R. Thomas Dunn
Partner
Tom Dunn concentrates his practice in construction law and complex business dispute resolution representing clients in various sectors of the construction industry, including power generation, utility and road work, painting, and plumbing and mechanical work. Tom has served as trial counsel representing owners, general contractors, subcontractors, and design professionals in multiparty, complex commercial litigation in state and federal courts. Tom is the Partner-in-Charge of the Providence office and he regularly works out of the Boston office.
In addition to litigation, arbitration, and mediation, Tom counsels clients in construction contract drafting, review, negotiation, and dispute avoidance services, including EPC, design-build, CM, GMP, and cost-plus contracts and subcontracts. Tom regularly works with the AIA Contract Documents, ConsensusDocs Contract Documents, and custom manuscript contract documents. In his 17 years of practice, whether resolving disputes or drafting contracts, Tom actively listens to his clients and works collaboratively with them to develop a plan to best serve and advance their objectives in an efficient, pragmatic manner.
Tom has asserted and defended disputes concerning claims related to: breach of contract, mechanic's liens, Miller Act, steel fabrication, bridge and roadway, change orders, loss of efficiency/productivity, abandonment/cardinal change, total cost, quantum meruit, modified total cost, differing site conditions, delays, trade secrets, covenant not to compete, Chapter 93A consumer protection, engineering professional malpractice, shareholder direct and derivatives, breach of fiduciary duty, employee compensation, construction defects, employee discrimination, business valuation, performance bonds, payment bonds, project labor agreements, indemnity, and usury.
Tom is also a leader, speaker, and active contributor to national, state, and local construction lawyer and construction industry groups.
Honors & Distinctions
- Recognized by The Best Lawyers in America® for Construction Law (2021-present)
- JD Supra Readers Choice Award in Construction Law (2021)
- National Law Review "Go-To Thought Leader" Award for Construction Law (2019)
- Rated AV® Preeminent™ by Martindale-Hubbell
- Named a New England Super Lawyers "Rising Star" for Construction Litigation in Rhode Island (2010-2018)
- Recognized by ABA Section of Construction Litigation Committee as an Outstanding Subcommittee Chair (2013-2014)
Professional Activities
- American Bar Association Forum on Construction Law
- Governing Committee
- Chair, Division 1 (2020-2023)
- Chair, Division 1 Litigation and Dispute Resolution (2020-present)
- Editor, Under Construction, an ABA Forum on Construction Law newsletter (2018-2021); Associate Editor (2015-2018)
- Co-chair, ABA Forum on Construction Law Fall 2017 Meeting on 2017 Updates to the AIA Contract Documents
- Membership Committee
- Nominating Committee (2018-2019)
- Panelist, American Arbitration Association National Roster of Arbitrators, Construction Panel and Consumer Panel
- Associated General Contractors of Massachusetts (AGC MA)
- Editor and frequent contributor, AGC MA Best Practices publication
- President, Tufts Lawyers Association (2020-present); Co-chair, 2014-2015 Tufts Law Day on the Hill
- Construction Industries of Massachusetts
- ABA Section of Litigation, Construction Litigation Committee
- Rhode Island Bar Association, Professionalism and Ethics Committee and Superior Court Bench Bar Committee
- Boston Bar Association, Real Estate Section, Construction Law Committee
Publications
- Co-author, Massachusetts Ruling Shows Value of Additional Insured Specifics, Law360, October 3, 2023
- Alert author, Rhode Island Supreme Court Discharges Surety’s Performance Bond Obligations on RI Bridge Project. Tom represented the Surety on appeal. Click here for the opinion.
