139 Conn. App. 65
Conn. App. Ct.2012Background
- Worth Construction contracted to expand Engelman Hall at SCSU for $33,497,050 with a $3,000/day liquidated damages clause for late substantial completion.
- Contract time originally 1068 days; a change order added 394 days, totaling 1462 days to June 12, 2005.
- Plaintiff achieved substantial completion on August 25, 2005, 74 days late.
- Defendant notified plaintiff on October 17, 2005 that damages may be assessed for delay beyond June 12, 2005.
- Daigle prepared field reports miscalculating total days (stating 1552 instead of 1462) and recommended no liquidated damages; Jellison’s letter later notified damages.
- Trial court found no waiver by defendant; defendant prevailed on its liquidated damages counterclaim; plaintiff appeals on waiver grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of liquidated damages requires knowledge and intentional relinquishment | Daigle’s miscalculation shows denial of damages; waiver occurred | Daigle lacked knowledge of damages right; no waiver | Waiver not clearly erroneous; no intelligent waiver shown |
| Does Daigle’s mistaken calculation preclude waiver under case law | Mistake invalidates claim of waiver | Mistake did not prove intent to relinquish rights | Court distinguished Jenkins and held no waiver due to lack of knowledge and intentionality |
Key Cases Cited
- AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617 (2005) (waiver as a factual question; knowing right required)
- Lehn v. Marconi Builders, LLC, 120 Conn. App. 459 (2010) (standard of review for waiver findings)
- Gordon v. Tobias, 262 Conn. 844 (2003) (clear-error review; defer to trial court on factual inferences)
- Krevis v. Bridgeport, 262 Conn. 813 (2003) (waiver requires intelligent action considering context)
- Rosenthal v. State Bar Examining Committee, 116 Conn. 409 (1933) (waiver must be intentional, not based on mistake of fact)
- Jenkins v. Indemnity Ins. Co., 152 Conn. 249 (1964) (distinguishes knowledge of a potential claim from certainty of its correctness)
- Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1 (2009 (cert. denied)) (consideration of conduct in waiver analysis)
- New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378 (1996) (contractual rights; waiver/estoppel relevance)
- Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185 (1992) (assent requires knowledge of rights; not mere acquiescence)