C & H Electrical, Inc. v. Town of Bethel (2012)

MEMORANDUM OF DECISION

I

A.

From 2007 to 2009, the defendant, the town of Bethel, renovated its high school, which was originally built in the 1960's and expanded in the 1970's.   It made improvements to the existing three-story facility by removing asbestos and by adding a 34,000 square foot addition.   The plaintiff, C & H Electric, Inc., is a Connecticut corporation in existence for over thirty years and is located in Waterbury.   As the electrical contractor for the project, it brings this suit against the defendant alleging breach of contract and unjust enrichment seeking damages based upon loss of productivity due to the impact of required asbestos removal at the school.   The parties have stipulated to a number of facts;  indeed, there are few material facts at issue.

In 2004, in preparation for the construction, the defendant retained, Friar Associates (Friar) as its architect and O & G Industries, Inc. (O & G), as its construction manager.¹  Friar hired Eagle Environmental, Inc. (Eagle), to perform hazardous materials surveys;  that work was done in October and November of 2004 and a report was submitted to Friar on December 16, 2004.   The report was contained in a January 6, 2006 project manual for “Phase 2–Asbestos Abatement.”   In May 2006, Eagle advised Friar that during a previous 1988 abatement project, certain asbestos containing materials were intentionally left behind because they were inaccessible and that these materials could impact the renovation project.   Eagle was retained to do further survey work and submitted another report to Friar on June 1, 2006.   As a result of this work, the defendant retained Haz–Pro, Inc., to perform additional abatement work.   O & G prepared the project manual for general construction on July 10, 2006.   On August 7, 2006, Eagle reported that Haz–Pro, Inc., was expected to complete approximately 70 percent of the abatement work by August 16, 2006, but was to suspend the work until the summer of 2007 due to another previously scheduled project and the start of the school year.   Bestech, Inc. (Bestech), was retained to perform the asbestos abatement in the lower level in December of 2006 through April of 2007 as well as in June 2007.²  Bestech was awarded additional abatement work on May 31, 2007 and that work with certain change order work, based on the discovery of additional asbestos, was performed in 2008.

B.

The plaintiff has been the electrical contractor on many Connecticut public school construction projects over the years.   It has worked with O & G on dozens of projects and has had a long standing relationship with O & G. Indeed, Robert Cordeau, the plaintiff's president, testified that his company likes to bid on every job that O & G sends it.³  The plaintiff submitted its $3,256,000 bid for the electrical work on this project on August 22, 2006 after receiving O & G's invitation to bid.   Cordeau emphasized that he did not pay a lot of attention to the bid terms because it was an O & G job.   In fact, he stated that he did not have a concern with the contract because he was comfortable with O & G and had worked under an O & G contract many times.   The parties stipulated that Cordeau was a sophisticated business person and this court finds that the plaintiff is a sophisticated business entity.

The bids were opened on August 22, 2006 and, on September 28, 2006, the defendant, through O & G, asked the bidders for a sixty-day extension.   The plaintiff agreed to the extension on October 22, 2006 at an agreed upon price of $65,000.   It also met with town representatives in October 2006, in an eight hour construction meeting ⁴ during which many aspects of the bid, including labor rates, retainage, change orders and payment schedules, but not asbestos abatement, were discussed.   During the fall, the defendant replaced O & G with the Morganti Group, Inc. (Morganti), in the role of construction manager advisor.⁵  Additionally, Bethel's first selectman, Robert Burke, replaced the existing building committee with a new building committee that elected Gerald Roche as its chair.⁶

On December 18, 2006, the defendant issued a letter of intent to the plaintiff notifying it that it was the low bidder and, on February 21, 2007, the defendant entered into a contract with the plaintiff in the amount of $3,348,200.⁷ with a substantial completion date of two years from signing or February 2009.   In addition to the contract, the parties also signed rider A, modifying certain terms, and rider B, concerning housekeeping and safety requirements.⁸  The contract also incorporated general conditions in a document labeled AIA A201–1997 General Conditions of the Contract for Construction (AIA General Conditions).⁹

Morganti issued a new construction schedule, labeled the “baseline CPM schedule,” that revised the preliminary schedule previously prepared by O & G in August 2006.   The work was divided into different phases for different areas.   Notwithstanding the Morganti baseline schedule, the completion dates were ultimately extended as follows:

Morganti Schedule Actual

Phase 1—Areas 3, 4: 4/5/07 through 8/10/07 8/28/07

New Addition:  2/9/07 through 12/17/07 4/8/08

Phase 2—Areas 2, 2A, 5, 6, 6A, 10, 10A: 6/07 through 12/07 2/4/08 to

4/8/08

Phase 3—Areas 7, 7A, 8, 8A, 15, 15A, 16, 16A: 11/25/08

12/07 through 6/08

Phase 4—Areas 11, 12, 12A, 17, 17A: 6/08 through 8/08 9/26/08 to

11/19/08

Phase 5—Areas 9, 13, 13A: 9/08 through 12/08 2/09

In March 2008, the department of public health ordered construction work to cease because of an unanticipated asbestos release;  work did not start again until March 20, 2008.   As can be seen from the above chart, the plaintiff finished the job within the two years provided for in rider A to the contract, albeit not within the projected time in the Morganti schedule.

II

A.

