The Massachusetts payment bond statute requires public project claimants to give notice to the general contractor by certified mail – not an uncommon requirement. The Massachusetts Appeals Court has just held that an email was not adequate notice, but via footnote has left the door open for a better or more definitive email as supplying proper notice in the future. The origin of this shift away from certified mail started more than 20 years ago, when a Massachusetts appellate court held that the failure to give notice by certified mail would not be fatal if the claimant could show actual notice to the GC. The earlier case was Bastianelli v. National Union Fire Ins.
In the present case, the person making the bond claim had been engaged by a subcontractor to provide project management services. The GC did not even know he wasn’t an employee of the sub. The email in question went from that person to a vice president of the GC:
Hello Bob. Enclosed is the January 15, 2010 Statement to Seaway Coatings, Inc./Mr. Athanasios Koussouris for services through that date by N-Tek Construction Services, Inc. for the [project] that are still unpaid.
Please give me a call at [telephone number] when you have a chance. Thanks. Joe
The recipient thought this was a request for assistance in getting paid by the sub, but never interpreted this as a bond claim. The trial court held that the email did not provide the notice required by the payment bond law, and the appellate court agreed. However, the appellate court dropped the following into a footnote –
The judge assumed (and Hartford does not dispute) that a sufficiently detailed email would satisfy §29's requirement that the notice must "be served by mailing the same by registered or certified mail postage prepaid in an envelope addressed to the contractor principal" at its place of business. In view of the result we reach, we are not required to resolve this issue.
With a 1994 decision that lack of certified mail notice is not fatal if actual notice is proven, it is only a matter of time before a Massachusetts court upholds a statutory payment bond claim based on email notice. The recent case is N-Tek Construction Services, Inc. v. Hartford Fire Ins. Co. (Mar. 14, 2016).
© 2020 Commonsense Construction Law