Mammoet Usa v. Entergy Nuclear Generation

• Decision Date: 18 July 2005
• Docket Number: No. 04-P-249.,04-P-249.
• Citation: 831 N.E.2d 349,64 Mass. App. Ct. 37
• Parties: MAMMOET USA, INC.<SMALL><SUP>1</SUP></SMALL> v. ENTERGY NUCLEAR GENERATION COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

831 N.E.2d 349

64 Mass. App. Ct. 37

MAMMOET USA, INC.¹ v. ENTERGY NUCLEAR GENERATION COMPANY.

No. 04-P-249.

Appeals Court of Massachusetts, Plymouth.

Argued December 13, 2004.

Decided July 18, 2005.

COPYRIGHT MATERIAL OMITTED

Douglas B. Otto, Boston, for the plaintiff.

James B. Re, Boston, for the defendant.

Present: GREENBERG, LAURENCE, & COHEN, JJ.

LAURENCE, J.

This case presents the following question under a provision of the mechanic's lien statute, G.L. c. 254, § 4²: Does a subcontractor's transportation and delivery of a large piece of equipment (a used transformer owned by a nuclear power plant) to the power plant site and the placement of that equipment by the subcontractor onto a concrete pad, where it was stored as spare or backup equipment for possible future use at the power plant, constitute an "improvement of real property" entitling the subcontractor to the statutory lien? A judge of the Superior Court concluded that it does not. We agree and affirm the judgment.

Factual background. The underlying facts are not in dispute. The defendant, Entergy Nuclear Generation Company (Entergy), a Delaware corporation, operates the Pilgrim Nuclear Power Station (power plant) in Plymouth. In December, 2000, Entergy purchased a piece of equipment known as a transformer from a company called NSTAR to serve as a spare or backup transformer in the event the transformer currently in use at the power plant should need repair or become inoperable. A transformer is a large (twelve feet wide by twenty-one feet long by twenty-two feet high) and extremely heavy (376 tons) steel box that is essential to the operation of the power plant. Its purpose, when connected to the power plant's generator, is to increase the voltage of the electricity, produced by the generator at 22.8 kilovolts, to 345 kilovolts, at which voltage the electricity is transferred to various substations, where it is again transformed and distributed to the power plant's customers.³

In November, 2001, Entergy contracted with Ohio Transformer, Inc. (Ohio Transformer),⁴ to pick up the transformer Entergy had purchased almost a year earlier, which was then located at the Millstone Nuclear Power Station in Waterford, Connecticut, deliver it to the power plant, set it on an existing concrete storage pad near (but not next to or connected to) the generator, and "dress" it. ("Dressing" a transformer is a process of putting it in a state of readiness for use and involves attaching various pumps, fans, bushings, and other components to it and filling it with 17,000 gallons of mineral oil.) Entergy agreed to pay Ohio Transformer $520,463 for transporting, delivering, and dressing the transformer.⁵ Ohio Transformer, in turn, subcontracted with the plaintiff, Mammoet USA, Inc. (Mammoet)⁶ later in November, 2001, to "transport transformer from Millstone Power Plant via truck and barge to Pilgrim Power Plant and set on pad," for which Ohio Transformer agreed to pay Mammoet $312,640.

Mammoet completed its performance of those services on or about December 1, 2001. Although it did not "dress" the transformer as part of its contractual obligations with Ohio Transformer,⁷ Mammoet "rough-set" it onto a concrete storage pad located at the power plant. This rough-setting process required a high degree of sophistication and expertise in engineered heavy lifting.⁸ Because the transformer was brought to the power plant for the purpose of serving as a spare transformer, it was not connected to the generator at the time of the delivery and rough-setting.⁹

Entergy paid Ohio Transformer in full for the services performed by Ohio Transformer and Mammoet. Before Mammoet was paid pursuant to its subcontract with Ohio Transformer, however, Ohio Transformer filed for bankruptcy and never paid Mammoet anything. Mammoet then commenced the instant action against Entergy seeking to enforce the mechanic's lien it had established by filings in the Plymouth County registry of deeds in February, 2002, to recover the $312,640 it was owed for the services it had performed in picking up and delivering the transformer and rough-setting it onto the storage pad at the power plant. On Entergy's motion, a judge of the Superior Court discharged Mammoet's mechanic's lien and granted Entergy summary judgment.¹⁰