The plaintiff retained Nautilus Consulting, LLC (Nautilus), to analyze the impact of this delay and provide an opinion of the plaintiff's damages.   On behalf of Nautilus, William Prettitore testified that initially the abatement work was to take 112 weekdays, Morganti revised that time to 188 days, but the work actually took 1048 days.   According to Cordeau, his estimator reviewed the drawings that showed where the asbestos was located, but the plaintiff assumed from that preliminary schedule that the abatement work would be mostly finished before it started its work.

As indicated, that was not the case and the plaintiff's planned action was disrupted by the abatement operation.   The abatement was a separate contract from the other construction work.   Nevertheless, the asbestos drawings (HM–Hazardous Materials) were supplied to the plaintiff.   The plaintiff's senior project manager, Chris Crowell, believed the asbestos work would be finished before the plaintiff began its work.   Indeed, Crowell testified that the plaintiff never examined the HM drawings in detail to see where the asbestos was because they did not care.   Crowell also admitted that there was a risk that more asbestos might be found than was originally identified by an asbestos consultant.

As a result of the abatement operation, the plaintiff was required to return to work areas multiple times and to move constantly its equipment around the building.   Additionally, new crews had to learn the work that had become familiar to other crews.   Nautilus noted that in the May 2007 Morganti report, the defendant had an allowance of $450,000 for abatement;  this increased over time to over $1 million.   The large Bestech contract of $613,000 was awarded on May 31, 2007 and ultimately was increased by change orders totaling approximately $176,000.   Most of Bestech's work—for asbestos abatement not depicted on the earlier Eagle drawings because it was discovered thereafter—was performed in 2008.

The spray fireproofing also caused delay.   Initially, O & G anticipated that eighty days would be required for limited spray fireproofing, but that increased to 341 days causing other similar disruption.   The spray fireproofing contract, unlike the original asbestos abatement contract, was, however, part of the construction work that included the plaintiff's contract.

Using an analysis process known as the “measured mile,” the plaintiff claims damages for the fair market value of the additional labor and overhead caused by the abatement delays.   Under this approach, the plaintiff has compared the labor productivity of the more impacted periods of 2008 with the labor productivity of the least impacted period of February 2007 to December 2007, excluding July and August.   According to Prettitore, the plaintiff's productivity was $112.16 per hour in the least impacted period measured against an overall average of $72.27 per hour in the impacted period.   The difference of $39.89 per hour multiplied by total project labor hours of 18,436 results in damages of $735,412 for loss of productivity.¹⁰  The plaintiff first presented its claim for additional compensation to the defendant on February 12, 2009 and updated it on October 5, 2009.   The plaintiff does not claim damages for the full contract amount except for $2,694.90.

B.

The defendant argues that the plaintiff's claims for any additional compensation, especially the alleged loss of productivity caused by the additional abatement work, are barred by the contract's “no damages for delay” clause.¹¹  The plaintiff asserts that the delays on the project arose from the defendant's wilful misconduct and/or gross negligence, arose from the defendant's active interference and are a result of unanticipated abatement.   It further argues that the “no damages for delay” clause is unenforceable because the defendant breached a fundamental obligation in the contract.

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] ․ Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a [written instrument] must emanate from the language used in the [writing] rather than from one party's subjective perception of the terms.”   (Citation omitted;  internal quotation marks omitted.)  Murtha v. Hartford, 303 Conn. 1, 7–8, 35 A.3d 177 (2011).

“[C]ourts do not unmake bargains unwisely made.   Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law ․ Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement;  contracts voluntarily and fairly made should be held valid and enforced in the courts.”  (Emphasis in original;  internal quotation marks omitted.)  Tallmadge Brothers, Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505–06, 746 A.2d 1277 (2000).

C.

1.

It is undisputed that the contract between the parties contained a “no damages for delay” clause.”  “No damages for delay” clauses are valid.   See White Oak Corp. v. Dept. of Transportation, 217 Conn. 281, 288, 585 A.2d 1199 (1991).   Specifically, § 6 of the February 21, 2007 construction contract, in relevant part, states:  “In the event the Trade Contractor is delayed by the Owner, the Owner's representative, the Construction Manager or other trade contractors, and such delay is in the critical path of the Trade Contractor's work, then in that event upon service of written notice of the same as provided herein, the Trade Contractor shall be entitled to and limited to an extension of Time but in no event entitled to delay or acceleration damages.”

Additionally, article 8.3.1 of the AIA General Conditions, entitled “No Damage For Delay Clause” states:  “a. Notwithstanding anything to the contrary in the Contract Documents, an extension in the Contract Time shall be the sole remedy of the Trade Contractor for any (1) delay in the commencement, prosecution or completion of the work, (2) hindrance or obstruction in the performance of the work, (3) loss of productivity, or (4) other similar claims whether or not such delays are foreseeable, contemplated, or uncontemplated, unless a Delay is caused by acts of the Owner, constituting active interference with the Trade Contractor's performance of the Work, and only to the extent such acts continue after the Trade Contractor furnishes the Owner with written notice of such interference.   In no event shall the Trade Contractor be entitled to any compensation or recovery of any damage in connection with any Delay, including without limitation, consequential damages, lost opportunity cost, impact damages or other similar remuneration.   The Owner's exercise of any of its rights or remedies under the Contract Documents (including, without limitation, ordering changes in the work, or directing suspension, rescheduling or correction of the work), regardless of the extent or frequency of the Owner's exercise of such rights or remedies, shall not be construed as active interference with the Trade Contractor's performance of the work.

