Walter Kidde Constructors, Inc. v. State, 210983
| Decision Date | 30 March 1981 |
| Docket Number | No. 210983,210983 |
| Citation | 434 A.2d 962,37 Conn.Supp. 50 |
| Court | Connecticut Superior Court |
| Parties | WALTER KIDDE CONSTRUCTORS, INC., et al. v. STATE of Connecticut. Hartford-New Britain |
Alcorn, Bakewell & Smith, Hartford, for plaintiffs.
Carl R. Ajello, Atty. Gen., Harry W. Hultgren, Asst. Atty. Gen. and Richard M. Feingold, Sp. Asst. Atty. Gen., for defendant.
HOUSE, Judge, State Referee.
The plaintiffs in this action, hereinafter referred to as Kidde-Briscoe, formed a joint venture consisting of two large construction contractors who combined to bid for the construction of the state hospital and outpatient clinic buildings which together with the medical and dental schools comprise the Connecticut health center located in Farmington. Kidde-Briscoe submitted the only bid for the construction of the hospital and outpatient buildings of the complex and on January 7, 1969 was awarded the contract to construct those buildings for the finally negotiated sum of $35,784,737.77.
The buildings which comprise the health center are curvilinear in shape, completely surrounding a center courtyard. When the contract was awarded to Kidde-Briscoe to build the hospital and outpatient portions to the health center the state had previously let to another contractor, Lasker-Goldman, a contract to build the medical-dental school portion of the complex around the opposite side of the courtyard. That contract had been let in 1967 and Lasker-Goldman was still engaged in that construction.
Kidde-Briscoe started construction in March 1969 with the expectation that it would be completed in 1100 days, ending March 6, 1972. The contract provided that in the event construction should not be completed within the 1100 days, Kidde-Briscoe would be liable for a penalty of $2500 for each day that construction ran beyond the 1100 days. As it turned out, construction required more than 1977 days and the project was not substantially completed until August 9, 1974. What happened during that period is what gave rise to the present action in which the plaintiffs seek damages of $40,000,000.
On August 6, 1976, Kidde-Briscoe, pursuant to the provisions of § 4-61 of the General Statutes, filed a notice of claim with the state declaring its intention to bring suit for damages suffered as a result of the conduct of the state during performance of the building contract. This notice was followed by the writ, summons and complaint filed in the present action, dated April 27, 1977. As amended by a substituted complaint in 21 counts the complaint alleged in the first 12 counts that Kidde-Briscoe and its subcontractors were damaged by the state's breaches of its contract, by the state's improper retention of security which Kidde-Briscoe had posted for the proper performance of the contract, by the state's failure to pay for extra and additional work performed at the state's direction over and above that required by the contract, plans and specifications and, especially, by the state's delay in making payments due as the work progressed, by the state's failure to deliver to Kidde-Briscoe the construction site and give it access to the site for an unreasonably long period of time beyond the date on which Kidde-Briscoe was required by the contract to commence work, by providing Kidde-Briscoe and its subcontractors with defective, inadequate and incomplete plans and specifications, by issuing "hold orders" which remained in effect for inordinately long periods of time, thereby delaying and disrupting the progress of the work, by failing to process change order proposals in a prompt and timely manner, by permitting interference with Kidde-Briscoe's work by the general contractor who was erecting the medical- dental building, by unreasonably and improperly ordering acceleration of Kidde-Briscoe's work schedule, by failure to approve shop drawings in a timely manner, by unreasonably and improperly forcing Kidde-Briscoe to perform work out of sequence, and by failure to make reasonable and timely inspections and reasonable efforts promptly to resolve disputes.
In counts 13 through 20 the complaint alleged that as to the subcontractor named in the particular count that subcontractor had filed a claim against Kidde-Briscoe in a specified amount for damages due that subcontractor for the state's breaches of the contract as alleged by Kidde-Briscoe in the preceding counts, that Kidde-Briscoe was liable to the subcontractor for that sum and there was due Kidde-Briscoe from the state for itself and on behalf of the subcontractor the specified amount plus the overhead and profit due Kidde-Briscoe under the contract.
