Barletta Heavy Division, Inc., v. Layne Christianson Company

Filing 182

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered directing entry of final judgment. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BARLETTA HEAVY DIVISION, INC. )
)
Plaintiff,
)
)
v.
)
)
)
LAYNE CHRISTENSEN COMPANY
)
)
Defendant.
)
)
)

CIVIL ACTION NO.
07-12084-DPW

MEMORANDUM AND ORDER
September 22, 2011
I disposed of all motions in the above-captioned case
pending post-trial in a memorandum dated April 13, 2011 (Dkt. No.
179) (Post-Trial Memorandum) and requested that Barletta Heavy
Division, Inc. (“Barletta”) and Layne Christensen Company
(“Layne”) submit a form of judgment consistent with the PostTrial Memorandum.

The parties filed a joint status report (Dkt.

No. 180) which contained alternate forms of judgments reflecting
two basic disagreements.
The first disagreement stems from the language in the
summary conclusion of the Post-Trial Memorandum that “Barletta’s
motions for judgment as a matter of law on the insurance claims”
are “granted in part and denied in part.”
at 39.

Post-Trial Memorandum

The language reflects the more fully articulated view in

the body of the Post-Trial Memorandum that Layne would be
responsible for paying any applicable deductible, but that
Barletta did not demonstrate the losses at issue were in fact

covered by the insurance policy and therefore subject to a
deductible.

Id. at 15-33.

Barletta thus prevailed on its

theoretical argument that Layne had a duty to pay any deductible,
but it failed as a practical matter to establish any liability
attaching to this theory.

For these reasons, I adopt in

substance Layne’s proposed judgment for Count I of the Complaint,
which clarifies that Layne is not liable under the insurance
provision of the Subcontract for the defense or indemnification
of Barletta with respect to the third party claims at issue in
this action.
The parties also dispute the amount of the pre-judgment
interest owed by Barletta to Layne as a result of Barletta’s
retention during the pendency of this dispute of $163,372.98 in
funds due to Layne.

The parties agree that without reduction,

the interest on the total amount retained is $75,68.43, applying
the 12% statutory rate, MASS. GEN. LAWS ch. 231 § 6C, over the
period between mid-September 2006, when Layne’s invoices became
due, and late July 2010, when Barletta tendered payment.
Barletta argues that under the guidance of the Post-Trial
Memorandum it does not owe the total amount because (1) it was
not obligated to pay a retainage representing 5% of the total
amount until the conditions in Article 9.4 of the Subcontract
were met; and (2) the interest payment should be reduced further
by $19,530.67, which represents the accumulated interest on

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$42,457.97 Layne was owed for the four years between the time of
the water damage and the time that Barletta received settlement
from Layne’s insurer, Zurich American Insurance Company.

See

Post-Trial Memorandum at 7-10.
With respect to the first aspect of the pre-judgment
interest rate disagreement, Article 9.2 of the Subcontract
authorized Barletta to withhold 5% of the amounts due Layne as
retainage, and Article 9.4 provides that:
The amounts to be retained by the General Contractor
shall become due and payable upon determination by the
Owner’s Engineer of the final quantities hereunder and
receipt of payment of the retainage by the General
Contractor from the Owner; and, as a further condition
precedent to payment of any sums due, when the
Subcontractor has furnished satisfactory evidence
reasonably acceptable to the Contractor (including the
Final Release attached hereto), that the Subcontract
work has been fully performed and all charges and
claims satisfied and all bills paid in full for labor,
materials, equipment and supplies, and when the
Subcontractor has furnished the written guaranties
referred to in Article 1 hereof.
Indeed, Layne did not dispute the applicability of this provision
to 5% of the amount withheld by Barletta and its impact on the
pre-judgment interest figure.

Unfortunately, Barletta for its

part did not, despite an extended period for doing so, furnish
until this week information as to when the satisfaction of the
conditions in Article 9.4 occurred.1

1

Based upon this new

In footnote 1 of the proposed final judgment submitted
April 26, 2011, Barletta asked for seven days to report the date
it received payment from the owner, Proposed Final Judgment at 2
n.1, Tab 1, Dkt. No. 180. No such information was provided to
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information, as most recently revised by the parties’ Joint
Submission Regarding Interest Calculation, Dkt. No. 181, the
relevant number for pre-judgment interest in light of Article
9.4, after consideration of delayed retainage, is $69,500.12.
Layne does not dispute this figure and Barletta has now withdrawn
its disagreement as to the aspect of the pre-judgment interest
dispute.
I decline, however, to reduce the pre-judgment interest
figure further in response to the second aspect of Barletta’s
argument.

Barletta interprets the Post-Trial Memorandum to mean

that Layne had an obligation to defend and indemnify Barletta
against the claims of Richard Parella and Alan Lane, Jr., and to
reimburse the expenses incurred in the defense and settlement of
those claims.

Proposed Final Judgment at 2 & n.1.

Barletta

contends that, as a result, it had the right to retain a portion
of the amount owed Layne until the settlement of the insurance
claim with Layne’s insurer.

Because I have concluded that Layne

had no obligation to defend and indemnify Barletta with respect
to these claims, see Post-Trial Memorandum at 24-32, I reject any
decrease in the pre-judgment interest award on this ground.

the Court until the hearing earlier this week when Barletta
reported the resulting discounted pre-judgment interest figure
was $73,926.27. Following the hearing, Barletta’s counsel
informed the court that this figure was inaccurate and requested
the opportunity to submit a revised figure.
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Accordingly, I hereby direct the Clerk to enter Final
Judgment in this matter as follows:
In accordance with the March 13, 2009 disposition of the
parties’ cross-motions for summary judgment; the October 20, 2009
jury verdict, the March 31, 2011 orders regarding, and the April
13, 2011 Memorandum explaining, the disposition of motions
pending post-trial and the September 22, 2011 Memorandum in
respect of the form of judgment is hereby ORDERED, ADJUDGED AND
DECREED that
1.

On Count I of the Complaint of Barletta against Layne,

for declaratory judgment, that Layne (a) does not have an
obligation to defend and indemnify Barletta against the claims
asserted by Richard Parella, Alan Lane, Jr., and the
Massachusetts Bay Transportation Authority (“MBTA”); (b) does not
have an obligation to reimburse Barletta for the expenses it had
incurred in defending against the claims asserted by Richard
Parella, Alan Lane, Jr., and the MBTA; and (c) does not have an
obligation to reimburse Barletta for the expenses it has incurred
in settling the claims of Richard Parella, Alan Lane, Jr., and
the MBTA.
2.

On Counts II, III and IV of the Complaint, that judgment

is granted Layne, and the claims therein asserted by Barletta are
dismissed with prejudice.

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3.

On Count I of the Counterclaim of Layne against

Barletta, judgment is granted Layne against Barletta in the
amounts of:
a.

$163,372.98; and

b.

Accrued pre-judgment interest in the amount of

$69,500.12;
provided that Layne shall have no further recovery of the
$163,372.98 of damages set forth in 3.a, and no execution shall
issue for that element of Layne’s damages because the amount was
paid by Barletta to Layne following trial of this matter;
provided further that nothing in the preceding clause shall limit
Layne’s ability to recover on and obtain execution in the amount
of pre-judgment interest set forth in paragraph 3.b.
4.

On Count II of the Counterclaim, judgment hereby enters

for Barletta in light of Layne’s adequate remedy at law, as
reflected in the judgment of Count I of the Counterclaim.
5.

On Count III of the Counterclaim, judgment is granted

Barletta; the claim asserted by Layne in Count III of the
Counterclaim is dismissed with prejudice.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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