Leblanc v. Others2

• Decision Date: 08 June 2011
• Docket Number: No. 09–P–364.,09–P–364.
• Citation: 942 N.E.2d 970,78 Mass.App.Ct. 699
• Court: Appeals Court of Massachusetts
• Parties: KELLY A. LeBLANC, administratrix,1v.LOGAN HILTON JOINT VENTURE & others.2

78 Mass.App.Ct. 699

942 N.E.2d 970

KELLY A. LeBLANC, administratrix,1

v.LOGAN HILTON JOINT VENTURE & others.2

No. 09–P–364.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 16, 2009.Decided Feb. 9, 2011.Further Appellate Review Granted June 8, 2011.

William P. Rose for Broadway Electrical Co., Inc.Curtis L.S. Carpenter, Boston, for Logan Hilton Joint Venture.Kenneth B. Walton, Boston, for Cosentini Associates–MA, LLP.Matthew M. O'Leary, Boston, for Cambridge Seven Associates, Inc.Present: CYPHER, SIKORA, & FECTEAU, JJ.SIKORA, J.

The appeal in this wrongful death action requires us to define the potential liability of architectural parties in the circumstances of a large construction project, an extensive contract for their services, and the involvement of multiple codefendants. It presents a challenging exercise in civil procedure.

On August 4, 2004, Roger LeBlanc, a maintenance electrician employed by the Massachusetts Port Authority, was electrocuted as he began work upon transmission equipment at the Hilton Hotel at Logan International Airport in Boston. The cabinets containing the transmission equipment lacked the critical diagram and script necessary to warn workers of the potentially lethal flow of electricity through the equipment. The administratrix of his estate brought this wrongful death action against six defendants. See G.L. c. 229, §§ 2 & 6. With two exceptions specified hereafter, the defendants brought cross claims for indemnification and contribution against each other. Settlement with some defendants and summary judgment in favor of the others resolved all claims by the estate. Cross claims among four codefendants persisted. A judge of the Superior Court resolved them by summary judgment. He concluded that the terms of the contract for services between the hotel builder and owner, Logan Hilton Joint Venture (Hilton), and the building architect, Cambridge Seven Associates, Inc. (Cambridge Seven), precluded liability of Cambridge Seven and its consultant, Cosentini Associates–MA, LLP (Cosentini), for indemnification and contribution to Hilton and the construction subcontractor for electrical services, Broadway Electrical Co., Inc (Broadway Electrical). For the following reasons we affirm in part and reverse and remand in part.

Background. 1. The project and the parties. For construction of the airport hotel, Hilton ³ and Cambridge Seven executed an extensive “Architectural Services Agreement” (the owner-architect agreement) on or about February 5, 1997. The owner-architect agreement contemplated a construction period of approximately twenty-two months concluding in November of 1999, a building capacity of up to 600 rooms, and interior common, commercial, and utility space of more than 80,000 square feet.

Cambridge Seven then contracted with Cosentini for consultant services including “electrical engineering services necessary to enable [Cambridge Seven] to complete its services for Hilton, as defined in the [owner-architect agreement].” We refer to those two firms as the architectural parties. Hilton employed Beacon Skanska USA (Beacon) as general contractor. Beacon employed Broadway Electrical as the electrical subcontractor. Shallbetter Inc., of Wisconsin (Shallbetter), manufactured and supplied the transmission equipment. United Power Group, Inc. (United Power), inspected and installed the equipment.

2. Contractual relations. a. Architect's duties. The owner-architect agreement enumerated for Cambridge Seven a range of construction phase duties. Cambridge Seven had the obligation to submit to Hilton at two-week intervals written reports of its on site observations of work progress and quality. “In particular, [Cambridge Seven] shall promptly inform Hilton in writing of any deficiencies in [w]ork and/or deviations from the requirements of the [c]onstruction [c]ontract which come to [its] attention.” Owner-architect agreement § 2.7.3(b). Cambridge Seven was to visit the site at appropriate intervals, familiarize itself with the pace and competence of the work, and determine generally whether performance accorded with construction documents. Id. at § 2.7.4.⁴ It was to review, approve, or take other appropriate action upon contractor submittals “such as [s]hop [d]rawings ... for the purpose of checking for conformance with information given in the [c]onstruction [d]ocuments.” Id. at § 2.7.11.⁵

