Southern New England Contracting Co. v. State

• Decision Date: 02 January 1974
• Citation: 345 A.2d 550,165 Conn. 644
• Court: Connecticut Supreme Court
• Parties: The SOUTHERN NEW ENGLAND CONTRACTING COMPANY v. STATE of Connecticut.

Page 550

345 A.2d 550

165 Conn. 644

The SOUTHERN NEW ENGLAND CONTRACTING COMPANY v. STATE of Connecticut.

Supreme Court of Connecticut.

Jan. 2, 1974.

William J. White, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian Atty. Gen., and Gerard J. Dowling, Asst. Atty. Gen., for the appellant-appellee (defendant).

Robert E. Thorne, Hartford, with whom was Louis R. Pepe, Hartford, for the appellee-appellant (plaintiff).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The plaintiff, The Southern New England Contracting Company, by virtue of a contract dated June 26, 1964, with the state of Connecticut, acting therein by and through its commissioner of public works, was engaged as the general contractor for the construction of a new state health department laboratory building on Clinton Street in Hartford. The plaintiff brought an action for damages it claimed to have sustained as a result of certain alleged breaches of that contract by the state and the state, in turn, counterclaimed for liquidated damages for delay in completion of the building. After a trial to the court, the issues were found for the plaintiff, in part, and for the defendant, in part. The defendant has appealed from the judgment rendered and the plaintiff has cross appealed claiming error in the court's failure to include interest on certain damages awarded to the plaintiff.

The defendant, in its appeal, has assigned as error the refusal of the trial court to find the facts set forth in forty paragraphs of its draft finding, the inclusion in the finding of ten paragraphs alleged either to be contrary to the evidence or in language of doubtful meaning, or both, and of twenty-five 'conclusions' claimed to be unsupported by subordinate facts and the law. It also assigned error in the overruling of twenty-seven claims of law. The plaintiff has responded by assigning as error in the defendant's appeal the inclusion of thirty-one paragraphs of the finding alleged to have been found without evidence or in language of doubtful meaning, the trial court's failure to find facts set forth in two paragraphs of the plaintiff's draft counterfinding, and the reaching of one conclusion claimed to be unsupported by subordinate facts. We hardly need to point out how strongly this court disfavors such an unwieldy method of presenting an appeal. Pawlinski v. Allstate Ins. Co., 165 Conn., 1, 3, 327 A.2d 583. Furthermore, although certain additions and corrections to the finding are technically warranted, ¹ as is likely to be the case in any litigation as factually complex as the one at bar, their effect is largely cumulative and is not dispositive of the issues on this appeal.

The defendant, to some extent, has simplified and clarified the basis of its appeal by abandoning a number of its claims and by focusing its appeal primarily upon the following three issues: (1) the responsibility for two separate periods of delay in the completion of the building, (2) the computation of damages for the delay, and (3) the question of whether the installation of certain temperature control wiring was extra work for which the plaintiff was entitled to additional compensation. For purposes of clarity, the salient facts, as determined by the finding as corrected, will be considered in relation to these issues. A review of the general facts, however, must precede any discussion of these specific issues.

The construction project began on July 8, 1964, and the contract called for it to be completed 360 working days later on January 12, 1966. Subsequent extensions of time granted to the plaintiff by the state increased the allotted construction time by ninety-seven working days, but completion of the project nonetheless required 171 working days more than were allowed. The plaintiff subsequently sued to recover: (1) the unpaid balance on the contract, (2) excessive deductions from the contract price for the state's deletion of certain equipment, (3) the cost of labor and materials for the installation of certain electrical temperature control wiring allegedly not included in the contract, and (4) damages for the delay in completion of the contract. The judgment rendered on the last two claims has generated the issues on this appeal.