The 21st count of the substituted complaint repeated the plaintiff's basic claim, predicated on the theory of quantum meruit.
By way of answer to the substituted complaint the state denied any improper conduct on its part and any liability to Kidde-Briscoe or the subcontractors. By way of special defenses the state pleaded a defense of sovereign immunity to the quantum meruit count and the counts regarding the claims of the 8 named subcontractors on the grounds that they were not "disputed claims" under the contract and hence not claims proper to be determined under the provisions of General Statutes § 4-61, that there are no provisions in the contract or in § 4-61 permitting a claim for breach of contract as alleged by Kidde-Briscoe in the 12th count, that, as to the counts regarding the 8 subcontractors, the state had no liability as to those subcontractors who were not parties to the contract with the state and who had signed lien waivers waiving all liens and claims against the state, "its premises and property and against the Contractor," and had signed agreements with Kidde-Briscoe which released Kidde-Briscoe from all claims and demands except the obligation to prosecute the subcontractor's claim against the state and pay over to the subcontractor such money as Kidde-Briscoe might recover, retaining a portion to reimburse them for the submission and prosecution of the claim and Kidde-Briscoe's contract percentage of overhead and profit. By way of an 11th special defense the state pleaded that the contract between itself and Kidde-Briscoe "has remained in full force and effect from its execution until the present time." A 12th special defense In addition to the answer and special defenses the state also filed a counterclaim in which it listed 54 change orders totaling $571,454.59 which the state had paid to Kidde-Briscoe on Kidde-Briscoe's claim for specific work and materials furnished over and above the contract requirements, because of job conditions, errors and omissions in the plans and specifications and changes in the work. Although each change order was approved for payment by the commissioner of public works, the counterclaim alleges that none of the payments should have been made because the payments in fact involved disputed claims which required, in each instance, the approval of the attorney general before payment and, furthermore, did not in fact involve extra and additional work for which additional compensation was required to be paid. The counterclaim sought repayment on the ground that Kidde-Briscoe was unjustly enriched by the payments.
pleaded that all the damages alleged by the plaintiffs were due to Kidde-Briscoe's failure to exercise reasonable judgment and expertise in carrying out the contract. A 13th special defense alleged in substance that Kidde-Briscoe assumed the risk that Lasker-Goldman would not vacate the work site but would continue to occupy and use portions of it. A 14th special defense alleged that articles 25 and 26 of the general conditions of the contract and article 39(c) of the supplementary general conditions provide for the rendering of decisions and interpretations concerning the contract documents and the performance of work and that such interpretations and decisions must be obtained in writing before the contractor could make a claim and that since the complaint did not allege compliance with these requirements the causes of action as alleged in the complaint "are premature and not properly before this Court."
In response to the pleadings of the state, Kidde-Briscoe denied each of the material allegations of the state's 14 special defenses and the allegations of the counterclaim, and to the counterclaim pleaded 6 special defenses including estoppel on the basis of the approval by the commissioner of public works or his authorized agent for payment of each item listed, that payments were made pursuant to the provisions of the basic contract, accord and satisfaction, the statute of limitations and release and waiver.
The foregoing brief summary of the pleadings on which the parties finally reached readiness for trial after exhaustive discovery, disclosure and deposition-taking is an indication of the multitude of complex and contested issues to be resolved by trial. The parties agreed upon referring the case to a state referee and it was referred to the undersigned referee for hearing and judgment. The trial required 113 trial days over a 13-month period, involved the testimony of 44 witnesses recorded in 16,015 pages of transcript and the admission into evidence of 1395 numbered exhibits many of which were further subnumbered or sublettered or marked by the containing box.
Without attempting to discuss every one of the multitude of questions, issues and arguments involved in the trial, this memorandum of decision will attempt to articulate the basis of the decision reached as to the controlling and decisive factual and legal issues involved and the conclusions reached as to the claims of law raised by the parties. (Practice Book § 3060B.)
Hindsight indicates that the genesis of many of the problems giving rise to this controversy was the passage in 1963 of Special Act 362 which authorized the issuance of bonds for the construction of a medical-dental school. The...
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