J. Wm. Foley, Inc. v. United Illuminating Co.
158 Conn.App. 27
Conn. App. Ct.2015Background
- Foley bid $43,344,000 to perform trenching, duct banks, and splice chambers; contract dated Sept 29, 2006; Article 6 governs change orders and a ten‑business‑day notice for delay claims; unknown site conditions entitle Foley to compensation for delays; project involved 69 miles of line with a 6‑mile trench through congested areas; construction delays stemmed from unknown utilities, soil conditions, and Foley/Manafort/Rizzo performance issues; August 2007 United letter modified change‑order process distinguishing direct costs/crew delays from critical path delays and did not waive ten‑day rule; Foley submitted its first essential critical path delay analysis in 2012, well after project completion; trial court found Foley irrevocably waived its delay claim and entered judgment for United on the delay claim; Foley received only three successful change orders and denied prejudgment and retainage interest, CUTPA, negligence, and leave to amend were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ten‑day rule applies to critical path delay claims | Foley argues ten‑day rule may not apply to CP delays | United contends CP delay claims fall within ten‑day rule | Yes, ten‑day rule applies to CP delays |
| Whether United waived the ten‑day requirement | Foley asserts August 2007 letter waived notice | United did not intend to waive rights; letter preserved rights | No waiver; ten‑day rule remains in effect |
| Whether Foley is entitled to a 10% markup on settlement payments | Markup provision covers settlements | Markup applies to change orders only; settlements not covered | Foley not entitled to markup on settlement payments |
| Whether prejudgment interest under § 37‑3a and retainage interest under § 42‑158j should be awarded | Foley seeks prejudgment and retainage interest | Court is discretionarily justified to withhold interest | No prejudgment or retainage interest awarded |
| Whether negligence and CUTPA claims were properly rejected and leave to amend denied | Foley contends additional tort/CUTPA claims exist | Claims lack duty/standard of care and fail relation back; amendment denied | Negligence and CUTPA claims rejected; leave to amend denied |
Key Cases Cited
- Warning Lights & Scaffold Service, Inc. v. O&G Indus., Inc., 102 Conn. App. 267 (Conn. App. 2007) (damages proof and breach of contract standards; appellate review)
- Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1 (2007) (contract interpretation; give effect to all provisions)
- Texaco, Inc. v. Rogow, 150 Conn. 401 (1963) (reading contract terms by implication not allowed unless necessary)
- Sherman v. Ronco, 294 Conn. 548 (2010) (relation back doctrine; new and different factual situations not relate back)
- Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745 (2006) (relation back and statute of limitations considerations)
- Grenier v. Commissioner of Transportation, 306 Conn. 523 (2012) (amendment timing and relation to prior pleading; discretion)
- Ruiz v. Gatling, 73 Conn. App. 574 (2002) (credibility findings; appellate deference to trial court)
- Centimark Corp. v. Village Manor Assocs. Ltd. P’ship, 113 Conn. App. 509 (2009) (CUTPA review; standard of review and evidence sufficiency)