“b. If the Trade Contractor submits a progress report indicating or otherwise expresses an intention to achieve completion of the work prior to any completion date required by the Contract Documents or expiration of the Contract Time, no liability of the Owner to the Trade Contractor for any failure of the Trade Contractor to so complete the work shall be created or implied.

“c. In addition to the foregoing and to all other express provisions in the Contract Documents, the following are areas of delay which could occur and are clearly contemplated by the parties:

1. delay caused by change orders;

2. delays caused by the bankruptcy or solvency of one or more Trade Contractors or Subcontractors;

3. delays caused by changes necessitated by changes in laws or regulations;

4. unavailability or shortage of building materials;

5. job site theft;

6. weather conditions;

7. failure of one or more Trade Contractor or Subcontractors to perform;

8. vandalism or natural disaster requiring reconstruction.”

Under this unambiguous language, the plaintiff's lost productivity claim is excluded.  “[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.”  (Internal quotation marks omitted.)  CAS Construction Co. v. East Hartford, 82 Conn.App. 543, 547–48, 845 A.2d 466 (2004).

2.

a.

As will be discussed hereinafter, the plaintiff failed to prove ¹² active interference—the only exception in the specified clause.   The proof also demonstrates that the claims, whether labeled loss of productivity or delay and disruption, are excluded by the unambiguous language of § 6 and article 8.3.1.

As stated, article 8.3.1 excepts delays caused by active interference by the owner.¹³  “In the absence of an express covenant there is an implied one that the contractor shall be permitted to proceed with his construction in accordance with the contract and that he shall be given possession of the premises to enable him to do so ․ A delay caused by the owner may constitute a breach excusing performance as required by the contract ․ However, to constitute a breach, the conduct must be wrongful, and accordingly, in excess of ․ legal rights ․ [P]ermitted conduct ․ by one promisor [that] renders unpleasant or inconvenient performance by the other of his agreement effects no discharge of that obligation.”  (Internal quotation marks omitted.)   McPhee Electric Ltd., LLC v. Konover Construction Corp., Superior Court, judicial district of New Haven, Docket No. CV 07 5009694 (October 22, 2009, Lager, J.), citing Li Volsi Construction Co., Inc. v. Shepard, 133 Conn. 133, 136–37, 48 A.2d 263 (1946).

“[T]he general rule is that when time is of the essence, the party with the right to direct the progress of the work ․ may not wrongfully hinder or delay the performance of a subcontractor and, in the absence of contractual provisions to the contrary, the subcontractor may recover increased-cost-of-performance damages resulting from delay caused by the default of the contractee ․ Since the general rule may be made inapplicable by the express and peculiar provisions of the subcontract ․ this court must examine the applicable provisions of the subcontract agreement, both with respect to the provisions that [the plaintiff] relies upon as creating an implied obligation and with respect to [the defendant's] defense premised on the ‘no damages for delay’ clause.”  (Citations omitted;  internal quotation marks omitted.)   McPhee Electric Ltd., LLC v. Konover Construction Corp., supra, Superior Court, Docket No. CV 07 5009694.

There was some testimony concerning Roche's interaction with Morganti personnel and his belief that Morganti was not properly staffing the project;  that testimony does not support a finding of willful, malicious or grossly negligent conduct nor can it be construed as acts of interference with the plaintiff's prosecution of work.   More importantly, there is no serious claim that the abatement delays are “acts of interference” by the defendant.   The defendant and Morganti had Bestech and others perform the additional asbestos abatement.¹⁴  Retaining these contractors, however, is not “acts of interference.”

In McPhee Electric Ltd., LLC v. Konover Construction Corp., supra, Superior Court, Docket No. CV 07 5009694, an electrical contractor sought damages for labor overruns and argued that a similar “no damages for delay” clause was inapplicable.   The court, Lager, J., stated that “[the plaintiff] claims that its labor overrun resulted from bad faith or willful, malicious or grossly negligent conduct on [the defendant's] part under another exception to the enforcement of a ‘no damages for delay’ clause adopted in White Oak ․ In the absence of Connecticut law interpreting the proof required to establish this exception, the court will be guided by New York law which describes the requisite misconduct as that which ‘smacks of intentional wrongdoing ․ as when it is fraudulent, malicious or prompted by the sinister intention of one acting in bad faith [connoting a dishonest purpose].   Or, when ․ it betokens a reckless indifference to the rights of others.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Using this test, the court finds that the purported delay or disruption due to finding new areas where asbestos was required to be removed and ordering its removal is not wilful misconduct or bad faith by the defendant or Morganti.   The actions of the building official requiring spray fireproofing or of the state department of health shutting down the job because of an asbestos release or of the defendant's instruction to have the newly discovered asbestos abated cannot be construed as wrongdoing or acts of interference.   Additionally, the “notices” sent by the plaintiff do not claim active interference;  but, rather, they advise that the plaintiff will be seeking additional compensation for the delays encountered by the asbestos abatement.   Hence, no matter whether the plaintiff was required to prove active interference by the more stringent test or conduct as set forth above, with which this court agrees, or by a lesser standard as argued by the plaintiff; ¹⁵  it has failed to prove that the defendant actively interfered with its prosecution of its work.

b.