Discussion. Mammoet claims that the judge erred in failing to recognize that it was entitled to protection under the mechanic's lien statute¹¹ because it "furnished labor or materials in connection with the improvement to [Entergy's] real property" and "improved the value of" that property. Entergy counters that Mammoet merely transported a piece of Entergy's personal property from one location to another, where it is kept in storage as spare equipment. That does not, Entergy argues, satisfy the statutory requirement of being engaged in work related to an "improvement of real property," but rather constituted work no different in kind than delivering a backup computer for Entergy to keep in reserve on a shelf in a storeroom in case its functioning computer fails. Neither party benefits from any Massachusetts appellate decision construing the term "improvement" as used in the statute, which we are therefore obliged to address.¹²

As always in such matters, our goal is to ascertain the Legislature's intent in using that term, and any analysis must begin with the actual language of the statute. Unfortunately, the term is undefined in the statute, and we know of no pertinent legislative history to assist us. The words of the statute nonetheless do afford helpful insight.

The familiar rule of construction known as ejusdem generis is applicable and indicates a more limited contextual meaning for a word that in isolation might appear general or broad. That doctrine provides that "[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.'" Banushi v. Dorfman, 438 Mass. 242, 244, 780 N.E.2d 20 (2002), quoting from 2A N.J. Singer, Sutherland Statutory Construction § 47.17, at 273-274 (6th ed. rev.2000). In other words, we "treat[ ] a general, all-encompassing word at the end of a list of specific items as taking on the character of those specific items." Ferguson v. Host Intl., Inc., 53 Mass.App.Ct. 96, 103-104, 757 N.E.2d 267 (2001). "The doctrine is most appropriate when a series of several terms is listed that concludes with the disputed language." Banushi v. Dorfman, supra.

Here, each of the words that precedes "improvement" in G.L. c. 254, § 4, i.e., "building" and "structure," in common parlance connotes something that has been constructed or assembled out of a combination of materials or parts to form a physical object purposefully created for human habitation or for use in the place where it has been assembled.¹³ This more limited connotation for the associated term "improvement" is reinforced by the statutory references to "construction management" and "general contractor" services as principal types of work for which a lien may be claimed. See G.L. c. 254, § § 2, 4. Perhaps most persuasive is the fact that such a narrowing of the scope of an "improvement," to something construction-related, fairly comes within the lien statute's underlying "spirit and intent," Perlera v. Vining Disposal Serv., Inc., 47 Mass.App. Ct. 491, 496, 713 N.E.2d 1017 (1999), quoting from Kenney v. Building Commr. of Melrose, 315 Mass. 291, 295, 52 N.E.2d 683 (1943), which is "to [be] ... a vehicle to secure payment for those furnishing labor and materials in construction." Lizza, Mechanic's Lien Law § 3.2, at 3-2 (Mass. Cont. Legal Educ. 2001). This limitation of "improvement" to a category associated with things being constructed and to the construction industry is underscored by the use in § 4 of the qualifier "other," which would appear to cabin the word even further and limit the breadth it might otherwise be deemed to have in the absence of that adjective.¹⁴

Thus, the word "improvement" in context must be seen as denoting the product of some sort of construction-based activity on or at a property owner's land. That would not include the transportation functions Mammoet engaged in here — picking up, delivering, and setting down an already assembled unitary object (the transformer) that is never going to be used in situ — nor would it extend (as Mammoet argues) to any work or process that somehow "improve[s] the value of ... [the owners's] property."¹⁵

In short, the statutory context in which the phrase "improvement of real property" is placed in § 4 strongly indicates that something is not an improvement unless it is itself, in whole or in part, constructed or assembled in connection with a building or structure or other construction-related project. Cf. Milligan v. Tibbetts Engr. Corp., 391 Mass. 364, 367-368, 461 N.E.2d 808 (1984). At the very least, the placement of the phrase in that context militates against its interpretation in the expansive sense Mammoet advocates, which would afford mechanic's lien protection to the activity of anyone who simply moves a piece of the property owner's personal property from one location to another. Compare note 16, infra, and Banushi v. Dorfman, 438 Mass. at 244-245, 780 N.E.2d 20; Santos v. Bettencourt, 40 Mass.App.Ct. 90, 92-93, 661 N.E.2d 671 (1996); and Osorno v. Simone, 56 Mass. App.Ct. 612, 615-618, 779 N.E.2d 645 (2002) (all restricting the generality of the term "building" by reference to the specific words in a series under the doctrine of ejusdem generis).

Reinforcing this contextual limitation of the reach of the concept of "improvement" is the long-standing judicial observation that "[a] mechanic's lien is a statutory creation and can be enforced only by strict compliance with ... [G.L.] c. 254[, which] governs the creation, perfection, and dissolution of a mechanic's lien and `is strictly...