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C AND H ELECTRIC, INC. v. TOWN OF BETHEL
(SC 19162)
Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js.
Argued March 19—officially released August 5, 2014
Jeffrey J. White, with whom, on the brief, were Greg-
ory R. Faulkner and Elizabeth K. Wright, for the appel-
lant (plaintiff).
Benjamin B. Manchak, with whom were Joshua A.
Hawks-Ladds and, on the brief, Richard C. Robinson,
for the appellee (defendant).
Opinion
ROBINSON, J. This appeal requires us to consider
whether a property owner’s conduct constituted ‘‘active
interference’’ for purposes of an exception to a ‘‘no
damages for delay’’ clause in a construction contract,
which otherwise would preclude a contractor from
recovering additional costs for delays caused by the
owner, instead giving a contractor additional time to
complete the job. The plaintiff, C & H Electric, Inc.,
appeals1 from the judgment of the trial court in part
for the defendant, the town of Bethel (town), on the
plaintiff’s claims of breach of contract and unjust
enrichment arising from the plaintiff’s role in the town’s
renovation of its high school.2 The trial court rejected
the plaintiff’s claim that the town must reimburse it for
additional costs incurred during its electrical work due
to interference from the town’s ongoing asbestos abate-
ment work at the school. On appeal, the plaintiff insists
that the trial court: (1) applied an improper standard
for determining ‘‘active interference,’’ arguing that it
needed to show only an affirmative, wilful act by the
town that unreasonably interfered with the plaintiff’s
work, rather than bad faith or gross negligence as the
trial court required; and (2) incorrectly concluded that
the town’s conduct did not fall within either of two
judicially created exceptions to the enforcement of ‘‘no
damages for delay’’ clauses adopted by this court in
White Oak Corp. v. Dept. of Transportation, 217 Conn.
281, 289, 585 A.2d 1199 (1991) (White Oak).
We agree with the plaintiff that it need not show bad
faith or gross negligence to establish active interfer-
ence, but conclude that the town’s conduct in this case
did not rise to the level of active interference or fall
within either of the claimed White Oak exceptions. We
therefore agree with the trial court’s decision that the
plaintiff is not entitled to compensation under any of
the ‘‘no damages for delay’’ exceptions at issue here.
Accordingly, we affirm the trial court’s judgment.
The record reveals the following facts, as stipulated
by the parties or found by the trial court, and relevant
procedural history. The town originally built the school
in the 1960s and later expanded it in the 1970s. Consis-
tent with typical construction practices of that era, the
town installed significant quantities of materials that
contained asbestos during those projects. The town
abated some of these materials during renovations in
the 1980s, but left some in place because its contractors
had difficulty reaching them at that time. According to
an environmental consultant later hired by the town,
this was ‘‘not an uncommon condition.’’
Several years later, in 2004, the town decided to reno-
vate and expand the school by updating the existing
structure and building a large addition. Before begin-
ning construction, the town hired an environmental
consultant to look for hazardous materials within the
school, including asbestos. The consultant discovered
some of the asbestos left behind in the existing building
during the earlier renovations and recommended that
the town remove it before beginning the renovation
project. The town hired an abatement contractor to
perform the removal work. The town expected the
abatement contractor to complete its work during the
summer of 2006, before the start of classes in the fall
of 2006, and before any new construction, which was
slated to begin in early 2007. In a July, 2006 letter to the
town’s Board of Selectmen, the town’s school building
committee chairperson explained: ‘‘[W]e are addressing
[the asbestos abatement] now and not during the actual
construction phase, which would have complicated our
project and more than likely would have added signifi-
cant costs.’’
For reasons not clear from the record, the abatement
contractor completed just 70 percent of the abatement
work during that summer before students returned for
the 2006–2007 school year. The town suspended the
abatement work before the start of classes, choosing
instead to complete the remaining 30 percent of the
work later in the year and over the following summer.
In an August, 2006 letter to the town’s first selectman,
the town’s environmental consultant explained: ‘‘The
work that did not get completed this year was the
removal of the locker banks and cleaning of the corridor
ceilings on the first and second floors. Leaving these
areas will not immediately affect the new construction
work . . . .’’
Although the town had yet to complete the abate-
ment, it chose to move forward with the construction.
Through its construction manager, the town initially
opened the project for bidding at the end of the summer
of 2006, but later asked contractors to hold their bids
open for two additional months so that the town could
seek additional financing for the project. The plaintiff
held its bid open and, after lengthy negotiations, con-
tracted with the town to perform the project’s electrical
work for a price of more than three million dollars.
The parties’ contract contained a ‘‘no damages for
delay’’ clause limiting the town’s liability for any delays
caused by the town. An addendum to the contract pro-
vided in relevant part: ‘‘Notwithstanding anything to the
contrary in the [contract], an extension in the [time to
complete the work] shall be the sole remedy of [the
plaintiff] for any (1) delay in the commencement, prose-
cution or completion of the work, (2) hindrance or
obstruction in the performance of the work, (3) loss of
productivity, or (4) other similar claims whether or not
such delays are foreseeable, contemplated, or uncon-
templated . . . .’’
The parties included a single exception to this ‘‘no
damages for delay’’ clause, expressly excluding from
its scope any claims for ‘‘a [d]elay . . . caused by acts
of the [town] constituting active interference with [the
plaintiff’s] performance of the [w]ork . . . .’’ (Empha-
sis added.) The exception explained that the town
would be liable for delay damages resulting from the
town’s active interference only if ‘‘such acts continue
after [the plaintiff] furnishes the [town] with written
notice of such interference.’’ The contract did not define
the phrase ‘‘active interference’’ but explained that the
town’s ‘‘exercise of any of its rights or remedies under
the [contract] (including without limitation, ordering
changes in the work, or directing suspension, reschedul-
ing or correction of the work), regardless of the extent
or frequency of the [town’s] exercise of such rights or
remedies, shall not be construed as active interference
with [the plaintiff’s] performance of the work.’’
