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Appellate Court Notes:  Week of April 10

Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion.. Pullman & Comley’s Appellate Practice Group of which I am a member includes experienced appellate advocates in almost every area of the law.  Should you have a need to consult about a potential appeal,  please email me at emccreery@pullcom.com I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted April 10, 2015

Holding that a separation agreement that requires the payment of unallocated alimony and child support ‘‘until the …. [w]ife’s remarriage or cohabitation as defined by ….. § 46b- 86 (b),’’…terminates the support obligation permanently upon the wife’s cohabitation.  Thus when the wife broke up with her new boyfriend after only four months, she could not seek to get the alimony payments resumed.   Oops.

  • SC19346     - Old Colony Construction, LLC v. Southington

Contractor/plaintiff was the successful low bidder for a municipal pump station at about $900,000.  The executed contract provided: the contractor had reviewed and tested all site conditions; that time was of the essence; a completion deadline with late penalties; and restrictive change order protocols with extensions of the completion date only allowed if beyond contractor’s control.  Contractor’s late start triggered delays from the outset and the town agreed to one extension of the deadline, but the project was further delayed when the contractor discovered several unanticipated site problems.  The site engineer agreed to some change orders for the added costs of some of these problems, but the town explicitly stated it was not extending the completion deadline further.  A formal request for extension was never filed.  Due to the constant delays, the disgruntled town exercised its right to “terminate for convenience.”  Having been paid about $600,000 up to this point that contractor demanded a change order for an additional $900,000 due to delay costs.  The town refused and the contractor sued for the balance due under contract, termination costs, and an equitable adjustment for the delay damages. The town counterclaimed for the daily liquidated damage penalties from the time of the extended completion date to the date of termination.

Held: The contract provided the town could terminate it without cause and without prejudice to any other right or remedy.  Therefore the town’s exercise of the termination provision did not act as an estoppel against its ability to claim delay damages.  The law is unsettled whether a party may claim “cause damages” after “termination without cause.”  But even if that rule applied here in Connecticut, it does not apply to the running of liquidated damages up to a no-cause termination.  As a general rule the consequences of “termination” are prospective only. 

The contractor had failed to follow the strict protocols for seeking change orders for the completion deadline so it was not entitled to delay damages.  The "abrogation rule” that might otherwise extend a deadline had the town been partially at fault for the delays, does not apply when the contract had a mechanism to seek an extension of the completion date.  Thus the parties had effectively “contracted away” the risk of the  “abrogation rule” which itself is falling out of favor in lieu of an “equitable allocation of fault” rule when it does apply to situations where both parties are at fault for the delays.   

This decision also held that approval of certain change orders did not carry with them an inherent approval of the deadline to complete the overall project.  The “equitable adjustment” to contract doctrine did not apply either.  This is a doctrine that is meant to make a contractor whole when the government changes the deal.  It does not apply to a contractor who did not discover below site conditions, nor to situations where the contract already had a mechanism to seek adjustments in the completion deadline, but the contractor simply failed to follow them. 

In the end, the contractor was properly allowed $165,000 for completed work, work in progress, and termination costs.  The town was then properly entitled to an offset of that award by a $300,000 award in its favor for a liquidated daily delay fine.

  

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  Copyright 2015 Pullman & Comley, LLC. All Rights Reserved.

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