LLC v. CM LLC (2014)

MEMORANDUM OF DECISION

The dispute between the parties arises out of a contract between the plaintiff Cutter—the general contractor on a project for the construction of an Air Traffic Control Tower located in North Kingston, Rhode Island, and the defendant, CM & B Mason (a Connecticut Corporation).   CM & B subcontracted to do the masonry work on the project for a lump sum price of $259,000.

It was understood (and in the contract) that the masonry work would likely be disrupted at times when steel for the project was delivered and installed.   On those occasions the masonry staging would have to be dismantled and masonry workers could not be in proximity of steel girders because of safety requirements.

It was also agreed that Cutter would purchase certain masonry materials and equipment and would back charge CM & B for those costs.   Cutter had the financial wherewithal to, in effect, advance said costs with assurance they would be paid.   The parties made similar arrangements for employees of CM & B, that is Cutter would be assured that CM & B employees would get paid as required by federal statutes.   CM & B was agreeable to these, financial arrangements.

CM & B eventually became disillusioned with delays on the project which it claims were excessive resulting in a financial loss for the project.

CM & B thereupon pulled its men off the job, which resulted in Cutter having to hurriedly make arrangements for replacement masonry contractors, (at an additional cost).

CM & B claims that Cutter improperly terminated the contract, (resulting in a claimed breach of contract).   CM & B filed a counterclaim.

The court finds the issues in favor of the plaintiff, for the following reasons:

The contract terms, drawings and conditions between the parties were in keeping with the typical contractor practice.   They were kept in a construction trailer on site and readily available for review by any prospective contractor.   There were no surprises here.   CM & B was well aware that the delivery and erection of steel girders and the like would take priority over masonry and could require interruption of masonry work.   Cutter was more than cooperative when it paid CM & B employees and then back charging those expenses against CM & B Mason payments due.   The delays caused by steel delivery were anticipated.

Cutter kept detailed records of invoices for material, equipment and labor which it incurred on behalf of CM & B.

Cutter also advanced payment for air and vapor barriers which were called for by the contract.   The plaintiff's claim for masonry wash, cleanup, scaffolding rental were costs paid by Cutter for the benefit of CM & B.

Compensating damages in the amount of $68,735.98 are awarded in accordance with the plaintiff's exhibit 80 (Summary of Damages as established by the plaintiff).

Cutter has asked for an award of attorneys fees.   There is insufficient proof of bad faith, or vexatious behavior.

The facts of this case could not support such a finding.   Interest is not awarded.

Klaczak, J.T.R.

Klaczak, Lawrence C., J.T.R.