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ASM Spotlight
A Message From ASM’s Mike McDonagh
Associated Subcontractors of Massachusetts’ (ASM) first large in-person event in almost a year and a half, our 25th
Annual Golf Tournament, was held on Associated Subcontractors July 29. This year, nearly 300 golfers and of Massachusetts, Inc. came together at the Pinehills Golf Club in Plymouth, one of the finest courses in the state. We were thrilled that we got to see everyone again for a day filled with golf, prizes, food, and networking. A key part of the day was the Protect, Connect, Educate Building a better future for specialty contractors since 1950 announcement of our annual scholarship winners, a program that is open to memwww.associatedsubs.com • 617.742.3412 • mail@associatedsubs.com bers and their families to help cover the cost of college or technical school. The challenge is always selecting a limited number of recipients from a pool of so many well-qualified students. On the subject of holding in-person events again, we remain hopeful that we can host our Biennial Gala and Election Ceremony at the Granite Links Golf Course in Quincy on October 13. This will be another chance for members and industry partners to reconnect and
Mike McDonagh get together to celebrate the industry where we will honor and recognize our members’ service and commitment to the association. It will also give us an opportunity to reflect on this challenging past 18 months. We will also welcome ASM’s new president and board of directors. Mark your calendar – we are always looking to expand our participation and sponsorship of this signature event.
One thing that did not slow down during the height of the COVID-19 pandemic was
ASM’s annual scholarship winners (l-r): Meredith Madden, Rebecca Modderno, Colby Rougeau
ASM is the state’s leading association for specialty contractors.
Since 1950 we have represented companies of all trades, large and small, union and open shop, who work on major building projects across the commonwealth, in both the public and private sector. the state Legislature and ASM has been busy providing testimony on a number of key issues. In June, the Joint Committee on Labor and Workforce Development held a hearing on several bills addressing wage theft in construction and other industries. These bills would provide new tools for the Attorney General’s office and impose new penalties on companies committing wage theft. ASM was there to offer comments at the hearing and also joined with a coalition to submit written testimony. As we stated at the hearing, we believe that companies who commit wage theft have no place in our industry or in any industry. We support strong enforcement of our laws to punish those employers who are cheating their workers on wages, but we noted our concerns with the joint and several liability provisions in the proposed bills. We are happy that conversations about wage theft are ongoing and various stakeholders are working together to find consensus on how to address the issue and work to eliminate wage theft in Massachusetts.
Another bill, dealing with timely payment on public construction, was heard at a public hearing in July and
ASM provided testimony in support.
The bill is intended to help contractors, many of whom are small businesses, receive timely payment for extra work performed on a construction project.
This extra work, often called “change order” work, can take many forms but is normally additional work that was not part of the original plans and Associated Subcontractors specifications or the contract at the of Massachusetts, Inc. outset of the project. Change orders are common in construction and are used when these unforeseen circumstances arise on the jobsite. Contractors perform this additional work because it is needed as part of the job, however, receiving payment for that additional work can be a problem. Currently the law does not set a timeframe for when a public agency must accept or reject charges for work outside the original contract. This bill addresses the problem that many small businesses face when working with public awarding authorities by including reasonable time frames in the law, something that already exists in the law for private construction.
One of nearly 300 golfers enjoyed ASM’s 25th Annnual Golf Tournament on July 29
UPCOMING EVENTS
September 2021 ASM Safety RoundtableProtect, Connect, Educate Building a better future for specialty contractors since 1950 Executive Roundtable
www.associatedsubs.com • 617.742.3412 • mail@associatedsubs.com
October 2021
Biennial Dinner Gala and Elections Legal Roundup – Construction Law
Visit us at www.associatedsubs.com to join.
For more information visit www.associatedsubs.com.
Six Steps to Effective Construction Claims Management
by Anthony da Fonseca
Design and construction defect claims seldom offer obvious allocations of liability. Thus, it is critical to understand all concepts to be investigated. Prior to evaluating the merits of the case, it is important to ensure that several critical steps are taken. Observing the following six tips will ensure that liability and defense costs associated with a construction defect claim are managed appropriately.
1. Information gathering:
Start with some basics, as information takes time to collect and opposing counsel may be motivated to move the claim forward quickly. • Collect all project correspondence, contracts, subcontracts, invoices, plans, change orders and photographs. • Identify all employees who worked on the project. • Establish a main contact person to the matter, preferably one that is intimately familiar with the project. • Issue preservation letters to obtain communications on personal electronic devices and/or on-site construction surveillance video systems.