Outside of the contract, the plaintiff argues that the additional asbestos abatement falls within one or more of the White Oak exceptions:  “(1) delays caused by the contractee's bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays;  (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee's breach of a fundamental obligation of the contract.”  (Internal quotation marks omitted.)  White Oak Corp. v. Dept. of Transportation, supra, 217 Conn. 289.   The first exception or active interference is discussed above.

The second exception for uncontemplated delay, while seemingly the focus of this case, also does not provide safe harbor for the plaintiff.  “[T]he exception for uncontemplated delays is based on the concept of mutual assent.   Having agreed to the exculpatory clause when he entered into the contract, it is presumed that the contractor intended to be bound by its terms.   It can hardly be presumed, however, that the contractor bargained away his right to bring a claim for damages resulting from delays which the parties did not contemplate at the time ․ For a delay to be uncontemplated, it must be uncontemplated by both parties, or more objectively stated, must not be reasonably foreseeable.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 291.   While there is no specific reference in article 8.3.1 to asbestos abatement, there are, as noted, several different references precluding damages for delay and those references are unambiguous.   This court sees no difference between a delay for additional abatement work and a delay caused by any other trade contractor, whether due to failure to perform or due to a change order or due to a shortage of materials.   Indeed, Crowell testified that in terms of delay, the impact from the abatement would be the same as if caused by any other trade.  (Trial transcript, 10/5/11, p. 69.)

Additionally, “[a]ny consideration of what was reasonably within the contemplation of the parties at the time of contracting must take into account the commercial context.”  Travelers Casualty & Surety Co. v. Dormitory Authority–State of New York, supra, 735 F.Sup. 64.   The plaintiff was one of several contractors involved in a complex construction project on a strict schedule and it entered into the contract with considerable experience working on public school projects.   The fact that delays for asbestos removal could arise on such a project, particularly given the age of the building, should not surprise a sophisticated commercial entity such as the plaintiff.   In fact, Robert Sullivan, Bestech's estimator, was called as a witness by the plaintiff and testified that much of the abatement work was in areas that were not supposed to have contained spray fireproofing and the presence of the undetected or concealed fireproofing is a common occurrence.   He indicated that it is a risk in any renovation project that there would be more asbestos in concealed areas to abate than what was shown on the plans.

Furthermore, the plaintiff cannot so easily dismiss the bid and the contract.   Perhaps it might have bid differently if O & G had not been involved initially;  perhaps not.   At any rate, as previously mentioned, Cordeau testified that he did not pay much attention to the terms of the bid, which included the contract documents, because he was dealing with O & G.¹⁶ Nevertheless, the plaintiff had the opportunity to understand and/or negotiate the terms not only during the bid itself;  but also in the bid extension negotiations and then at the “marathon meeting.”   Rider A to the contract reflects certain modifications, including negotiated changes to articles 8.3.1.c.6 and 8.3.1.c.8. Cordeau understood the risks involved with the project.   For instance, he testified in connection with modifications to the contract that:

Q. And my question was simply that you saw other changes in 8.3 and you couldn't get them.   Isn't that right?

A. Yes.

Q. And you signed the contract anyway.   Right?

A.  Yes.

Q. And a sophisticated businessman accepting the risks that [article] 8.3 imposes and allocates.   Yes?

A.  Yes.

Moreover, concerning how the $65,000 bid extension figure was arrived at, Cordeau averred, “We assumed—just as we did with our bid, we assumed a lot of risk with the $65,000, it was an accepted number.   And we assumed the risk, and the town assumed the responsibility to pay us.   So from that point on, it's not really much of each other's business.”

As noted previously, this contract was written years after the White Oak decision and still the parties inserted a clause that stated that “an extension in the Contract Time shall be the sole remedy of the Trade Contractor for any (1) delay in the commencement, prosecution or completion of the work, (2) hindrance or obstruction in the performance of the work, (3) loss of productivity, or (4) other similar claims whether or not such delays are foreseeable, contemplated, or uncontemplated, unless a Delay is caused by the acts of the Owner, constituting active interference with the Trade Contractor's performance.”   The clause clearly precludes damages for these construction delays.   Hence, the plaintiff, as an entity with extensive experience in the construction industry, should have reviewed the “no damages for delay” clause contained in the contract and contemplated it carefully in determining the amount of the bid.   Therefore, there is no reason not to hold the plaintiff to its bargain.

The third White Oak exception is delay that is so unreasonable that it amounts to an intentional abandonment of the contract.   See White Oak Corp. v. Dept. of Transportation, supra, 217 Conn. 289.   The plaintiff does not argue that its claim falls under this exception.   The project was finished essentially on time although schedules were rearranged due to asbestos abatement.   Additionally, the department of health closed down the job site for approximately two weeks after an asbestos release and the court notes that these events would not constitute an unreasonable delay.