Before entering into the contract with the plaintiff,
the town openly discussed the delay in completing the
abatement work at a number of public meetings, but
did not directly inform the plaintiff. As part of the bid
materials, the town provided the plaintiff with drawings
indicating the location of asbestos within the existing
school building, but the original schedule provided to
bidders indicated that abatement would be completed
before any construction began. The town did not revise
the project specifications to reflect that about 30 per-
cent of the abatement work remained incomplete. The
town also did not discuss the progress of the abatement
during contract negotiations with the plaintiff and the
plaintiff did not ask about it. Instead, the plaintiff
assumed this work would be completed prior to the
start of construction. According to the trial court, the
plaintiff’s president ‘‘did not pay a lot of attention to the
bid terms’’ because the plaintiff previously had worked
with the town’s construction manager many times. In
addition, the plaintiff’s senior project manager ‘‘admit-
ted that there was a risk that more asbestos might be
found than was originally identified by [the] asbestos
consultant,’’ but he ‘‘never examined the [asbestos]
drawings in detail to see where the asbestos [was
located] because [he] did not care.’’
The town instructed the plaintiff to commence work
in February, 2007. The work went on as planned until
the summer of 2007, when the continuing asbestos
abatement work interrupted the plaintiff’s work. The
town’s abatement contractor barred access to certain
areas of the school building during the abatement. This
required the plaintiff to move its crews and equipment
to different work areas and repeatedly return to certain
work areas as the abatement proceeded. Despite these
interruptions, the plaintiff completed its work just
about on time, but claims it incurred extra expenses
as a result.3
After completing its work in 2009, the plaintiff pre-
sented the town with a claim for additional compensa-
tion. After the town failed to pay on that claim, the
plaintiff brought the present action alleging breach of
contract and unjust enrichment. The plaintiff asserted
that the town owed it more money as a result of the
effect of the unfinished abatement work on the plain-
tiff’s work during the summer of 2007. To avoid applica-
tion of the ‘‘no damages for delay’’ clause in the contract,
the plaintiff claimed, among other things, that the town
knew the ongoing asbestos abatement work would
interfere with construction, but nevertheless ordered
the plaintiff to begin its work. In support of its claims,
the plaintiff asserted that it need only prove that the
town committed some affirmative, wilful act that unrea-
sonably interfered with its work, and that the town’s
actions fell within this standard because the town
actively concealed from the plaintiff the delay in the
asbestos abatement work. In addition, the plaintiff
argued that the town’s concealment and failure to pro-
vide the plaintiff unfettered access to its work sites fell
within exceptions to ‘‘no damages for delay’’ clauses
articulated in White Oak Corp. v. Dept. of Transporta-
tion, supra, 217 Conn. 289.
The town disagreed, responding that the plaintiff had
failed to prove that the town’s conduct fell within any
exception to the contract’s ‘‘no damages for delay’’
clause. According to the town, the active interference
exception required the plaintiff to show bad faith, wilful,
malicious, or grossly negligent conduct by the town,
and its conduct did not reach this level. As for the
plaintiff’s claim of concealment, the town noted that it
regularly discussed the progress of the asbestos abate-
ment openly in public meetings, and that its retention
of asbestos contractors was public information. Fur-
thermore, the town maintained that other contractors,
not the town, were responsible for any delay from the
remaining abatement work, and that the town was not
aware that the remaining abatement work would inter-
fere with construction.
After a court trial with some testimony from the plain-
tiff’s witnesses and many stipulated facts, the trial court
found in favor of the town on the plaintiff’s active inter-
ference and White Oak claims. In its memorandum of
decision, the trial court concluded that the active inter-
ference exception to the ‘‘no damages for delay’’ clause
required a showing of bad faith, malicious intent, or
gross negligence, equating this exception with the bad
faith exception articulated in White Oak. Id., 289.
Applying this standard, the trial court concluded that
the town did not actively interfere with the plaintiff’s
work and that the delay in the abatement work was
caused by the town’s contractors, not the town. The
court found that the town did not conceal the unfinished
abatement work because it openly discussed the issue
at public meetings that the plaintiff could have attended,
but did not. The trial court also determined that any
alleged concealment by the town did not harm the plain-
tiff because the plaintiff’s representatives testified that
they did not pay close attention to the supposedly inac-
curate contract documents and, in any event, the plain-
tiff completed its work on time.4 The trial court then
rendered judgment for the town in part. See footnote
2 of this opinion. This appeal followed.
On appeal, the plaintiff claims that the trial court
improperly concluded that the town’s conduct did not
meet: (1) the active interference exception to the con-
tract’s ‘‘no damages for delay’’ clause; and (2) the excep-
tions to ‘‘no damages for delay’’ clauses for bad faith
or breach of a fundamental contractual obligation as
set forth in White Oak Corp. v. Dept. of Transportation,
supra, 217 Conn. 289. We address each claim in turn.
I
ACTIVE INTERFERENCE
The plaintiff first claims that the trial court improp-
erly concluded that the town’s conduct did not satisfy
the contract’s active interference exception. The plain-
tiff relies on recent case law from other jurisdictions
and argues that the trial court improperly concluded
that the active interference exception required proof
of bad faith or gross negligence.5 Instead, the plaintiff
posits that the plain meaning of the phrase ‘‘active inter-
ference’’ does not connote wrongdoing, but only that
the owner must engage in some affirmative, wilful act
that unreasonably interferes with the contractor. The
plaintiff directs us to the trend in cases from other
jurisdictions that support its interpretation. Using this
standard, the plaintiff maintains on appeal, as it did at
trial, that the town’s decision to order the plaintiff to
commence work, despite its knowledge that the
remaining asbestos work would interfere with construc-
tion, amounted to active interference. Alternatively, the
plaintiff claims that the town actively interfered by fail-
ing properly to coordinate its contractors, leaving the
asbestos work to interfere with the plaintiff’s work.
