AGNES, J.
In this case we address the notice provision contained in G. L. c. 149, § 29, as amended by St. 1972, c. 774, § 5 (§ 29),
SPS, the general contractor, posted a payment bond from a surety, Hartford Fire Insurance Company (Hartford). N-Tek filed the underlying action, seeking recovery against SPS's bond pursuant to G. L. c. 149, § 29, based on its claim that it had not been fully paid for its work furnished to a subcontractor, Seaway Coatings, Inc. (Seaway). N-Tek sought to reach and apply the payment bond funds to satisfy outstanding invoices. Hartford denied liability. After a bench trial, the judge found that N-Tek did not provide sufficient written notice of its bond claim to SPS as required by § 29, and ordered judgment to enter for Hartford. On appeal, N-Tek argues that the judge misinterpreted § 29 by imposing an added requirement that the notice "include and communicate an intent to assert a claim against the [g]eneral [c]ontractor's" bond, based on Federal cases construing the Miller Act, 40 U.S.C. §§ 3131-3134 (2002), the Federal analogue to § 29.
Facts. We summarize the facts found by the judge, supplemented by undisputed parts of the record.
1. Project. On August 14, 2008, the Massachusetts Highway Department (department)
2. N-Tek's work for Seaway. In 2008, Joseph P. Toffoloni formed N-Tek, a Massachusetts firm, to provide construction management consultant (or project manager) services to out-of-State subcontractors, such as Seaway, whose business operations in the Commonwealth did not support having their employees act as an on-site manager or superintendent. Toffoloni was N-Tek's president and sole employee.
N-Tek and Seaway did not enter into or otherwise bind themselves to a written contract of hire. Nor did Seaway agree, in any writing, to the terms and conditions of N-Tek's October 6 proposal.
3. Toffoloni's e-mail to SPS regarding unpaid work. Seaway's painting work, scheduled to start in May of 2009, stalled for various reasons, including the fact that certain preparatory steps, such as demolition and concrete repairs, had not been completed. Seaway experienced financial difficulties, initially in the summer of 2010 and thereafter, causing it to fall behind on payments to its suppliers and others. In the run-up to Seaway's financial troubles, Toffoloni sent the following e-mail on March 16, 2010 (March 16 e-mail) to Robert A. Naftoly, SPS's vice-president of project management:
"Please give me a call at [telephone number] when you have a chance. Thanks. Joe."
An attached statement listed ten invoices, totaling $77,166.72, unpaid by Seaway.
On October 20, 2010, SPS informed Seaway that it was henceforth barred from performing further work on the project, per an order of the department. SPS hired a substitute firm, which soon abandoned the project. Three other firms came and went before SPS engaged a fifth (and final) firm that managed to substantially complete the cleaning and painting work.
Prior proceedings. Pretrial rulings pared down what had been a sprawling multiparty case to the present dispute between N-Tek and Hartford. At trial, N-Tek called Toffoloni as its only witness. Naftoly testified on behalf of Hartford. Summarizing its case, N-Tek asserted that SPS had been put on notice by the March 16
On the other hand, Hartford argued that no legally valid, enforceable contract existed between Seaway and N-Tek; that N-Tek failed to provide legally sufficient written notice to SPS; and that N-Tek fell well short of proving any legitimate damages recoverable under § 29.
Standard of review. In reviewing a judgment entered after a bench trial, we review the trial judge's factual findings, based on the "clearly erroneous" standard of Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). City Rentals, LLC v. BBC Co., 79 Mass.App.Ct. 559, 560 (2011). If a trial judge's ultimate finding involves the interpretation of a statute, as is the case here, our review is de novo.
