C&H ELECTRIC, INC. v. TOWN OF BETHEL, SC 19162

Judicial District of Hartford

 Construction Contracts; Whether Plaintiff Entitled to Damages Under “Active Interference” Exception to “No Damages for Delay” Clause in Contract.  The plaintiff contracted with the defendant town to perform the electrical work on the town’s high school renovation project.  After completing its work, the plaintiff brought this action claiming that it suffered a loss due to delays caused when the town removed asbestos from the building.  The plaintiff claimed that as a result of the delays, it had to increase its labor force and work substantially longer hours in order to complete its work on time.  As a defense, the town invoked the “no damages for delay” clause in the parties’ contract, which broadly prohibited the recovery of damages for delay unless the delay was caused by the town’s “active interference.”  The trial court rendered judgment in favor of the town, finding that the plaintiff failed to prove the town’s active interference, a phrase the court construed as encompassing some bad faith or wilful, malicious or grossly negligent conduct.  The plaintiff appeals, claiming that, in order to prove active interference, it had to show only that the town committed an affirmative, wilful act that unreasonably interfered with its performance, regardless of whether the act was undertaken in bad faith.  The plaintiff also argues that the delay in this case falls within some of the exceptions to the enforceability of a no damages for delay clause recognized in White Oak Corporation v. Department of Transportation, 217 Conn. 281 (1991).