Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Atsalis Brothers Painting Co. v. Aetna Bridge Company

Superior Court of Rhode Island, Providence

August 8, 2019

ATSALIS BROTHERS PAINTING CO., Plaintiff,
v.
AETNA BRIDGE COMPANY and WESTERN SURETY COMPANY, Defendants.

          For Plaintiff: John E. Bulman, Esq.

          For Defendant: Michael E. Kelly, Esq.; Andrew G. Blais, Esq. * Patrick J. McBurney, Esq.; William E. O'Gara, Esq. (for State of Rhode Island Turnpike and Bridge Authority)

          DECISION

          SILVERSTEIN, J. (RET.)

         This matter pends before the Court for Decision on the motion of Defendants Aetna Bridge Company (Aetna) and Western Surety Company (Western) pursuant to the provisions of Rhode Island Rules of Civil Procedure 12(b)(6) to dismiss Count I (Material Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing) and Count IV (Intentional Misrepresentation) of Plaintiff's First Amended Complaint.

         Aetna entered into a $39 million Contract Agreement (Prime Contract) with the Rhode Island Turnpike and Bridge Authority (RITBA) to perform certain rehabilitation work on the Claiborne Pell Bridge (Project). Western, in connection with the Prime Contract, served as Aetna's surety and issued both payment and performance bonds with respect to the Project.

         The agreement between Aetna and RITBA incorporated into it inter alia the Rhode Island Department of Transportation, Division of Public Works - standard specifications for road and bridge construction (the Blue Book) and other supplemental materials. Aetna entered into a $26 million contract (Subcontract) with Atsalis Brothers Painting Co. (Atsalis) as subcontractor to perform approximately two-thirds of the work on the Project called for by Prime Contract. The Subcontract contained a provision which made the Prime Contract documents between Aetna and RITBA, including the Blue Book, a part of the Subcontract.

         Included in the Blue Book as Section 105.18 is a requirement that claims made must be certified in writing, be made under oath and must in essence provide that:

"1. The claim is made in good faith;
2. Supportive data is accurate and complete to the Contractor's best knowledge and belief.
3. The amount of the claim accurately reflects the actual cost incurred by the Contractor."

         Counts I and IV, which are the subject of the pending motion, respectively deal with (a) a claimed material breach of the Subcontract by Aetna in that it failed in a number of specifics to comply with the terms of the Subcontract and also that Aetna breached its duty of good faith and fair dealing to Atsalis by inter alia acting in its own self-interest and in a wrongful manner so as to exclude rightful claims of Atsalis; and (b) alleged intentional material misrepresentations made by Aetna to Atsalis during the performance of the work as to Aetna's willingness at the conclusion of the Project to reconcile payments and time extensions which were intended to and allegedly did induce Atsalis to its detriment to refrain from submitting contemporaneous paperwork.

         Turning first to the Defendants' motion as it is directed at Count I of the First Amended Complaint, Defendants ask this Court to hold that Atsalis has failed to state a claim upon which relief can be granted because in what it has referred to as its Claim No. 1, it failed to include a certificate representing "that the claim was made in good faith." Aetna asserts that such a representation is required under the provisions of Section 105.18 of the Blue Book and Section 2(e) of the Subcontract. Section 2(e) provides inter alia that in the event a claim not in strict compliance with the provisions of the operative documents is made that the parties seeking to make the claim are bound to the following:

"Subcontractor agrees that it will not make claim for extra payment, extension of time, and/or for damages for delay against the Contractor unless such claim is in strict compliance with, and in the manner provided for in the Principal Contract for the Contractor making claims upon the Owner, and, further that in any case, any changes, modifications, alterations or amendments of the Subcontract Agreement will be considered null and void unless the same are in writing and signed by an officer of Contractor and, if extra payment is sought, approved for payment as an extra to the Principal Contract by the Owner. Work performed without compliance with these terms and conditions will be at the sole expense of the Subcontractor."

         Put simply, Defendants ask this Court to hold that Plaintiff has failed to state a claim upon which relief can be granted because despite the provisions of Section 105.18 of the Blue Book and despite the provisions of the Subcontract which Aetna says clearly imposes the Blue Book requirements upon Atsalis, Plaintiff in what it referred to as its ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.