Another set of duties was the certification of work for payment by Hilton to the general contractor. Cambridge's Seven's recommendation of amounts due for payment constituted a representation to Hilton that the extent and quality of the related work conformed to the construction contract. Id. at § 2.7.7. Prior to substantial completion of the work, Cambridge Seven was to “arrange and observe tests and inspections required in the [c]onstruction [c]ontract for check-out, start-up and performance testing of all major equipment and specialized building systems ..., including applicable ... electrical ... systems.” Id. at § 2.7.14. Cambridge Seven's recommendation to Hilton of compliance with contractual requirements enabled Hilton's issuance of the certificate of substantial completion. Id. at § 2.7.15. For certification of final completion, Cambridge Seven was to prepare a “punch list” of incomplete or unacceptable items and to confirm the satisfactory completion of those items. Id. at §§ 2.7.16 & 2.7.17. As a prerequisite to the issuance of the certificate of final completion and final payment, Cambridge Seven had to find and to inform Hilton, with supporting documentation, that the general contractor had achieved compliance with the construction contract. Id. at §§ 2.7.19 & 2.17.20.

Finally the owner-architect agreement provided that Cambridge Seven would indemnify Hilton against all financial losses caused by negligent acts, errors, or omissions committed in the course of its contractual professional services or those of its consultants. Id. at §§ 9.1 & 9.4.

b. Architect's exemptions. Several other provisions of the owner-architect agreement limited Cambridge Seven's duties or exempted it from responsibility. Under § 2.1.9, Cambridge Seven was not responsible for the general contractor's “failure to carry out [w]ork in accordance with the [c]onstruction [c]ontract. [It] shall not have control over or charge of acts or omissions of [the general contractor], its subcontractors, vendors or their respective agents or employees....” Under § 2.7.12, despite Cambridge Seven's approval of such work papers as shop drawings from the general contractor, the general contractor remained responsible “for substantiating installation instructions, and for the performance of equipment or systems being provided by [the general contractor]. Likewise, [Cambridge Seven's] approval of a specific item shall not indicate approval of an assembly of which the item is a component.”

c. Contract between Cambridge Seven and Cosentini. The owner-architect agreement authorized Cambridge Seven to retain professional consultants as necessary for the full provision of its services. Id. at § 2.1.4(a). The terms of any such arrangement were subject to the provisions of the owner-architect agreement. Id. at § 2.1.4(b). Cambridge Seven would remain “fully responsible for the timely and proper performance of [s]ervices by its [c]onsultants ... to the same extent as if all such [s]ervices were performed by [Cambridge Seven's] personnel.” Id. at § 2.1.4(c). The ensuing consultant contract between Cambridge Seven and Cosentini incorporated the owner-architect agreement and obligated Cosentini to perform for Cambridge Seven all pertinent services owed by Cambridge Seven to Hilton.

3. The electrical transmission equipment. The parties do not dispute the nature of the electrical transmission equipment. Within the electrical supply industry, it was known as “switchgear.” For commercial consumers of high voltage electricity, it provided surge protection, measurement of current, and, in the configuration employed at the hotel, it switched or converted the flow of electricity from one distribution source to an alternate distribution source in the event of a power outage. Two transformers served the hotel. They reduced high voltage to low voltage as the electricity entered the building. A transformer failure could cause an outage. If one distribution line became inoperable, the gear switched the incoming flow to another line so as to preserve delivery and measurement of the supply.

At the hotel, ten cabinets housed the switchgear. From left to right, they carried numbers 1 through 10. Cabinet 1 at the left end of the formation contained a main incoming feeder and an external parallel cable connection to a “tie switch” in cabinet 9. Cabinet 10 at the right end of the row contained a main incoming feeder and an external parallel cable connection to a “tie switch” in cabinet 2. In normal operation, electricity ran from the incoming feeder to cabinet 1, through cabinet 1, and through the external connection to cabinet 9. Electricity ran also from the incoming feeder to cabinet 10, through cabinet 10, and through the external connection to cabinet 2. The electricity would then pass through metering devices and into the hotel. The external connections enabled the alternate routes of flow.

The switchgear brought with it the danger of two live currents of electricity known as the “backfeeder hazard.” Without adequate warning of the presence of two live lines of power, an electrical worker might assume that the suppression of one line eliminated all live flow through the equipment. As one safety measure, a switchgear cabinet system could employ an interlocking key system designed to prevent access to an energized cabinet. As a separate warning system, the face of the cabinets could bear an explanatory diagram known as a “mimic bus” and signage text alerting workers to the presence of the hazard. Here, the switchgear cabinets...