The town disagrees, asserting, in response, that the
trial court’s conclusions about the standard of conduct
required to prove active interference, along with its
application of that standard to the facts of the present
case, were legally correct. More specifically, the town
relies on cases from other jurisdictions and argues that
courts have interpreted ‘‘active interference,’’ as used
in this context, to require a showing of bad faith, and
that the drafter of the contract at issue here intended
for that definition to apply.6 According to the town,
the cases cited by the plaintiff are a minority position,
generally adopted by jurisdictions that recognize both
a ‘‘bad faith’’ and an ‘‘active interference’’ exception to
‘‘no damages for delay’’ clauses in construction con-
tracts. Here, the town explains, Connecticut has no
separate, judicially created active interference excep-
tion, so the trial court properly determined active inter-
ference exception in the contract to be synonymous
with the ‘‘bad faith’’ exception that we adopted in White
Oak Corp. v. Dept. of Transportation, supra, 217 Conn.
289–90, which requires a showing of ‘‘bad faith, wilful,
malicious, or grossly negligent conduct.’’ In any event,
the town maintains that the plaintiff failed to meet its
burden under either standard.
We conclude that the trial court properly determined
that the town did not actively interfere with the plain-
tiff’s work. First, we agree with the plaintiff that ‘‘active
interference,’’ as used in the contract, does not require
a showing of bad faith or gross negligence, but, instead,
only that the town committed some affirmative, wilful
act that unreasonably interfered with the plaintiff’s
work. Second, because the record shows that no evi-
dence was presented that the town’s representatives
actually knew that the unfinished abatement work
would interfere with the plaintiff’s work, we conclude
that the town’s alleged interference was neither wilful
nor unreasonable.
A
Active Interference Standard
We turn first to the meaning of ‘‘active interference’’
as used in the parties’ contract. We have previously
established the principles employed by this court when
determining the meaning of contract language. See, e.g.,
Murtha v. Hartford, 303 Conn. 1, 7–8, 35 A.3d 177 (2011).
We need not repeat our prior recitations of those princi-
ples here, in full. It suffices to say that we first attempt
to ascertain the parties’ intent from the language they
used in their contract, looking at the contract as a whole
and giving the contract’s words their ordinary meaning
and one that renders its provisions consistent. Id. Only
if the language in the contract is truly capable of more
than one reasonable interpretation will we look to evi-
dence beyond the contract language for guidance as to
what the parties intended. Id. Interpretation of unambig-
uous contract language presents a question of law. FCM
Group, Inc. v. Miller, 300 Conn. 774, 811, 17 A.3d 40
(2011). We review the trial court’s conclusions based
on any stipulated fact as a question of law, but defer
to any findings of nonstipulated or disputed facts unless
those findings are clearly erroneous. Compare 418
Meadow Street Associates, LLC v. Clean Air Partners,
LLC, 304 Conn. 820, 829–30, 43 A.3d 607 (2012), with
Connecticut Light & Power Co. v. Dept. of Public Utility
Control, 219 Conn. 51, 62, 591 A.2d 1231 (1991).
Our analysis begins with the contract language. The
parties’ contract contains provisions prohibiting the
plaintiff from seeking damages for any delays caused
by the town. These so-called ‘‘no damage for delay’’
clauses frequently appear in construction contracts.
Their purpose is to shield property owners from claims
by contractors for money damages when delays occur
on the job, leaving contractors the sole remedy of seek-
ing an extension of time to complete their work. These
clauses are generally enforceable subject to certain judi-
cially created exceptions. See FCM Group, Inc. v.
Miller, supra, 300 Conn. 812–13; White Oak Corp. v.
Dept. of Transportation, supra, 217 Conn. 289.
In White Oak, we adopted four common-law excep-
tions to enforcement of these clauses, permitting con-
tractors to seek damages for: ‘‘(1) delays caused by the
[owner’s] bad faith or its [wilful], malicious, or grossly
negligent conduct, (2) uncontemplated delays, (3)
delays so unreasonable that they constitute an inten-
tional abandonment of the contract by the [owner],
and (4) delays resulting from the [owner’s] breach of
a fundamental obligation of the contract.’’ (Internal quo-
tation marks omitted.) White Oak Corp. v. Dept. of
Transportation, supra, 217 Conn. 289, quoting Corrino
Civetta Construction Corp. v. New York, 67 N.Y.2d 297,
309, 493 N.E.2d 905, 502 N.Y.S.2d 681 (1986). These
exceptions are rooted in the duty of good faith and fair
dealing implied in every contract and are intended to
avoid the otherwise draconian results that might flow
from strict enforcement—namely, excusing the owner
for harm to the contractor caused by the owner’s egre-
gious and unfair conduct. See, e.g., Kalisch-Jarcho, Inc.
v. New York, 58 N.Y.2d 377, 384–85, 448 N.E.2d 413,
461 N.Y.S.2d 746 (1983); United States ex rel. Williams
Electric Co. v. Metric Constructors, Inc., 325 S.C. 129,
133–34, 480 S.E.2d 447 (1997); cf. White Oak Corp. v.
Dept. of Transportation, supra, 289.
Apart from the White Oak exceptions, the parties’
contract here included a single, express exception per-
mitting the plaintiff to seek damages caused by a delay
in the construction, if that ‘‘[d]elay is caused by acts
of [the town], constituting active interference with [the
plaintiff’s] performance of the [w]ork . . . .’’ The par-
ties did not define what they meant by ‘‘active interfer-
ence,’’ but did carve out certain conduct from its
meaning. According to the contract, ‘‘the [town’s] exer-
cise of any of its rights or remedies under the [contract]
[d]ocuments (including without limitation, ordering
changes in the work, or directing suspension, reschedul-
ing or correction of the work), regardless of the extent
or frequency of the [town’s] exercise of such rights or
remedies, shall not be construed as active interference
with [the plaintiff’s] performance of the work.’’
As an initial matter, the parties disagree over whether
the phrase ‘‘active interference’’ is ambiguous. The
plaintiff claims that the meaning is clear, especially in
light of more recent case law from other jurisdictions.
The town, on the other hand, argues that ‘‘active inter-
ference’’ is ambiguous because other jurisdictions have
given that phrase two different meanings: one requiring
bad faith or malicious conduct, the other requiring only
an affirmative wilful act by the owner that unreasonably
interferes with the contractor. See, e.g., Pellerin Con-
struction, Inc. v. Witco Corp., 169 F. Supp. 2d 568, 583
(E.D. La. 2001) (noting that active interference excep-
tion ‘‘has not attained any precise judicial description’’).