The fourth White Oak exception is delay resulting from a breach of a fundamental obligation in the contract.   See id.   The plaintiff argues that the defendant did not provide the plaintiff with the work site and did not inform the plaintiff of the discovery of additional asbestos and unscheduled abatement.  “A contractee's breach of contract is also recognized as an exception to the enforceability of exculpatory clauses but, as with abandonment and for the same reason, the exception is applied to an especially narrow range of circumstances.   Because the exculpatory clause is specifically designed to protect the contractee from claims for delay damages resulting from its failure of performance in ordinary, garden variety ways, delay damages may be recovered in a breach of contract action only for the breach of a fundamental, affirmative obligation the agreement expressly imposes on the contractee.   Typical of such claims are those in which the contractee has failed in its obligation to obtain title to the work site or make it available to the contractor so that it may commence construction of the agreed upon improvements.”  Corrino Civetta Construction Corporation v. New York, 67 N.Y.2d 297, 313, 493 N.E.2d 905, 502 N.Y.S.2d 681 (1986).

With the exception of the site being closed for two weeks by the state health department, the plaintiff had access to the site.   It was required, however, to move around to accommodate the additional abatement.   Nevertheless, the job was finished within the original time parameters and the court finds that there was no fundamental breach of the contract.

The plaintiff also argues that there was a fundamental breach of the contract in that the defendant failed to inform the plaintiff of the additional asbestos abatement.   Presumably, this refers to the fall 2006 time period.   As noted, Cordeau minimized the importance of the initial abatement contract in bidding the job.   Notwithstanding, the supplemental reports were filed in August by Eagle indicating that work would not be completed until the next summer.   Moreover, in December—before the contract was signed, but after the fall meeting—Bestech was hired to perform work to be done into the summer of 2007.   In May 2007, after the plaintiff was on the site, Bestech was retained to do more abatement work.

First, as noted, Cordeau indicated that the contract documents were not of primary importance and he did not pay strict attention to them.   Second, he did not pay any attention to the fall referendum in which the town was seeking additional taxpayer funding for the project, even though it impacted his bid.   The abatement awards were not confidential;  they were public.   The parties did not discuss abatement at the fall meeting;  perhaps they should have.   Yet, the information known at that time was not that which ultimately impacted this job.   The extra work that could have been discussed at the fall meeting was performed in 2007 during that period when the plaintiff was, according to Prettitore, the most productive.   Therefore, the abatement does not constitute a breach of a fundamental obligation of the contract especially for a job that undisputedly was finished on time.¹⁷

D.

Concerning the labor rate discrepancy, the plaintiff argues that it was not paid the agreed upon price for labor as reflected in the contract.   Initially, change orders one through twenty were approved at the rate the plaintiff had submitted in its bid and incorporated in the signed contract.   Despite this, Friar's senior project manager, Michael Sorano, wrote to the plaintiff's project manager, Crowell, on November 20, 2007 to advise him that the plaintiff's hourly rates in the change orders were not allowed under the contract.   The dispute over these rates continued throughout the project.

Evidently, the plaintiff did not properly fill out the bid documents;  it just included two rates:  $95.21 for a journeyman and $113.42 for a foreman.   Cordeau testified that the plaintiff bid the job to O & G on O & G's form and that “we would have done what is acceptable and expected from O & G, which was to fill in the labor rates.   If O & G had a question, they would have asked us.”  (Trial transcript, 9/21/11, p. 104.)   He also testified that at the initial meetings with Morganti and town representatives, including the “marathon meeting,” there was no discussion about the way in which the forms were filled out.   Nevertheless, these amounts were included in the signed 2007 contract.¹⁸  The plaintiff objects to the defendant's attempt to reform the contract and argues that the defendant owes it $100,266 ¹⁹ as the rates were part of the contract and there is no evidence that the plaintiff misrepresented the rates or acted fraudulently.

“A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other.”  (Internal quotation marks omitted.)  Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981).  “The remedy of reformation is appropriate in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction ․ In short, the mistake, being common to both parties, effects a result which neither intended.”  (Citations omitted;  internal quotation marks omitted.)  Id., 532.  “The burden of proof on the issue of reformation is upon the party seeking it.”  Id., 535.

The defendant maintains that it is not bound by the contractual rates.   Referring to agency law principles, it stresses that the presumption that the agent, O & G, informed its principal, the defendant, of the marked up rates can be rebuffed where the agent acted adversely to the interest of the principle.   See Resnik v. Morganstern, 100 Conn. 38, 43, 122 A. 910 (1923) (listing three sets of circumstances which have been held to rebut presumption).   The defendant thus argues that “if the agent participates in the fraud, misrepresentation, or inequitable conduct, the ‘unilateral mistake coupled with fraud doctrine’ is fully applicable and operates to preclude C & H's claim to the fraudulent rates—or at least this is the town's position.”

The defendant did not present any live testimony that the plaintiff or O & G misrepresented or fraudulently represented the rates.   It has not met its burden.   Cordeau's testimony indicated that he and the plaintiff did not specifically comply with the bid documents;  yet this noncompliance was open and obvious to anyone reviewing the document and subject to review, question, or rejection.   Cordeau did testify, however, that the contract documents demanded use of a fixed unit of measure ²⁰ so any additional work could easily be calculated by multiplying the hours set forth in the unit of measure by the labor rate.   Cordeau also testified that the labor rates provided a cushion because the fixed units did not take into account any problems that might occur on the job.   By the time the parties met in Burke's office in October of 2006 and discussed the change order process, O & G had been replaced by Morganti, O & G was not the defendant's agent and the defendant was dealing directly with the plaintiff.   More importantly, in light of the fact that the contract was not signed until February 21, 2007, months after the fall meeting between only the parties to this case, the defendant's argument simply cannot be sustained.   The bid had been accepted and the contract made.   See G & L Capasso Restoration, Inc. v. West Haven Housing Authority, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 98 00636525 (November 24, 1999, Corradino, J.) [26 Conn. L. Rptr. 46] (“[g]enerally speaking, it has been held that the acceptance of a responsive bid—that is, an award—creates a contract”).

