 8M

- Sample Request for Production of Documents (Plaintiff Fall from Roof) Buy Form

Exhibit 8N

- Sample Request for Production of Documents (Plaintiff Injured Operating Lift) Buy Form

Exhibit 8O

- Sample Request for Admissions Buy Form

Exhibit 8P

- Request for Written Statements Buy Form

Exhibit 8Q

- Sample Plaintiff Deposition Questions Buy Form

Exhibit 8R

- Sample Request for Admissions Directed to Indemnification and Additional-Insured Issues Buy Form

Chapter 9 expand

Damages in Construction Litigation

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Charles F. Ahern, III, Esq.,

Chapter 10 expand

Litigation Against Design Professionals

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Sa'adiyah K. Masoud, Esq., Tufts Health Plan

Editor(s)

Author(s)