In the event a claimant is not paid and notice has been given, if required (see previous blog post dated February 25, 2022), then the claimant must file suit within one (1) year from the date the claimant last supplied labor or materials to the project in order to prevail on its claim. This one (1) year period begins to run from the last date the claimant completes all the work in its contract, not just the particular work included in the claim. See N.B. Kenney Co., Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 70 Mass. App. Ct. 736 (2007).
Courts are generous in their tolling of the one (1) year statute of limitation. The period may be tolled even if the contractor’s ulterior purpose in returning to the site to perform work is to revive the contractor’s ability to enforce a claim on the bond, so long as the work performed is actually necessary for completion of the contract. Armco Drainage & Metal Products v. Town of Framingham, 332 Mass. 129 (1954).
A claimant who prevails on its claim is entitled to reasonable attorneys’ fees based “upon the time spent and results accomplished.” G.L. c. 149, § 29. The amount of attorneys’ fees deemed “reasonable” is not limited by the amount of the claim in question. See Atlantic Pipe Corp. v. R.J. Longo Constr. Co., 35 Mass. App. Ct. 459, 461-462 (1993) (principal recovery of $69,409.87; award of fees of $172,924); J.P. Constr. Co. v. Stateside Builders, Inc., 45 Mass. App. Ct. 920, 921 (1998) (damages of $29,095.38; fees award of $39,583)).
The granting of attorneys’ fees under G.L. c. 149, § 29 extends to the appellate process, and a successful claimant will be awarded any appellate fees incurred. City Rentals, LLC v. BBC Co., 79 Mass. App. Ct. 559, 568 (2011) (citing Manganaro Drywall, Inc. v. White Constr. Co., 372 Mass. 661, 667 (1977); J.P. Constr. Co. v. Stateside Builders, Inc., 45 Mass. App. Ct. at 921; Framingham Heavy Equip. Co. v. John T. Callahan & Sons, Inc., 61 Mass. App. Ct. 171, 181 (2004)).
G.L. c. 149, § 29 claims may be subject to mandatory arbitration provisions set forth in the subcontract. Generally parties will still bring the claim in Superior Court, as set forth in G.L. c. 149, § 29, and stay the action pending arbitration. See Floors, Inc. v. B. G. Danis of New England, Inc., 380 Mass. 91 (1980).