As noted previously in discussing this contract between these two sophisticated parties, “[C]ourts do not unmake bargains unwisely made.   Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law ․ Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement;  contracts voluntarily and fairly made should be held valid and enforced in the courts.”  (Emphasis in original;  internal quotation marks omitted.)  Tallmadge Brothers, Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 505–06.

Both parties, presumably in good faith, treated some provisions informally not requiring strict adherence to the terms and this court cannot now unmake their bargain.   This is especially true in light of not only the above referenced acts, but also in light of the defendant's payment of several of the change orders through November of 2007 at the agreed upon rates.   Judgment enters for the plaintiff on this claim together with interest from the date of this judgment only pursuant to General Statutes § 37–3a.²¹

Prejudgment interest is not awarded.   Notwithstanding the fact that the court has found against the defendant regarding the rates, this court finds that it was not unreasonable or unwarranted for the defendant to contest the claim because of the plaintiff's apparent failure to comply with the documents.   As noted, the issue of the labor rates and change orders was part and parcel of the complications from the asbestos abatement and this court does not view the matter as a wrongful detention of money.   See McCullough v. Waterside Associates, 102 Conn.App. 23, 33, 925 A.2d 352 (concluding that trial court did not abuse its discretion in denying prejudgment interest), cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).

E.

The plaintiff argues that the defendant's payment was untimely due to a statement made by Roche at an early job meeting that all payments would be made within ten days.   The court finds that the statement in no way amends the contract and as such it must be rejected.

F.

As noted previously, the defendant owes the plaintiff the final balance of $2,694.90.   This amount must be paid to the plaintiff plus interest pursuant to § 37–3a from January 15, 2008.

III

In conclusion, the “no damages for delay” clause and the labor rates were agreed to by these sophisticated parties.   They are bound by their agreement and, to the extent they both failed to examine, to adhere to, or to require adherence to its terms, this court will now not make a new agreement.   Judgment therefore enters for the parties as discussed above.

Berger, J.

FOOTNOTES

FN1. O & G was to serve as a “construction manager at risk,” which meant that it would directly hire the various subcontractors..  FN1. O & G was to serve as a “construction manager at risk,” which meant that it would directly hire the various subcontractors.

FN2. Bestech performed the remaining work—the removal of the locker banks and the cleaning of the corridor ceilings on the first and second floors in 2007—under a state contract.   A state contract allows a municipality to hire certain contractors without putting the job out to bid.   The municipality pays established rates set by the state..  FN2. Bestech performed the remaining work—the removal of the locker banks and the cleaning of the corridor ceilings on the first and second floors in 2007—under a state contract.   A state contract allows a municipality to hire certain contractors without putting the job out to bid.   The municipality pays established rates set by the state.

FN3. Cordeau also testified that the plaintiff might not have bid the job if O & G had not been the general contractor..  FN3. Cordeau also testified that the plaintiff might not have bid the job if O & G had not been the general contractor.

FN4. Cordeau referred to this meeting as the “marathon meeting.”.  FN4. Cordeau referred to this meeting as the “marathon meeting.”

FN5. Unlike O & G which contracted with the trade contractors directly, Morganti did not.   Instead, the defendant entered into the contracts directly with the trade contractors..  FN5. Unlike O & G which contracted with the trade contractors directly, Morganti did not.   Instead, the defendant entered into the contracts directly with the trade contractors.

FN6. Roche's relationship with Morganti personnel was called “controversial” by the Morganti project manager, Jo Ann Michaels Dermer.   Roche was replaced by William Slifkin in March 2008..  FN6. Roche's relationship with Morganti personnel was called “controversial” by the Morganti project manager, Jo Ann Michaels Dermer.   Roche was replaced by William Slifkin in March 2008.

FN7. In addition to the bid amount of $3,256,000, which was $120,000 less than the next lowest bidder, $65,000 was added for the bid extension and $27,200 was added for “alternate # 4,” which was accepted by the defendant..  FN7. In addition to the bid amount of $3,256,000, which was $120,000 less than the next lowest bidder, $65,000 was added for the bid extension and $27,200 was added for “alternate # 4,” which was accepted by the defendant.

FN8. Rider C, a certification of resident or nonresident status, was unsigned..  FN8. Rider C, a certification of resident or nonresident status, was unsigned.

FN9. For ease of reference, the court distinguishes sections of the contract and sections of the AIA General Conditions by using “section” to refer to the contract itself and using “article” to refer to the AIA General Conditions..  FN9. For ease of reference, the court distinguishes sections of the contract and sections of the AIA General Conditions by using “section” to refer to the contract itself and using “article” to refer to the AIA General Conditions.