Analysis. Section 29, which has long-standing antecedents,
1. General principles. "Suretyship may be defined as a contractual relation whereby one person engages to be answerable for the debt or default of another." Stearns, Law of Suretyship § 1.1, at 1 (5th ed. 1951). "The fact that this [payment] bond [issued by Hartford] is required by statute does nothing to alter the settled principles of contract and suretyship law." Peerless Ins. Co. v. South Boston Storage & Warehouse, Inc., 397 Mass. 325, 327 (1986). See Wood v. Tuohy, 67 Mass.App.Ct. 335, 341 (2006); C & I Steel, LLC v. Travelers Cas. & Sur. Co. of America, 70 Mass.App.Ct. 653, 657 (2007). A statutory payment bond is a contract, although its terms and conditions are largely defined by statute, in this case, § 29. A surety's obligation under a statutory payment bond corresponds to that of its principal. John W. Egan Co. v. Major Constr. Mgmt. Corp., 46 Mass.App.Ct. 643, 646 (1999). In essence, a surety is liable to make good any default of its principal within the bond's penal sum. See George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 339 (1909); Di Fruscio v. New Amsterdam Cas. Co., 353 Mass. 360, 364 (1967).
A person who has furnished labor or materials for public works and who has not been fully paid has a right under § 29 to seek recovery under the bond of the general contractor in satisfaction of amounts justly due. Section 29 attaches three conditions to this right. A claimant must be eligible to claim protection under § 29; give written notice to the general contractor of its claim; and commence an action in Superior Court within the time limitations established by the statute.
2. Section 29. a. Eligible claimant. The Legislature has defined those persons who are entitled to § 29's protections, including "[a]ny claimant having a contractual relationship with a subcontractor performing labor ... pursuant to a contract with the general contractor but no contractual relationship with the contractor principal furnishing the [payment] bond...." § 29, third par.
N-Tek had a contractual relationship, albeit implied by law, with Seaway but not with the "contractor principal" (SPS) furnishing the bond. The record evidence warranted a finding that Seaway and N-Tek, by their largely unambiguous conduct, had
b. Written notice. A claimant, like N-Tek here, who has dealt exclusively with a subcontractor (Seaway) and has had no contractual relationship with the general contractor (SPS) must give written notice of its claim to the general contractor.
Specifically, pursuant to § 29, N-Tek had to give "written notice to the contractor principal [i.e., SPS] within sixty-five days after the day on which the claimant [N-Tek] last performed the labor" on the public works project, "stating with substantial accuracy the amount claimed, [and] the name of the party [Seaway] for whom such labor was performed." N-Tek argues that the written notice need not "contain any express or explicit statements that the claimant is seeking payment from the general contractor or that a claim against its bond will be pursued." While it is true that the statutory "notice requirement can be satisfied by a brief letter" from the supplier or laborer to the general contractor, it is essential nonetheless that the notice "make unambiguous the claimed rights of all." Barboza v. Aetna Cas. & Sur. Co., 18 Mass.App.Ct. 323, 328 (1984).
N-Tek's argument disregards the purpose of the notice requirement and judicial decisions interpreting § 29 and the Federal Miller Act's virtually identical language. See Bastianelli v. National Union Fire Ins. Co., 36 Mass.App.Ct. 367, 369-370 (1994).
Toffoloni's March 16 e-mail, when considered in light of all the material surrounding circumstances (as this court did in Bastianelli v. National Union Fire Ins. Co., supra at 370), fails to state, explicitly or implicitly, that he (or his firm) was making a claim against SPS for services rendered on the project, and thus fails to satisfy § 29.
Section 29's written notice requirement constitutes a "condition precedent" under Massachusetts law — i.e., an event that must occur before the principal or its surety is obligated to perform
Conclusion. A fair reading of § 29, in light of its history, the legislative aims advanced by the statute, settled contract and suretyship principles not displaced or altered by § 29, and governing Massachusetts case law — bolstered by Federal court decisions interpreting the Miller Act's parallel text that is virtually identical to the provisions of § 29 in question here — leads us to conclude that the judge was correct in ruling that N-Tek did not give SPS sufficient written notice of its bond claim to satisfy § 29.
Judgment affirmed.