We agree that this phrase is reasonably susceptible to
more than one reasonable interpretation, but the parties
have presented no helpful extratextual evidence of its
meaning. The only extratextual evidence in the record,
as noted by the trial court, is a stipulation that the
drafter of the contract intended the active interference
exception to circumvent the exceptions to ‘‘no damages
for delay’’ clauses in White Oak Corp. v. Dept. of Trans-
portation, supra, 217 Conn. 289. The parties have not,
however, provided any other extratextual evidence of
what the drafter intended ‘‘active interference’’ to mean
beyond the decisions of other courts about the meaning
of that phrase. As a result, we are left with the language
of the contract and those judicial interpretations to
guide our inquiry.
Many, if not most, other states recognize a separate,
judicially created active interference exception to ‘‘no
damages for delay’’ clauses. Those courts have, how-
ever, struggled to identify a precise definition of ‘‘active
interference.’’ Pellerin Construction, Inc. v. Witco
Corp., supra, 169 F. Supp. 2d 583. The cases are gener-
ally split between those concluding, on the one hand,
that active interference requires proof of some bad faith
or malicious intent by the owner, and, on the other
hand, those requiring only that the owner commit some
affirmative, wilful act that unreasonably interferes with
the contractor’s work. Compare Peter Kiewit Sons’ Co.
v. Iowa Southern Utilities Co., 355 F. Supp. 376, 399
(S.D. Iowa 1973) (articulating bad faith standard), with
Tricon Kent Co. v. Lafarge North America, Inc., 186
P.3d 155, 160–62 (Colo. App. 2008) (bad faith not
required).
The leading case articulating the bad faith standard
was decided in 1973. See Peter Kiewit Sons’ Co. v. Iowa
Southern Utilities Co., supra, 355 F. Supp. 399. Since
then, some courts have applied the bad faith exception
expressed in Peter Kiewit Sons’ Co. See, e.g., United
States Steel Corp. v. Missouri Pacific Railroad Co., 668
F.2d 435, 438–39 (8th Cir. 1982); P.T. & L. Construction
Co. v. Dept. of Transportation, 108 N.J. 539, 564, 531
A.2d 1330 (1987).
More recently, however, courts recognizing the active
interference exception to ‘‘no damages for delay’’
clauses have not required proof of bad faith or malicious
intent, but have instead required only an affirmative,
wilful act by an owner. See, e.g., Tricon Kent Co. v.
Lafarge North America, Inc., supra, 186 P.3d 159–61;
Kalisch-Jarcho, Inc. v. New York, supra, 58 N.Y.2d
384–85; United States ex rel. Williams Electric Co. v.
Metric Constructors, Inc., supra, 325 S.C. 134. Courts
adopting the latter, more recent standard typically
already recognize a separate ‘‘bad faith’’ exception dis-
tinct from the notion of ‘‘active interference,’’ and, thus,
decline to give the active interference exception a
redundant meaning. Tricon Kent Co. v. Lafarge North
America, Inc., supra, 159–61. Some of those courts also
have explained that a wilfulness standard, rather than a
bad faith standard, is more consistent with the common
meaning of the word ‘‘active’’ as used to modify ‘‘inter-
ference.’’ See, e.g., Kalisch-Jarcho, Inc. v. New York,
supra, 386 (noting that distinction between ‘‘active’’ and
‘‘passive’’ conduct ‘‘does not determine wrongdoing’’
and that ‘‘interference’’ does not ‘‘connote [wilfulness],
maliciousness, abandonment, bad faith or other theo-
ries through which runs the common thread of intent’’
[footnote omitted; internal quotation marks omitted]).
Returning to the language of the contract at issue,
and with these interpretations in mind, we reach two
conclusions regarding the meaning of ‘‘active interfer-
ence’’ as used by the parties in this case.7 First, we
agree with the plaintiff that the common understanding
of the word ‘‘active,’’ as used to modify ‘‘interference,’’
does not suggest bad faith or malicious intent, but,
rather, something done wilfully or with purpose, as
opposed to passively or mistakenly. See Merriam-Web-
ster’s Collegiate Dictionary (11th Ed. 2003) (defining
‘‘active’’ as meaning, among other things, ‘‘engaged in
action or activity’’ and ‘‘characterized by action rather
than by contemplation or speculation’’). But we also
conclude, as have virtually all other courts to consider
the matter, that the phrase ‘‘active interference’’
demands something greater than ordinary negligence
or passive omission, that is, conduct more affirmative
and wilful than ‘‘a simple mistake, error in judgment,
lack of total effort, or lack of complete diligence.’’ Tri-
con Kent Co. v. Lafarge North America, Inc., supra,
186 P.3d 161–62, citing Peter Kiewit Sons’ Co. v. Iowa
Southern Utilities Co., supra, 355 F. Supp. 399; see also
Thomas & Associates, Inc. v. Metropolitan Government
of Nashville, Docket No. M2001-00757-COA-R3-CV, 2003
WL 21302974, *16 (Tenn. App. June 6, 2003); United
States ex rel. Williams Electric Co. v. Metric Construc-
tors, Inc., supra, 325 S.C. 134.
Second, because the clause at issue in this case
expressly excluded from the definition of active inter-
ference any exercise of the town’s rights under the
contract, the conduct giving rise to the delay and the
delay itself also must be truly unreasonable to expose
the town to liability. Ordinary construction delays—
especially those reasonably foreseen by the parties at
the time of contracting—will not amount to active inter-
ference. Rather, the plaintiff accepted the risk that these
types of delays might occur when it signed the contract.
See, e.g., P.T. & L. Construction Co. v. New Jersey
Dept. of Transportation, supra, 108 N.J. 564 (‘‘This is
precisely the latitude that the [owner] bargains for in
its multiple contracts, namely, that it shall not be liable
for the cross-delays occasioned by the various con-
tracting efforts. Nor shall it expose itself to inquiries
into the reasonableness of every delay.’’); Gherardi v.
