Articles Posted in CONSTRUCTION LITIGATION


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The U.S. First Circut Court of Appeals has upheld an arbitration award against the general contractor and in favor of a subcontractor who left a jobsite prior to completion of its work on a project at the Portsmouth Naval Shipyard in Kittery, Maine. The case was Eastern Seaboard Construction Co, Inc. v. Gray Construction, Inc.

The subcontractor, Eastern Seaboard Construction, Inc. (“Eastern”), was performing site work and encountered changed conditions, which increased the cost of the work and delayed completion of the project. The subcontractor sought extra payment for the changed conditions, which the general contractor, Gray Construction, Inc. (“Gray”), refused to pay after the U.S. government denied its request for extra payment for Eastern’s work.

There was an arbitration provision in the subcontract between Eastern and Gray, and therefore the parties conducted hearings before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator heard evidence and gave an award to Eastern, which was reduced by the cost incurred by Gray to complete Eastern’s work.

Eastern then made a request to the arbitrator, pursuant to AAA rules, to amend the award to reflect a credit to Eastern for the unpaid balance of its contract, which was only around $10,000 less than the credit Gray had received for its completion costs. Both parties appealed to the U.S. District Court, where a magistrate judge vacated the amended award, which had given Eastern its credit for the balance remaining on its contract. The U.S. District Court affirmed the magistrate’s decision and Eastern appealed to the 1st Circuit.

The 1st Circuit reviewed the decision de novo and recited the well established principal that arbitration awards are rarely disturbed by reviewing courts, but that there are instances when justice so requires. Here, the issue raised by Eastern was whether the arbitrator had the authority to alter its decision after the award became final.

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KOSTRZEWA, admn. v. SUFFOLK CONSTRUCTION COMPANY, INC.

No. 07-P-1450, December 18, 2008

The Massachusetts Apppeals Court has ruled that the general contractor for a project to renovate a government building in Boston may be found liable for an accident on the job for failing to maintain a safe workplace. The injured worker was the employee of an asbestos abatement contractor who had been contracted by the demolition subcontractor on the project renovating the Saltonstall Building in downtown Boston. The worker was injured when the scaffolding on which he was working fell over. His attorney brought this suit against the general contractor, alleging negligent supervision. The men were working on scaffolding that was approximately twenty feet high and mounted on wheels. The general contractor did not own and had not erected the scaffolding. To move the scaffolding to work on a new spot, the workers would either have someone on the ground push it or, using the wall or ceiling, they would themselves pull or push the scaffolding to the new location. At the time of the accident, the scaffolding fell over while the employee was trying to move the scaffolding on which he and the other worker were standing. The contract between general contractor the building owner conferred on the general overall responsibility and control of the project, including responsibility for safety. The contract provided that the general contractor was solely responsible for and had control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract.

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This is the Boston Accident Injury Blog, written by Attorney Keith L. Miller, a Boston trial lawyer, with over twenty-five years of experience practicing law and trying case in the Boston area and throughout New England. He has started this Blog with two purposes in mind: first to provide persons with legal problems with information about what they can do to recover for injuries and damages caused by the conduct or misconduct of others, and second, to try to provide information to other lawyers about developments in the law in Massachusetts and elsewhere.

The Blog will attempt to inform and educate persons and businesses about their rights and their right of access to the court system when they need to redress wrongs, breaches or other injustices caused by others, and also to provide a forum to review and analyze recent decisions from state and federal courts, which involve interesting fact patterns and/or provide incite as to the present state of the law in Massachusetts, and elsewhere,

This Blog will also try to describe some of my areas of practice, including summary descriptions of cases of interest, which my firm has handled in the past. Today, a brief description of Attorney Keith L. Miller’s prior experience in CONSTRUCTION ACCIDENT CLAIMS.

Attorney Keith L. Miller has represented numerous workers who are victims of construction worksite accidents. While workers are prevented by law from bringing claims against their employers, which is reserved to workman’s compensation claims, there are often third parties who may have legal responsibility for keeping a safe worksite, and therefore can be sued for negligence. Also, sometimes there are products used on the jobsite, which can be proved to be defective or unreasonably unsafe for use on the job. These are called product liability claims. Attorney Ketih L. Miller has successfully litigated both of these types of claims.

