207 Conn.App. 551
Conn. App. Ct.2021Background:
- NJR (general contractor) contracted with the DOT to replace a bridge with an 8‑week detour; DOT contract paid $3,000/day incentive (max $60,000) for early reopening and imposed $3,000/day disincentives for delay. NJR triggered the detour by closing the bridge June 13, 2016.
- United Concrete (subcontractor) agreed to furnish ten prestressed deck beams for $244,672.50, with delivery required “on or before June 7, 2016” and a “time is of the essence” clause. NJR later scheduled delivery for June 29 based on supplier representations.
- United Cement failed multiple pours; it notified NJR two days before the June 29 shipment that beams would not be ready. Beams were delivered July 26; project finished August 31. NJR paid part of the subcontract then withheld the balance.
- United sued NJR and surety Aegis under contract and the Little Miller Act (§§ 49‑41a, 49‑42). NJR counterclaimed for breach and CUTPA; trial court found United materially breached but had its UCC claim allowed because NJR accepted the goods; awarded United the contract balance, denied § 49‑41a relief, awarded NJR damages, attorney’s fees under the subcontract, and found a CUTPA violation. The trial court also ruled for Aegis on the bond claim.
- On appeal this court affirmed most rulings but reversed only the trial court’s judgment for Aegis under § 49‑42, holding the surety’s liability under the payment bond is not conditioned on United’s § 49‑41a entitlement to interest/fees and remanded count three for a new trial.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper start date for NJR’s damages (June 7 vs June 29) / inclusion of lost incentive | June 29 was the operative delivery date NJR requested; use of June 7 inflated damages and incorrectly included $60,000 incentive | Subcontract required beams to be ready by June 7; scheduling June 29 did not relieve supplier; even if June 29 used, NJR could have earned the incentive | Using June 7 was not clearly erroneous; court’s timeline (worst‑case 36 days) supports inclusion of incentive; alternative harmlessness also shown |
| Failure to mitigate (NJR accelerating after July 26 delivery) | NJR should have accelerated work after beams arrived to reduce disincentive damages | NJR reasonably abandoned fast‑track once incentive was lost; acceleration would have been unrecoverable and imprudent | Trial court’s finding that NJR reasonably mitigated was supported by evidence; no failure to mitigate |
| Liability of surety Aegis under payment bond (§ 49‑42) | Aegis is liable for unpaid balance notwithstanding trial court’s denial of § 49‑41a interest/fees | Trial court treated bond claim as dependent on § 49‑41a substantial performance finding and denied it | Reversed as to Aegis: bond and § 49‑42 enforcement are distinct; surety is jointly/severally liable for amounts principal owes unless a statutory defense applies; remand for new trial on bond claim |
| Award of interest and attorney’s fees to subcontractor under § 49‑41a | United says NJR waived “time is of the essence,” so United substantially performed and is entitled to § 49‑41a relief | NJR says United materially breached and the § 49‑41a fees/interest are properly denied; waiver argument not raised at trial | Appellate court declined to reach waiver argument raised first on appeal; trial court’s denial stands |
| CUTPA liability and NJR’s contractual attorney’s fees award | United: its conduct was a mere breach, no aggravating conduct to support CUTPA; and NJR did not incur fees from a supplier default | NJR: supplier made knowingly false assurances, causing extra expense and preventing remediation; subcontract expressly allows recovery of fees for supplier default | CUTPA finding affirmed (misrepresentations were immoral/unscrupulous and caused ascertainable loss); award of attorney’s fees under the subcontract affirmed (contract language permits recovery for supplier’s failure of promptness/diligence) |
Key Cases Cited
- Bernstein v. Nemeyer, 213 Conn. 665 (Conn. 1990) (material breach excuses nonbreaching party’s performance)
- Connecticut Light & Power Co. v. Proctor, 324 Conn. 245 (Conn. 2016) (standard of review for factual findings)
- Sun Val, LLC v. Commissioner of Transportation, 330 Conn. 316 (Conn. 2018) (mitigation duty; reasonableness is factual)
- Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708 (Conn. 1997) (Little Miller Act is remedial; separate remedies under §§ 49‑41a and 49‑42)
- Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468 (Conn. 1988) (statutory notice under § 49‑41a not a prerequisite to suit under § 49‑42)
- Joseph Gen. Contracting, Inc. v. Couto, 317 Conn. 565 (Conn. 2015) (contract interpretation principles and ambiguity)
- Harris v. Bradley Memorial Hospital & Health Ctr., Inc., 296 Conn. 315 (Conn. 2010) (CUTPA unfairness criteria)
- Ledyard v. WMS Gaming, Inc., 330 Conn. 75 (Conn. 2018) (distinction between final judgment and supplemental attorney’s fee awards)