2. Identify the scope of services:
Most disputes fail to settle due to unclear scope of services. Identifying the governing scope is paramount in developing liability defenses. It is equally important to determine whether such scope was expanded beyond the contract terms.
3. Identify the scope of work for other parties involved:
Identifying the scope of work for other parties allows you to determine who was acting within their contracted scope and who was not. Such analysis helps assign liability, as well as identify who else should be at the table to share in defense costs for the claim.
4. Duty to defend and indemnity considerations:
The contract and insurance policies for all relevant project participants should be reviewed to determine if the insured is required to indemnify or defend other parties on the project. Conducting this review early on will not only impact the defense of the claim but may also impact the resolution of the claim.
5. Issue Reservation of Rights correspondence:
When accepting tender of a new claim, it is important to advise the insured that such acceptance is subject to a reservation of rights to withdraw acceptance of the defense if newly discovered facts result in a change of analysis.
6. Considerations for retaining expert witnesses:
Construction defect litigation can be rather complex and is heavily driven by expert testimony. It is critical to have an expert witness who can serve as a credible independent party that can determine whether a claimed defect can actually be attributed to the insured. The expert must be able to clearly explain complex issues in a manner that can be easily understood by a judge and/or jury. Selecting an expert is critical to the success of the case and should be evaluated on a case-by-case basis to best reflect the merits of each claim.
We can all agree that the easiest way to avoid liability for construction defect claims is preventing them altogether. However, since prevention of a claim is not always possible, it is important to take early action upon receipt of a new construction defect claim to limit liability and ensure the most efficient expenditure of defense costs.
Anthony da Fonseca is an attorney at Kenney & Sams.
MISSION
Founded in 1950, the Associated Subcontractors of Massachusetts (ASM) today represents over 350 subcontractor companies and thousands of employees, as well as suppliers and affiliated organizations in Massachusetts and surrounding states. ASM is the only organization in the Commonwealth dedicated exclusively to the business issues affecting subcontractors, who perform more than 80% of the work on all major building construction in the state.
Construction Law Employment Law Business Litigation
ASM 2021 Executive Committee:
PRESIDENT Peter Gormley New England Waterproofing, Inc.
VICE PRESIDENT Peter Townsend ML McDonald Sales Company, LLC
Helping evaluate potential areas of vulnerability, execute risk management strategy, and prepare each case as trial lawyers.
www.KSlegal.com
BOSTON • 617-722-6045 Old City Hall 45 School Street, Boston, MA
METROWEST • 508-490-8500 Reservoir Corporate Center 144 Turnpike Road, Southborough, MA PRESIDENT-ELECT Jeffrey Marr Marr Scaffolding Company
TREASURER Steven Amanti Amanti & Sons, Inc.
ASSISTANT TREASURER Matt Brown Greenwood Industries, Inc.
AT-LARGE DIRECTOR Leslie Carrio Depaoli Mosaic Company
IMMEDIATE PAST PRESIDENT Susan Coghlin Mailman Coghlin Electrical Services, Inc.
UConn Storrs athletic facilities / Photos by Robert Benson Photography
Storrs, CT – Earlier this year, electrical subcontractor Wayne J. Griffin Electric, Inc., completed work on UConn’s Athletic District Development in Storrs. Spanning 23 acres, the project involved renovations to some of the aging facilities on campus, specifically for the Division I soccer, baseball, softball, and lacrosse programs. Each of these athletic programs received new playing field surfaces and accompanying seating. Additionally, the project involved the construction of a new 54,000sf Performance Center, which houses concessions, locker rooms, areas for weight training and sports medicine, and administrative office space.
Griffin Electric’s on-site services included the installation of new mediumvoltage transformers, low-voltage switchgear, panelboards and related distribution. Griffin was also responsible for the installation of new building and remote building branch lighting and power, low voltage systems including telecom, security and access control systems. The Griffin team, along with its project partners, installed wiring for the new stadium lighting including foundations, poles, light racks, and controllers.
Daniel O’Connell’s Sons of Holyoke, Mass. managed the project, working directly with New Haven-based Newman Architects and electrical engineering firm BVH Integrated Services of Bloomfield.
Proud Supporter of the Work and Mission of the ASM
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