A CASE IN POINT:

A garbage truck operator struck in the face by steel hook used for raising dumpster collects over $300,000 from property owner whose employee improperly attached hook to dumpster

US_Garbage_Truck.jpg The Plaintiff was the driver and operator of a waste collection truck, removing trash from a dumpster behind a Boston apartment building. He was standing at the rear of the truck, raising the dumpster with a steel cable and hook, which had been attached to the dumpster by an employee of the property owner. The hook pulled free from the dumpster and hit the plaintiff in the face, causing serious facial injuries, which required extensive plastic surgery to repair. Keith L. Miller filed an action in Suffolk Superior Court claiming negligence against the property owner. The case settled prior to trial with a substantial six figure payment to the Plaintiff.

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Construction Claims. Boston, Massachusetts Attorney Keith L. Miller has been representing contractors, subcontractors, equipment suppliers and material suppliers in construction related disputes and claims for over twenty years. He has litigated disputes on both public and private construction projects in state and federal courts, and also before the American Arbitration Association. He has filed and enforced mechanic’s liens, bid protests and has successfully prosecuted and defended numerous performance and payment bond claims. He has also represented contractors in administrative proceedings before government agencies, including states’ attorney general, local building departments, and federal agencies such as OSHA and the U.S. Department of Labor.

A CASE IN POINT:

Contractor obtains jury verdict and collects 1.5 million dollars from City of Boston
for unforeseen asbestos removal work on Brighton High School

S&S Contracting Co., Inc. v. City of Boston:

brighton_schoolyard.jpg

A minority owned Boston contractor entered into a $1 million contract to remove asbestos from the Brighton High School in Boston, Massachusetts. After work commenced, significant amounts of additional asbestos were discovered and the contractor was ordered to remove the additional materials, which doubled the work. The contractor submitted change requests, but the City failed to timely process and pay for the extra work, which forced the contractor to file bankruptcy and eventually put it out of business. Keith L. Miller brought an action in Suffolk Superior Court. The case was tried to a jury who returned a verdict in favor of the contractor for 1.5 million dollars with interest. The City appealed. Mr. Miller handled the appeal, which affirmed the lower court judgment. The City paid the full amount of the judgment.

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Keith L. Miller is a Boston civil trial attorney licensed to practice in Massachusetts and New York. He has been litigating in state and federal courts in Massachusetts, New York, New Hampshire, Rhode Island and Vermont for nearly thirty years. He graduated from Yale University in 1976 and from University of Virginia Law School in 1980. He began his legal career in Paris, France and is fluent in French. In 1981 he returned to the U.S. and opened his own law practice in Cambridge, Massachusetts. He spent several years in the late 1980’s with a boutique Boston litigation firm, where he handled all the firm’s personal injury work. In 1987, he left the firm to reopen his own practice and has maintained his own law practice ever since.

While Keith L. Miller has trial experience in many practice areas (including criminal, divorce and probate), his primary focus has been civil trial practice, with an emphasis on plaintiffs’ personal injury and products liability claims. Other practice areas include insurance bad faith, legal malpractice, construction law and general commercial litigation, representing both plaintiffs and defendants.

Keith L. Miller brings a unique approach to business litigation. Unlike most firms, which bill hourly fees for services and demand large up front retainers, he is often prepared to represent claimants on a contingent fee basis, receiving payment only upon a successful recovery by trial or settlement.

While not every claim is appropriate for contingent fees, Keith L. Miller is prepared to review and evaluate potential claims at no initial cost to the client, and when appropriate, will enter into fee agreements contingent at least in part on the success of the case. This permits litigants to prosecute or defend claims knowing from the outset what it will cost to proceed with a claim.

The key to success in litigation, and in particular contingent or fixed fee cases, is objective and realistic early evaluation of the merits of a claim. This requires cooperation from the client in providing all the facts and producing all the relevant documents from the outset. There should be no surprises after the commencement of an action.

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