- Regular contributor to the ABA Forum on Construction Law blog, The Dispute Resolver
- Co-author, “Use of Graphics, Demonstratives, and Trial Technologies,” Construction Trial Deskbook, ABA Forum on Construction Law (2021)
- Speaker and co-author, Former Employee Who Is a Key Witness: Protecting Privilege, Developing Facts, and Mitigating Impact on Claim Preparation and Trial Testimony, presented at ABA Forum on Construction Law's Midwinter 2016 Meeting, San Francisco, California
- Contributing author, AAA Handbook on Construction Arbitration and ADR - Third Edition (2016)
- Speaker and co-author, Circumnavigating the Eternal Triangle: Ethics of Insurance Defense, presented at the Construction Superconference 2014, Las Vegas, Nevada
- Co-author, A Survey of Certificate of Merit Statutes, The Construction Lawyer, Vol. 34, No. 2 (2014)
- Co-author, My Client Can Lien A Condominium's Commonly Owned Property, Right? Not Always And Not In Massachusetts, Under Construction, Vol. 15 No. 3 (2014)
- Co-author, A Tale of Two Lawyers: How Arbitrators and Advocates Can Avoid the Dangerous Convergence of Arbitration and Litigation, Cardozo Journal of Conflict Resolution, Vol. 14, No. 3 (2013)
- Contributing author, State-By-State Guide to Architect, Engineer, and Contractor Licensing, Second Edition, Stephen G. Walker, Editor (2013)
- Contributing author, 50-State Survey on Limitations of Liability, Presented as Part of Plenary 2, Contract Drafting to Reduce or Eliminate Damages –What are the Limits?, ABA Forum on the Construction Industry 2013 Midwinter Meeting, Naples, Florida
- Co-author, Managing Exchanges of Electronically Stored Information (ESI) in Construction Arbitration, Dispute Resolution Journal, August/October 2012
- Co-author, Rhode Island chapter of the State-by-State Guide to Construction and Design Law, Second Edition published by the American Bar Association, August 2009
- Co-editor, The Dispute Resolver, Construction Law Blog of Dispute Avoidance and Resolution Division of the ABA Forum on the Construction Industry
Civic Activities
- Member, Attleboro Area Bar Association; past president (2016-2017); vice president (2015-2016); secretary (2014-2015)
- Treasurer, Bristol County Bar Association (2018-2019); secretary (2017-2018)
Practice Areas
Representative Experience
- Represented the owner of a new, state-of-the-art athletic facility in Massachusetts in the negotiation of a design-build contract. Used the AIA A141-2014 Design Build Contract form as the basis of the agreement. Assisted the client in the negotiation and execution of the Design-Build Amendment for the project. Provided dispute avoidance services during the project on COVID-19 related issues and defective work claims.
- Represented hospitality developers with their construction contracts including drafting and negotiating contracts with the architects using the AIA B101-2017 forms, with contractors using the AIA A101-2017 / A201-2017 forms, and with construction managers using AIA A133-2009 forms. Reviewed and updated a hospitality owner’s standard form of services agreement.
- Represented a developer in Massachusetts who entered into a contract with a city to construct public and private improvements as part of a downtown revitalization project. Utilized the ConsensusDocs 410 contract form for the contract between the developer and city. Used a multi-GMP Amendment process for the varying phases of the public and private work. Drafted and negotiated the construction management agreement with the contractor using ConsensusDocs 500 form. The project involved the use of modular construction building for the apartment complex.
- Reviewed and updated a general contractor’s standard form of subcontract, purchase order, and supply contract for its Rhode Island public works projects.
- Negotiated a construction management contract on behalf of an owner of an animal hospital concerning an expansion project in Rhode Island. Used the AIA A133-2009 contract document and customized the contract to provide that the construction manager was performing design build services for the mechanical, electrical, and plumbing (MEP) scope of work. Post-completion, assisted the owner in remedial work required due to performance issues with the mechanical systems.
- Represented an underground pipe liner contractor in a dispute with private owner regarding claims of defective workmanship. Provided dispute avoidance services with the private owner concerning the remedial work to be performed and work with the client’s insurance carrier concerning the claims.
- Assist high-end residential homeowners with their construction contracts and project dispute resolution including residences in Newport, Rhode Island, Nantucket, and Cape Cod.
- Represented public university on a $150 million building project. Provide legal services regarding resolution of claims with the construction manager and architect.
- Represented a contractor draft and negotiate construction contracts for aquafarm projects. Prepare custom contract language for intellectual property interests and expedited arbitration provisions in the event of a dispute.
- Represented a town in Massachusetts in defense of a claim asserted by a contractor seeking additional compensation. Provide dispute resolution services to assist in the closeout of the project.
Latest Updates in Construction
Representative Experience
- Counsel for a protective coating bridge contractor in a dispute arising out of the Newport Pell Bridge. Prosecute claims against the general contractor and public authority.
- Obtained a complete discharge and dismissal for performance bond sureties for a $80M+ public works bridge and roadway project on an appeal to the Rhode Island Supreme Court due to the awarding authority’s lack of timely notice to the surety before completion of the underlying project. See Apex Development v. RIDOT, No. 2021-135-Appeal (April 19, 2023).
- Obtained dismissal and summary judgment on behalf of performance bond sureties against public authority in Rhode Island.
- Arbitration counsel representing private developer against the construction manager on a public/private development in Massachusetts.