Board of Education, 53 N.J. Super. 349, 365, 147 A.2d
535 (1958) (Delays from claimed interference ‘‘were
nothing more than the ordinary and usual types of delay
with which most contractors are frequently confronted.
They are part of the risks and uncertainties [the contrac-
tor] impliedly accepts in signing such an agreement.’’);
Gasparini Excavating Co. v. Pennsylvania Turnpike
Commission, 409 Pa. 465, 474, 187 A.2d 157 (1963)
(party cannot seek damages when alleged delay was
foreseeable); Thomas & Associates, Inc. v. Metropoli-
tan Government of Nashville, supra, 2003 WL 21302974,
*14 (‘‘When . . . contracts contain ‘no damages for
delay’ clauses, bidding contractors remain free to for-
mulate and submit bids that account for the possibility
of delay . . . . Contractors can also elect not to bid
on such contracts, if they, as a business matter, do not
want to assume that risk of loss.’’).
The town urges us to interpret active interference,
as used in the contract, to require bad faith or gross
negligence. In support of this argument, the town claims
that the trial court’s decision regarding the proper
meaning of ‘‘active interference’’ was a finding of fact
about the drafter’s intent, and thus may be assailed only
if clearly erroneous. Even though the parties did not
present evidence of what the drafter intended ‘‘active
interference’’ to mean, the town’s brief is replete with
speculation about what the drafter might have intended.
For example, the town claims that: ‘‘the draftsman’s
goal was to afford maximum protection to the [o]wner
without offending public policy’’; ‘‘the draftsman was
looking to the common law for an exception for his
[‘no damages for delay’] clause—one that would be
difficult to invoke, but whose presence would eliminate
any public policy challenge’’; ‘‘he never would have
chosen a level of conduct that fails to reach the level
needed for an exception under New York law’’; and, in
the heightened ‘‘bad faith’’ or ‘‘gross negligence’’ stan-
dard, ‘‘[h]e found what he wanted . . . .’’ The only evi-
dence in the record about the drafter’s intent, as noted
by the trial court, is the single stipulation by the parties
that the drafter intended to circumvent the White Oak
exceptions. The trial court made no additional findings
regarding the drafter’s intent.
We decline the town’s invitation to guess what the
drafter might have intended ‘‘active interference’’ to
mean on the basis of a single stipulated fact. According
to the trial court’s decision, the parties stipulated that
‘‘the ‘no damages for delay’ clause was an attempt by
the drafter of the contract . . . to circumvent the
White Oak exceptions.’’8 The record contains no evi-
dence that the drafter objectively manifested or
explained to the other party what he intended ‘‘active
interference’’ to mean. Without such evidence, the draft-
er’s subjective intentions have no bearing on our deci-
sion. See Hydro-Hercules Corp. v. Gary Excavating,
Inc., 166 Conn. 647, 652, 353 A.2d 714 (1974) (‘‘[t]he
intention of the parties manifested by their words and
acts is essential to determine whether a contract was
entered into and what its terms were’’ [internal quota-
tion marks omitted]).
We therefore conclude that to establish active inter-
ference, the plaintiff must prove that the town commit-
ted an affirmative, wilful act that unreasonably
interfered with the plaintiff’s work and that this act
must be more than a mistake, error in judgment, lack
of total effort, or lack of diligence.
B
Application of Active Interference Standard
The plaintiff advances two separate bases for its
active interference claim: (1) the town concealed the
remaining asbestos abatement from the plaintiff and
ordered the plaintiff to begin its work, despite knowing
that the abatement would cause the plaintiff delays and
lost productivity; and (2) the town’s coordination of its
contractors and failure to update the project specifica-
tions interfered with the plaintiff’s ability to complete
its work. We address each claim in turn.
As for its first claim, the plaintiff suggests, with strong
supporting authority, that the town’s directive to the
plaintiff to proceed with its work, despite knowledge
of delay causing conditions—namely, the ongoing
asbestos abatement—and its concealment of these con-
ditions, satisfies the active interference exception. See,
e.g., Dennis Stubbs Plumbing, Inc. v. Travelers Casu-
alty & Surety Co. of America, 67 Fed. Appx. 789, 792
(4th Cir. 2003) (noting that owner’s order to contractor
to proceed at site not ready for contractor’s work ‘‘his-
torically [has] been the gravamen of triable active inter-
ference claims’’); United States Steel Corp. v. Missouri
Pacific Railroad Co., supra, 668 F.2d 439 (issuance of
notice to proceed and ‘‘proof of the [owner’s] knowl-
edge that delay-causing circumstances exist which will
likely prevent the contractor from timely proceeding
with its work’’ is sufficient to establish active interfer-
ence); see also American Bridge Co. v. New York, 245
App. Div. 535, 539–40, 283 N.Y.S. 577 (1935) (owner
actively interfered with contractor when it required con-
tractor to fabricate steel prematurely, requiring contrac-
tor to incur storage and repainting expenses). We agree
that this type of conduct would meet the contract excep-
tion, but we disagree that the town’s conduct reached
that level here.
In those cases finding active interference when an
owner directs a contractor to begin work despite delay
causing conditions, there was evidence that the owner
actually knew that the contractor’s work would be
delayed. See, e.g., Dennis Stubbs Plumbing, Inc. v.
Travelers Casualty & Surety Co. of America, supra, 67
Fed. Appx. 792 (owner ordered plumber to begin work
in areas not ready for plumbing); United States Steel
Corp. v. Missouri Pacific Railroad Co., supra, 668 F.2d
438–39 (proof of owner’s knowledge of delay causing
condition establishes active interference); American
Bridge Co. v. New York, supra, 245 App. Div. 538–40
(finding active interference when owner ordered con-
tractor to manufacture steel prematurely for project
when it was ‘‘obvious’’ that project was not ready for
steel installation); Gasparini Excavating Co. v. Penn-
sylvania Turnpike Commission, supra, 409 Pa. 474
(finding active interference when owner knew of delay
causing condition and ‘‘in face of this knowledge
ordered [contractor] to start operations’’). In each of
these cases, it was the owner’s knowledge that the
contractor would encounter delays that made its inter-
ference sufficiently affirmative and wilful to avoid appli-
cation of the ‘‘no damages for delay’’ clause. Proof of
this awareness when the order is issued is vital.9
Turning to this case, we disagree with the plaintiff
that it proved that the town was actually aware—when
it issued the notice to proceed—that the remaining
asbestos abatement would disrupt the plaintiff’s work.
