212 Conn.App. 30
Conn. App. Ct.2022Background
- The Town of New Milford owned a PCB- and asbestos-contaminated former brass mill and procured EPA approval for phased demolition and remediation; phase III required contractor sampling/disposal of contaminated materials.
- Bidders (including Standard Demolition Services) received full project documents and a bid form allowing contractors to keep scrap steel value; the Town’s bid clarifications stated the selected contractor would be responsible for PCB sampling and disposal.
- Standard won the contract, certified it had read and would comply with the EPA approval letter (which discussed potential PCB contamination of steel and required sampling/disposal procedures), and received a 140‑day contract schedule.
- Disputes arose over whether the structural steel required paint‑chip sampling and who bore characterization costs; Standard delayed, demobilized, and later refused to sample steel, claiming it was induced by the Town’s mischaracterization.
- The Town terminated Standard for default, rebid the work to Costello, incurred extra testing and change‑order costs (some driven by Standard’s later contact with the EPA), and sued Standard for breach of contract; the trial court found breach and awarded liquidated damages (reduced for statutory retainage).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court misapplied federal/state environmental law | Town: case is contract dispute; it complied with EPA approvals and disclosed prior reports | Standard: Town/approval letter failed to adequately characterize site under EPA regs and §22a‑467, so contractor couldn’t be required to perform work on undisclosed waste | Court: Declined to reach regulatory challenge (not raised below); contract unambiguously allocated characterization/sampling/disposal obligations to contractor; findings supported and affirmed |
| Whether performance was impossible | Town: impossibility was not pleaded as a special defense and thus not before the court | Standard: contract performance became impossible due to undisclosed contamination / regulatory constraints | Court: Refused to review—impossibility not pleaded as special defense; trial court made no findings on impossibility |
| Whether Town lawfully terminated contract / whether Town was in breach | Town: it performed its obligations; Standard breached and could not finish on time | Standard: Town was in default (CWP rejected) and could not lawfully terminate | Court: Implicit finding Town lawfully terminated upheld—the record supports that Standard had anticipatorily breached and could not meet time obligations |
| Effect of change orders to successor contractor (Costello) | Town: change orders responded to EPA requirements after Standard’s dismissal; do not admit Town’s original contract was unperformable | Standard: Costello change orders show Town admitted original contract required Town testing | Court: Rejected Standard’s argument—Costello change orders were driven by later EPA testing (including Standard’s own submissions) and do not prove original contract was defective |
Key Cases Cited
- CCT Communications, Inc. v. Zone Telecom, Inc., 327 Conn. 114 (contract interpretation standard; factual breach findings reviewed for clear error)
- Assn. Resources, Inc. v. Wall, 298 Conn. 145 (contract interpretation principles; give ordinary meaning to clear language)
- Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60 (liquidated‑damages principles—cannot recover both stipulated sum and actual damages for same injury)
- Holly Hill Holdings v. Lowman, 226 Conn. 748 (courts enforce bargains; cannot rewrite fair commercial contracts)
- Coppola Construction Co. v. Hoffman Enterprises Ltd. P’ship, 157 Conn. App. 139 (courts will enforce freely made contracts; parties cannot seek to rewrite terms on appeal)
- DeMattio v. Plunkett, 199 Conn. App. 693 (standard of review for damages findings; appellant’s burden to provide adequate record)