- Counsel for a residential general contractor defending claims from subsequent homeowner about alleged construction deficiencies.
- Trial counsel for a steel fabrication supplier on a new steel lift bridge in Massachusetts regarding a claim against the Design-Builder of the project. The three week bench trial occurred in the Business Litigation Session of the Suffolk County Superior Court.
- Arbitration counsel for an owner of a high-end residential property in Newport, Rhode Island against the general contractor. Defended against the general contractor's claim involving 200+ change orders and claims on this fast-track renovation project.
- Arbitration counsel in a Rhode Island Public Works Arbitration Act proceeding representing a scaffolding subcontractor against the general contractor on a higher education public project. Obtained full recovery of principal claim and successfully opposed a motion to vacate.
- Arbitration counsel for an owner of a new hotel project against design-build contractor in a three-week arbitration. Obtained a favorable arbitration award, a judgment discharging a mechanic's lien, and an affirmative recovery against a contractor. Negotiated and coordinated terms of settlements with subcontractors.
- Successfully settled a case representing a nonprofit owner against a general contractor and its surety arising from construction defects with mechanical renovations.
- Serve as special counsel for a Receiver in Rhode Island in connection with usury litigation against secured creditors. Obtained summary judgment against one secured creditor discharging $30M in debt obligations because of a usury violation. Assisted the Receiver in discharging $28M in creditor claims through hearings before a special master. Obtained summary judgment against another secured creditor discharging $400M+ in debt obligations because of a usury violation as well as a declaration that Rhode Island law applied to loans that chose a different choice of law.
- Represented a mechanical contractor in defense of a $400M+ claim brought by a refinery owner. Obtained a successful settlement of the matter through extensive development of the facts of the case and negotiations with the plaintiff and primary/excess insurers.
- Represented Native American tribe against a general contractor and its surety arising out of defectively installed storm drain and sanitary sewer piping in a new residential community for the tribe's members. Through a mediation, obtained a settlement for the client in excess of the original contract value with the contractor.
- Obtained a prejudgment attachment against an owner of a project based on proof of likelihood of success on breach of an oral contract.
- Represented a general contractor in a bridge project in Rhode Island. Assisted in a successful mediation with the RIDOT. Serve as litigation counsel in various state and federal litigation matters arising from the project.
- Represent heavy civil contractors, subcontractors, and suppliers on road and bridge projects in Massachusetts and Rhode Island.
- Represent general contractors on projects involving the construction of stadiums and expansions of airports.
- Defended a land surveyor in a negligence cause of action and successfully obtained a dismissal on summary judgment.
- Represented companies, including in the construction and transportation industry, against former employees to enforce covenants not to compete and protect the misappropriation of trade secrets.
- Represented family businesses in multiyear, complex corporate shareholder derivative disputes. Served as arbitration counsel for one closely-held business against 50% shareholders. Successfully represented the company in the settlement of the dispute which, in addition to arbitration proceedings, involved actions in Massachusetts Superior Court, the Court of Appeals, and the Supreme Judicial Court.
- Trial counsel representing numerous contractors and owners in obtaining the successful discharge of mechanic's liens pursuant to R.I. Gen. Laws section 34-28-17.1, including representing a general contractor and owner in defending an appeal of such a discharge to the R.I. Supreme Court.
Latest Updates in Litigation
Representative Experience
- Trial counsel for a process piping subcontractor that obtained a multi-million dollar award against a general contractor and its surety on an environmental project to reduce the mercury and sulfur dioxide emissions at the Brayton Point Power Plant located in Somerset, Massachusetts. Client was awarded over $2 million dollars in attorney’s fees and litigation costs recoverable by virtue of prevailing on its Chapter 93A consumer protection claim.
- Trial counsel in a jury trial representing an engineer, procure, construction (EPC) contractor against its engineer team member on a power plant project in Bellingham, Massachusetts.
- Represented a utility owner against a contractor in a differing site conditions claim.
- Represent EPC contractor in claims against owner, design professionals, and subcontractors on a power plant project in Massachusetts.
- Represented construction manager at risk contractor in an energy infrastructure project in Providence, Rhode Island on disputed change orders and claims.
- Represented a solar developer in the negotiation of an Engineering, Procurement, and Construction (EPC) contract for a solar project. Assisted with the drafting of negotiated performance liquidated damages and compensation limitations if the performance criteria is not achieved. Also represented another solar developer in revising their standard EPC contract for future solar development projects.