FN10. At the post-trial hearing before this court, the plaintiff argued that portions of the defendant's post-trial brief referencing an article by L. Davis, L. Stipanowich and W. Bauer, “Does the ‘Measured Mile’ Measure Up? When It Has, When It Hasn't and What May Happen Under Daubert/Kumho,” Construction Briefings, No.2007–4* (April 2007), were improperly included in its brief.   The plaintiff submitted a further brief on January 23, 2012 in support of that argument.   This court agrees that the proper time to have offered the article was during the trial.   See generally Carusillo v. Associated Women's Health Specialists, P.C., 72 Conn.App. 75, 88–89, 804 A.2d 960, remanded on other grounds, 262 Conn. 920, 812 A.2d 861 (2002).   Thus, the court has not considered the article..  FN10. At the post-trial hearing before this court, the plaintiff argued that portions of the defendant's post-trial brief referencing an article by L. Davis, L. Stipanowich and W. Bauer, “Does the ‘Measured Mile’ Measure Up? When It Has, When It Hasn't and What May Happen Under Daubert/Kumho,” Construction Briefings, No.2007–4* (April 2007), were improperly included in its brief.   The plaintiff submitted a further brief on January 23, 2012 in support of that argument.   This court agrees that the proper time to have offered the article was during the trial.   See generally Carusillo v. Associated Women's Health Specialists, P.C., 72 Conn.App. 75, 88–89, 804 A.2d 960, remanded on other grounds, 262 Conn. 920, 812 A.2d 861 (2002).   Thus, the court has not considered the article.

FN11. The defendant also argues that the plaintiff's only method for payment of extra work was through the change order process.   According to the contract, § 12, entitled “Extra Work, Authority and Familiarization with Site Work,” states, “The Trade Contractor shall make no claim for extra or additional work unless the same shall be done in pursuance of a written change order ․ There shall be no claim for delay or acceleration damages associated with such extra work.”   This section also provides for a certain process for notice.   While the parties executed some change orders, the specific process was not followed for the subject claim.   Indeed, while article 4.3.2 of the AIA General Conditions requires claims to be made with notice to the architect within twenty-one days after occurrence, the first notice given by the plaintiff was on January 10, 2008 well after the first occurrence in the summer of 2007.   Other notices were sent to the architect throughout 2008 and 2009.   The plaintiff also sent emails to the defendant, but not to the architect in accordance with article 4.3.2.The plaintiff argues that it was exempt from this provision because in the early stages the architect was not actively involved in the project and thus there was no need to provide it with notice.   There is no support for this argument in the contract.   Nevertheless, a finding of whether the plaintiff's letters satisfied the notice provisions of the contract is not needed in light of article 8.3.1 as discussed hereinafter.   Additionally, article 4.3.10 of the AIA General Conditions, in relevant part, states that “[t]he Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract.”.  FN11. The defendant also argues that the plaintiff's only method for payment of extra work was through the change order process.   According to the contract, § 12, entitled “Extra Work, Authority and Familiarization with Site Work,” states, “The Trade Contractor shall make no claim for extra or additional work unless the same shall be done in pursuance of a written change order ․ There shall be no claim for delay or acceleration damages associated with such extra work.”   This section also provides for a certain process for notice.   While the parties executed some change orders, the specific process was not followed for the subject claim.   Indeed, while article 4.3.2 of the AIA General Conditions requires claims to be made with notice to the architect within twenty-one days after occurrence, the first notice given by the plaintiff was on January 10, 2008 well after the first occurrence in the summer of 2007.   Other notices were sent to the architect throughout 2008 and 2009.   The plaintiff also sent emails to the defendant, but not to the architect in accordance with article 4.3.2.The plaintiff argues that it was exempt from this provision because in the early stages the architect was not actively involved in the project and thus there was no need to provide it with notice.   There is no support for this argument in the contract.   Nevertheless, a finding of whether the plaintiff's letters satisfied the notice provisions of the contract is not needed in light of article 8.3.1 as discussed hereinafter.   Additionally, article 4.3.10 of the AIA General Conditions, in relevant part, states that “[t]he Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract.”