Although the plaintiff presented this argument to the
trial court, that court did not make any finding that the
town was actually aware that the plaintiff’s work would
likely be disrupted. Nor did the parties stipulate to this
fact. Nevertheless, to demonstrate the town’s actual
awareness of delay causing conditions, the plaintiff
cites to a single letter to the town from the town’s
building committee chairman. That letter explains that,
by undertaking the abatement at the school before start-
ing construction, the town avoided potential complica-
tions with the construction work. This plan was,
however, precautionary. After the date of this letter the
town completed about 70 percent of the abatement
work before beginning construction, leaving only about
30 percent of the abatement to complete during con-
struction. Nothing in the record suggests that the town’s
representatives knew that completing the remaining
abatement work during construction would disrupt the
plaintiff’s work.
Indeed, the record suggests that the town’s represen-
tatives believed that the town had completed enough
abatement work to begin construction. A letter sent to
the town by its environmental consultant explains that
leaving certain areas for abatement during construction
‘‘will not immediately affect the new construction work
. . . .’’ Based on this, it would have been reasonable
for the town to conclude that directing the plaintiff to
proceed during the remaining abatement work would
not have unreasonably interfered with the plaintiff’s
own work. The plaintiff was able to begin and initially
focus its work on the new addition, which, having yet
to be built, did not contain any asbestos and, thus,
needed no abatement. That the town’s decision, sup-
ported by an environmental consultant, later proved to
be erroneous does not transform the town’s mistake or
error in judgment into active interference. In the
absence of a finding by the trial court and sufficient
evidence of knowledge, we decline to conclude, on
appeal, that the town knew the unfinished abatement
would disrupt the plaintiff’s work when it instructed
the plaintiff to proceed.
Second, we disagree that the town actively attempted
to conceal the delay in the remaining asbestos work
from the plaintiff. The record shows that the town did
not disclose this fact directly to the plaintiff. The town
did, however, repeatedly discuss the delay openly in
public meetings. Although we do not suggest that the
plaintiff has a duty to attend all public meetings of
the town or else be charged with notice, the town’s
readiness to discuss the delay publicly undermines the
argument that the town actively concealed it. Rather,
it appears from the record that the town’s failure to
disclose the delay to the plaintiff was an oversight or
that the town’s representatives thought, as its environ-
mental consultant suggested, that the remaining asbes-
tos work would not interfere with the plaintiff’s work
and, thus, was not necessary to disclose. Either way,
the record does not support a finding of active conceal-
ment by the town. Interference as a result of a mistake
or an oversight is not enough to satisfy the active inter-
ference exception in the contract. This is particularly
so when the alleged interference was caused by a delay
that the parties contemplated. The parties expressly
agreed that delays caused by the failure of another
contractor to perform its work were ‘‘clearly contem-
plated by the parties’’ at the time of contracting.
The plaintiff next claims that the town actively inter-
fered with its ability to schedule and plan its work
by failing to coordinate the work of the contractors
properly and by not updating the project specifications
to show the location of additional asbestos and the
timing of the abatement. We disagree for three reasons.
First, the parties did not make any stipulations about
the manner in which the town coordinated its contrac-
tors. Nor did the trial court make any findings that the
town’s coordination of its contractors interfered with
the plaintiff’s work. In the absence of such stipulations
or findings, we decline to conclude, on appeal, that the
town’s coordination of its contractors was improper or
that the town wilfully interfered with the plaintiff’s work
in this regard.
Second, the contract expressly excludes from the
definition of active interference any exercise by the
town of its right to coordinate the work under the con-
tract, including ‘‘ordering changes in the work, or direct-
ing suspension, rescheduling or correction of the work
. . . .’’ Coordinating contractors in a manner that
requires the plaintiff to work in different locations
within the school to accommodate the ongoing asbestos
abatement is merely an exercise by the town of its
right to reschedule or suspend work. Whether the town
exercised these rights to the plaintiff’s satisfaction is
irrelevant under the contract. The parties categorically
excluded from the meaning of ‘‘active interference’’ any
rescheduling or suspension of work by the town, irre-
spective of the extent and frequency that the town exer-
cised these rights. It is not this court’s place to rewrite
the parties’ contract in these circumstances, especially
when the parties are sophisticated commercial and gov-
ernmental entities. As found by the trial court, the plain-
tiff had ‘‘considerable experience’’ working on public
school projects and ‘‘[t]he fact that delays for asbestos
removal could arise on such a project, particularly given
the age of the building, should not surprise a sophisti-
cated commercial entity such as the plaintiff.’’
The parties fully anticipated that additional asbestos
might be found as the project unfolded and that abate-
ment could impact the project. According to the trial
court, the plaintiff’s senior project manager ‘‘admitted
that there was a risk that more asbestos might be found
than was originally identified by an asbestos consul-
tant.’’10 The contract here specifically provided that the
parties foresaw that delays might be caused by other
contractors. At trial, the plaintiff’s president testified
that he accepted ‘‘the risks that [the ‘no damages for
delay’ clause] imposes and allocates.’’ These risks
expressly included the potential that the town might
reschedule or suspend work as a result of delays caused
by other contractors. See Taylor-Fichter Steel Con-
struction Co. v. Niagara Frontier Bridge Commission,
261 App. Div. 288, 294–95, 25 N.Y.S.2d 437 (1941)
(rejecting active interference claim based on delays
caused by other contractors because these delays are
‘‘circumstances which all contractors are required to
face’’); Gasparini Excavating Co. v. Pennsylvania
Turnpike Commission, supra, 409 Pa. 475 (‘‘[w]here
contracts contain a provision against delay of other
contractors or other incidents of the work, which pro-
vide in substance as this one does for no liability on the
part of the owner for delays of contractors or changes
in the work, such provision includes delays of other
contractors in connection with the work, or delays
which are covered by the contract or reasonably antici-
pated from the circumstances attending the project’’
[internal quotation marks omitted]).