In letting this project in 1964, the state employed the 'pre-filed' bid system in that bids of the electrical, plumbing and heating subcontractors were received, opened and accepted prior to the submission of bids by interested general contractors. Each general contractor bidding was advised of the identity and contract price of the major subcontractors already accepted by the state and was obligated to incorporate the subcontractors' price into his own bid. The bidding procedure took place within the span of one month. The plans and specifications were made available on May 14, 1964, the bids of the major subcontractors opened on June 3, and the proposals of the general contractors opened on June 10. The plaintiff was selected as the general contractor and entered into the required subcontracts with the selected subcontractors.

The contract provided that certain laboratory equipment would be procured and installed by the state and was not a part of the contract work. The plaintiff was required, however, to install electrical and plumbing lines in the concrete floors, to which this not-in-contract (hereinafter NIC) equipment would be connected by the state at a later date, and which would service such items as the electric current, hot and cold water, distilled water, compressed air, gas, and sanitary waste. The terms of the contract specifically advised the general contractor that the state would provide the shop drawings showing the intended location of this equipment so that the plaintiff could locate the required plumbing and wiring 'sleeves' before pouring the concrete floors. The drawings, however, were not in existence at the time the contract was signed in June, 1964, were not available on February 3, 1965, at which time the trial court found the plaintiff was ready to pour the concrete floors, and were not actually prepared and submitted to the plaintiff until April 30, 1965, although the plaintiff had made a number of requests for the drawings, beginning as early as September 10, 1964. The trial court rejected the state's claim that the plaintiff would not have been ready to pour the concrete floors even if the NIC drawings had been available and concluded that the state's failure to provide the drawings caused a delay of three and one-half months.

The so-called temperature control wiring in this building provided the interconnection between fans, switches, and other devices and was essential to the synchronized operation of the building's heating and air conditioning system. A dispute as to the responsibility for the line voltage (120 volts or higher) portion of this wiring arose after construction began. Both the heating subcontractor and the electrical subcontractor had read their respective divisions of the state's specifications (divisions 29 and 30 respectively) to exclude the line voltage temperature control wiring from the work which they were required to do. Installation of the disputed control wiring was necessary for the proper operation of the temperature control system and the plaintiff attempted to resolve the dispute by seeking a change order from the state authorizing the electrical subcontractor to do the wiring at a fair rate of compensation. The state at first agreed to such a change order, but later refused and issued a series of orders to the plaintiff to install the wiring at its own expense. The subcontractors continued to deny responsibility for the wiring and refused to do the work without a change order. The plaintiff eventually agreed to install the wiring at its own cost under protest, the building by that time being 98 percent complete, while reserving its rights to recover from the state if it ultimately were to be determined that the temperature control wiring had not been included in the contract. The trial court subsequently found that the line voltage temperature control wiring was not included in the plans, specifications or contract price, that the state had failed to take any action to resolve the impasse that had arisen from this error, and that, in addition to the labor and material costs incurred by the plaintiff in the installation of the wiring, the state's inaction had further injured the plaintiff by delaying completion of the project for four months.

The trial court awarded damages to the plaintiff for seven and one-half months, or 150 working days, of delay. The plaintiff submitted proof of its damages through the testimony of a certified public accountant, and the trial court concluded that the computation of costs was in accordance with sound and recognized accounting principles and constituted an adequate satisfaction of the plaintiff's burden of proof. The trial court also found that the remaining twenty-one working days consumed above that which was authorized were not attributable to the state and awarded the state liquidated damages thereafter of $100 per day, as provided in the contract.

I

The defendant first argues that the court erred in concluding that the state's failure to provide the NIC shop drawings delayed the plaintiff's progress for three and one-half months. In this regard the trial court concluded that the concrete floors in the building could not be poured without the information contained in such drawings, that the steel erection, the placing and welding of floor decking had been substantially completed on February 3, 1965, that although there was some last minute preparatory work to do before the floors could be poured, the plaintiff had no incentive to complete this in the absence of the shop drawings, that if the plaintiff had had the NIC drawings on February 3, 1965, it could...