FN12. The plaintiff has raised an issue as to which party has the burden of proof.   The defendant alleges the protection of the “no damages for delay” clause in its first special defense.   The plaintiff alleges active interference in count one, paragraph six of its amended complaint, filed October 28, 2011, which is an exception to the “no damages for delay” clause according to article 8.3.1 of the AIA General Conditions.“[B]ased upon a breach of contract, the burden of proof is upon the plaintiff to establish the breaches claimed.”  New England Fruit & Produce Co. v. Hines, 97 Conn. 225, 230, 116 A. 243 (1922).   Additionally, “the general rule is that a defendant who pleads a special defense bears the burden on that issue.”  National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 673, 949 A.2d 1203 (2008).   The party that invokes exceptions to the “no damages for delay” clause bears the burden of proving the exceptions.   See Dart Mechanical Corp. v. City of New York, 68 App.Div.3d 664, 664, 891 N.Y.S.2d 76 (2009);  see also Travelers Casualty & Surety Co. v. Dormitory Authority, 735 F.Sup.2d 42, 59 (S.D.N.Y.2010) (“The defendant bears the prima facie burden of establishing that the damages sought by the plaintiff are barred by the no-damage-for-delay exculpatory clause of the parties' contract ․ Part of the defendant's required showing is demonstrating prima facie that none of the exceptions to the ‘damages for delay’ clause are present ․ In proving that one of the Corinno [Civetta Construction Corporation v. New York, 67 N.Y.2d 297, 493 N.E.2d 905, 502 N.Y.S.2d 681 (1986) ] exceptions applies, the plaintiff bears a ‘heavy burden.’  “ [Citations omitted;  internal quotation marks omitted.] ).In the present case, the defendant presented no live testimony, but it relied on the exhibits in evidence as well as the testimony of the various witnesses as to the “no damages for delay” clause.   The court, therefore, finds that the defendant has met its prima facie burden of showing the damages sought by the plaintiff are precluded under the subject clause..  FN12. The plaintiff has raised an issue as to which party has the burden of proof.   The defendant alleges the protection of the “no damages for delay” clause in its first special defense.   The plaintiff alleges active interference in count one, paragraph six of its amended complaint, filed October 28, 2011, which is an exception to the “no damages for delay” clause according to article 8.3.1 of the AIA General Conditions.“[B]ased upon a breach of contract, the burden of proof is upon the plaintiff to establish the breaches claimed.”  New England Fruit & Produce Co. v. Hines, 97 Conn. 225, 230, 116 A. 243 (1922).   Additionally, “the general rule is that a defendant who pleads a special defense bears the burden on that issue.”  National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 673, 949 A.2d 1203 (2008).   The party that invokes exceptions to the “no damages for delay” clause bears the burden of proving the exceptions.   See Dart Mechanical Corp. v. City of New York, 68 App.Div.3d 664, 664, 891 N.Y.S.2d 76 (2009);  see also Travelers Casualty & Surety Co. v. Dormitory Authority, 735 F.Sup.2d 42, 59 (S.D.N.Y.2010) (“The defendant bears the prima facie burden of establishing that the damages sought by the plaintiff are barred by the no-damage-for-delay exculpatory clause of the parties' contract ․ Part of the defendant's required showing is demonstrating prima facie that none of the exceptions to the ‘damages for delay’ clause are present ․ In proving that one of the Corinno [Civetta Construction Corporation v. New York, 67 N.Y.2d 297, 493 N.E.2d 905, 502 N.Y.S.2d 681 (1986) ] exceptions applies, the plaintiff bears a ‘heavy burden.’  “ [Citations omitted;  internal quotation marks omitted.] ).In the present case, the defendant presented no live testimony, but it relied on the exhibits in evidence as well as the testimony of the various witnesses as to the “no damages for delay” clause.   The court, therefore, finds that the defendant has met its prima facie burden of showing the damages sought by the plaintiff are precluded under the subject clause.

FN13. At the post-trial argument on January 9, 2012, counsel for both sides stipulated that article 8.3.1, the “no damages for delay” clause, was an attempt by the drafter of the contract, O & G's attorney, to circumvent the White Oak exceptions..  FN13. At the post-trial argument on January 9, 2012, counsel for both sides stipulated that article 8.3.1, the “no damages for delay” clause, was an attempt by the drafter of the contract, O & G's attorney, to circumvent the White Oak exceptions.

FN14. The court notes that Crowell testified that the failure of the consultant to detect the asbestos constituted active interference..  FN14. The court notes that Crowell testified that the failure of the consultant to detect the asbestos constituted active interference.

FN15. See, e.g., Tricon Kent Co. v. Lafarge North American, Inc., 186 P.3d 155, 160 (Colo.App.2008) (concluding that there was sufficient evidence for jury to find, among other things, that defendant's actions constituted active interference because defendant failed properly to schedule, sequence and coordinate plaintiff's activities on project and ordered plaintiff to proceed with its work knowing that other contractor's work was not complete)..  FN15. See, e.g., Tricon Kent Co. v. Lafarge North American, Inc., 186 P.3d 155, 160 (Colo.App.2008) (concluding that there was sufficient evidence for jury to find, among other things, that defendant's actions constituted active interference because defendant failed properly to schedule, sequence and coordinate plaintiff's activities on project and ordered plaintiff to proceed with its work knowing that other contractor's work was not complete).

FN16. In fact, Cordeau testified that he thought about withdrawing his bid when O & G was replaced..  FN16. In fact, Cordeau testified that he thought about withdrawing his bid when O & G was replaced.

FN17. According to its senior project manager, the plaintiff made its anticipated profit..  FN17. According to its senior project manager, the plaintiff made its anticipated profit.

FN18. At the January 9, 2012 post-trial oral argument, the defendant's counsel admitted that “we just missed it.”   This court asked the parties whether the plaintiff's bid amounts were tacitly approved by the defendant when it signed the contract.   The parties submitted a joint letter, dated February 16, 2012, in the nature of an additional brief stating their respective positions as reflected above..  FN18. At the January 9, 2012 post-trial oral argument, the defendant's counsel admitted that “we just missed it.”   This court asked the parties whether the plaintiff's bid amounts were tacitly approved by the defendant when it signed the contract.   The parties submitted a joint letter, dated February 16, 2012, in the nature of an additional brief stating their respective positions as reflected above.

FN19. There is no dispute over the calculation of this amount;  there is only a dispute over whether this amount is owed..  FN19. There is no dispute over the calculation of this amount;  there is only a dispute over whether this amount is owed.

FN20. The unit of measure was determined by the National Electrical Contractors Association (NECA)..  FN20. The unit of measure was determined by the National Electrical Contractors Association (NECA).

FN21. Section 37–3a, in relevant part, provides:  “(a) Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.”.  FN21. Section 37–3a, in relevant part, provides:  “(a) Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.”

Berger, Marshall K., J.