Third, the trial court found that the problems
resulting from rescheduling and failing to disclose the
unfinished abatement work did not unreasonably inter-
fere with the plaintiff’s work. Specifically, the trial court
found that the ongoing abatement work ‘‘was not that
which ultimately impacted this job.’’ Rather, ‘‘the [unfin-
ished abatement work] was performed in 2007 during
[a] period when the plaintiff was . . . the most produc-
tive.’’ Furthermore, the trial court found that the job
‘‘[i]ndisputably was finished on time.’’ The plaintiff has
not challenged these findings as clearly erroneous. We
see no reason to disturb those findings and, accordingly,
conclude that the town’s less than fastidious coordina-
tion of the contractors and handling of the project speci-
fications did not actively interfere with the plaintiff’s
work.11 Consequently, we conclude that the trial court
properly determined that the plaintiff did not prove its
active interference claims.12
II
WHITE OAK EXCEPTIONS
The plaintiff also claims on appeal that it may obtain
damages from the town under two common-law excep-
tions to the enforcement of ‘‘no damages for delay’’
clauses set forth in White Oak Corp. v. Dept. of Trans-
portation, supra, 217 Conn. 289. In White Oak, following
New York law, we adopted four exceptions to enforce-
ment of these clauses, permitting contractors to seek
damages for: ‘‘(1) delays caused by the [owner’s] bad
faith or its [wilful], malicious, or grossly negligent con-
duct, (2) uncontemplated delays, (3) delays so unrea-
sonable that they constitute an intentional
abandonment of the contract by the [owner], and (4)
delays resulting from the [owner’s] breach of a funda-
mental obligation of the contract.’’ (Internal quotation
marks omitted.) Id., quoting Corrino Civetta Construc-
tion Corp. v. New York, supra, 67 N.Y.2d 309. The plain-
tiff’s claims are based on the first White Oak exception
for bad faith or gross negligence and the fourth White
Oak exception for breach of a fundamental obligation.
We address each in turn.
A
Bad Faith
As for the first exception, the plaintiff’s claim is famil-
iar and is based on its allegations that the town con-
cealed delay causing conditions from the plaintiff and
nevertheless ordered it to begin work despite knowl-
edge of these conditions. The plaintiff argues that this
conduct meets the bad faith and gross negligence excep-
tion in White Oak. We disagree.
The town’s conduct did not amount to active interfer-
ence and, therefore, cannot rise to the level of bad faith
or negligence. Proof of bad faith requires misconduct
that ‘‘smacks of intentional wrongdoing,’’ including
fraudulent or malicious behavior. Kalisch-Jarcho, Inc.
v. New York, supra, 58 N.Y.2d 385. Gross negligence
requires conduct that ‘‘betokens a reckless indifference
to the rights of others . . . .’’ Id. Active interference,
on the other hand, requires a lesser showing. See id.,
386 (noting that, to find bad faith or gross negligence,
‘‘the jury would have to find more than ‘active interfer-
ence’ ’’). We have already determined in part I A of
unfinished abatement work and that the plaintiff did
not prove that the town was aware that the remaining
abatement work would interfere with the plaintiff’s own
work. Having failed to establish that the town actively
interfered, the plaintiff necessarily has not demon-
strated that the town acted in bad faith or with gross
negligence. Accordingly, we conclude that the trial
court properly rejected the plaintiff’s claim under
this exception.
B
Breach of Fundamental Obligation
Turning to the fourth exception, the plaintiff argues
that the town breached its fundamental obligations in
two ways: (1) by failing to disclose and update specifica-
tions to reflect the remaining asbestos work; and (2)
by not providing the plaintiff with site access to com-
plete its work. We disagree.
To establish this exception, a contractor must prove
that an owner violated a truly fundamental contract
provision—courts have made clear that ordinary
breaches are not enough. ‘‘A[n] [owner’s] breach of
contract is also recognized as an exception to the
enforceability of exculpatory clauses but . . . the
exception is applied to an especially narrow range of
circumstances. Because the exculpatory clause is spe-
cifically designed to protect the [owner] from claims
for delay damages resulting from its failure of perfor-
mance in the ordinary, garden variety ways, delay dam-
ages may be recovered in a breach of contract action
only for the breach of a fundamental, affirmative obliga-
tion the agreement expressly imposes on the [owner].
Typical of such claims are those in which the [owner]
has failed in its obligation to obtain title to the work
site or make it available to the contractor so that it may
commence construction of the agreed upon improve-
ments . . . .’’ (Citations omitted.) Corrino Civetta
Construction Corp. v. New York, supra, 67 N.Y.2d 313.
We conclude that the plaintiff did not prove a funda-
mental breach under either of its theories. The trial
court determined that the town’s supposed missteps
had no meaningful impact on the plaintiff’s work and,
therefore, did not rise to the level of a fundamental
breach. As for the plaintiff’s claim about site access,
the trial court found that the town did not prevent the
plaintiff from accessing the work site; rather, the town
asked the plaintiff to move its operations on that site
to accommodate the ongoing abatement. The trial court
concluded that, despite these accommodations, ‘‘the
job was finished within the original time parameters’’
for the project. Although the plaintiff may not have had
access to the specific areas of the job site when it
wanted, it had sufficient access to the job site to com-
plete the project on time. Furthermore, the trial court
rejected the plaintiff’s claim of a lack of disclosure
stemming from the town’s failure to update its plans
for many of the same reasons, finding that the plaintiff
paid little attention to the specifications showing the
location of asbestos and the unfinished asbestos work
had little impact on the plaintiff’s productivity. The trial
court determined that the unfinished asbestos work
that the town failed to disclose ‘‘was not that which
ultimately impacted this job,’’ that the plaintiff was
‘‘most productive’’ during the period at issue, and that
the job ‘‘[i]ndisputedly was finished on time.’’ The plain-
tiff may disagree with these findings, but it has not
challenged them as clearly erroneous. We, therefore,
decline to disturb the trial court’s conclusion that the
plaintiff did not meet its burden of proving that the
town breached a fundamental obligation.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
The trial court found in favor of the plaintiff on certain of its other
contract claims regarding the contract rates and rendered judgment for the
plaintiff on those claims, which are not at issue in this appeal.
