Gordon Rees Scully Mansukhani’s Jesse Blyth, Partner in the Boston office, and Associate Shaun Loughlin, successfully obtained a complete dismissal at the pleading stage of a multi-million dollar action in favor of the firm's engineering client in Massachusetts Superior Court.
The action arose out of alleged design and construction defects following new construction of a luxury condominium structure in Boston, Massachusetts. The plaintiffs in the underlying action included the condominium owners, as well as the Board of Trustees tasked with managing the condominiums. The plaintiffs alleged that the developer, general contractor, and retained design professionals breached their contractual duties and applicable standards of care in the design and construction of the project.
The project’s general contractor and developer filed a third-party complaint against the firm's mechanical engineering client, under causes of action sounding in negligence, breach of contract, common law indemnity, and statutory contribution. Blyth and Loughlin prepared and served a motion to dismiss all causes of action. The motion argued that the general contractor/developer could not sustain a cause of action sounding in breach of contract because they did not contract with the engineer, nor were they third-party beneficiaries to the engineer’s contract with the project’s architect of record.
Next, the general contractor/developer could not sustain a cause of action sounding in negligence because such an action is barred by the economic loss doctrine. Also, they could not sustain a cause of action sounding in contribution because such a claim necessitates a finding that the engineer is liable to the original plaintiffs, which is not actionable as a matter of law due to the economic loss doctrine. Finally, the general contractor/developer could not sustain a cause of action sounding in indemnity because they sought only economic damages from the engineer, which are unrecoverable in an indemnity action, and because the engineering client’s scope of work was but one of a series of defects alleged against the contractor/developer, thereby barring a claim of pass-through or vicarious liability.
Instead of opposing the engineer’s motion, the general contractor/developer voluntarily dismissed the action in its entirety resulting in no monetary settlement to acquire this dismissal. This successful result is a rarity among construction negligence and breach of contract actions, and demonstrates the capabilities of the firm's accomplished construction practice group attorneys.
Blyth is a partner in the Boston office of Gordon & Rees and a member of the Commercial Litigation and Construction practice groups. He has extensive experience handling complex matters in all stages of litigation, including first chair counsel on jury and bench trials, depositions, written discovery, law and motion, expert retention and development, expert depositions, trial preparation, and trial practice through verdict and judgment, and has participated in numerous mediations and arbitrations.
Loughlin is an associate in the firm’s Boston office and is a member of the Construction and Commercial Litigation practice groups, representing both design professionals and contractors in complex disputes. Loughlin regularly handles disputes from the inception of a claim through litigation, and also has experience representing clients in both mediation and arbitration.