3
The plaintiff was also interrupted by problems with previously undiscov-
ered asbestos and other conditions in late 2007 and 2008, but these delays
are not at issue in this appeal.
4
The trial court also noted that the plaintiff made its anticipated profit.
5
The plaintiff cites to several cases holding that active interference does
not require a finding of bad faith. See, e.g., Tricon Kent Co. v. Lafarge North
America, Inc., 186 P.3d 155, 160–62 (Colo. App. 2008); Kalisch-Jarcho, Inc.
v. New York, 58 N.Y.2d 377, 384–85, 448 N.E.2d 413, 461 N.Y.S.2d 746 (1983);
United States ex rel. Williams Electric Co. v. Metric Constructors, Inc., 325
S.C. 129, 133–34, 480 S.E.2d 447 (1997).
6
In support of its claims, the town principally relies on a leading case,
Peter Kiewit Sons’ Co. v. Iowa Southern Utilities Co., 355 F. Supp. 376,
399 (S.D. Iowa 1973), which concluded that ‘‘active interference’’ requires
a showing of bad faith by the owner, and other cases following the Peter
Kiewit Sons’ Co. standard. See, e.g., United States Steel Corp. v. Missouri
Pacific Railroad Co., 668 F.2d 435, 438–39 (8th Cir. 1982).
7
Because the contract at issue here expressly contains an active interfer-
ence exception, we are not called on to consider adopting a common-law
active interference exception to the enforcement of a ‘‘no damages for
delay’’ clause, either independently or as part of the established White Oak
exceptions. We thus express no opinion on that issue.
8
The ‘‘no damages for delay’’ clause was drafted by an attorney for the
town’s construction manager, O & G Industries, Inc. (O & G). The parties
stipulated that: ‘‘As construction manager . . . O & G was expected to enter
into the contracts with the various trade contractors expected to perform
the work.’’ But before the construction began, the town dismissed O & G
and, instead, contracted directly with the plaintiff.
The limited information in the record about the drafting of the contract
further prevents us from drawing any meaningful inferences of the parties’
intent concerning the subject contract provision because O & G did not
ultimately execute the contract with the plaintiff. There is no evidence in the
record about what the town’s representatives thought ‘‘active interference’’
meant or that O & G’s attorney manifested his understanding to the town
or to the plaintiff.
9
At least one court has held that conduct of this nature rises to the level
of bad faith. See United States Steel Corp. v. Missouri Pacific Railroad
Co., supra, 668 F.2d 438–39. Regardless of whether active interference
requires bad faith or not, it is clear from the foregoing cases that courts
require actual knowledge on the part of the owner to establish the wilfulness
of the alleged interference.
10
Although the plaintiff claims that it did not expect a disruption to the
extent it experienced, both its president and senior project manager testified
that they did not pay close attention to the specifications and drawings
showing the known location of asbestos. Nor did the plaintiff attempt to
quantify the amount of asbestos within the school to gain a better understand-
ing of the potential impact that the presence of asbestos might have on
the project.
11
It appears from the record and briefs that the plaintiff’s claims of active
interference before the trial court were principally based on other delays
caused by asbestos related problems and other issues that arose after the
abatement contractor completed the unfinished work left over from the
previous summer. For example, later in the construction project, the town
discovered additional asbestos that required abatement, slowing the proj-
ect’s progress. In addition, the town suspended the project for a few weeks
as a result of an uncontained release of asbestos into the school. Certainly,
the presence of asbestos at the school presented a problem for the town
and affected the contractors on the job. But whether those other asbestos
related delays and problems are compensable under the contract is not a
question before us in this appeal. We conclude only that the evidence does
not support a conclusion that the town’s decision to commence construction
despite the unfinished abatement work, and the town’s failure to fully dis-
close this work to the plaintiff, amounts to active interference.
12
The trial court also rejected the plaintiff’s active interference claim
because the plaintiff did not provide sufficient notice of a claim for active
interference, a prerequisite to filing a claim under the contract’s active
interference exception. Our own analysis of the record supports this conclu-
sion. Nevertheless, because we conclude that the plaintiff’s claims do not
succeed on their merits, we do not consider whether the plaintiff’s claims
are barred by a failure to provide notice.
We do not suggest, by reaching the merits of the plaintiff’s appeal, that
contract notice requirements are not important. Notice provisions serve an
important role in defining the relationship between the owner and contrac-
tor. Their stated procedures are not mere bureaucratic red tape. Notice
provisions give the owner an opportunity to investigate the extent and
accuracy of any claims by the contractor before the contractor spends extra
money to address the problem. Cecio Bros., Inc. v. Greenwich, 156 Conn.
561, 568, 244 A.2d 404 (1968). Equally as important, these requirements
allow the owner to reduce or eliminate any extra costs by addressing the
problem before the contractor incurs these costs. Id. This is a critical tool
for municipalities to keep their public projects within their budgets. Id.
Indeed, we explained in Cecio Bros., Inc., that if courts do not enforce
notice requirements, ‘‘it is difficult to see how a municipality could ever
protect itself from a contractor’s unanticipated and long-delayed claim for
compensation . . . in excess of the public funds appropriated for a con-
struction project.’’ Id., 569. As a result of these concerns, a lack of notice
can defeat an otherwise meritorious claim by a contractor. See, e.g., id.,
568; see also Marriott Corp. v. Dasta Construction Co., 26 F.3d 1057, 1068–70
(11th Cir. 1994) (refusing to consider active interference claim when contrac-
tor did not comply with requirement that it first request extension of time
as prerequisite to filing damage claim); Port Chester Electric Construction
Corp. v. HBE Corp., 978 F.2d 820, 822–23 (2d Cir. 1992) (failure to comply
with contract notice requirements for filing of claim will bar claim for
active interference). Here, however, we do not need to consider whether the
plaintiff gave adequate notice because, even if it did, we are not persuaded by
its claims.