Opinion
CV176011932S
10-17-2018
UNITED CONCRETE PRODUCTS, INC. v. NJR CONSTRUCTION, LLC
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The plaintiff, United Concrete Products, Inc. (United), sues NJR Construction LLC (NJR), in two counts, for breach of contract and a violation of General Statutes § 49-41a, respectively. The plaintiff also sues Aegis Security Insurance Company (Aegis) for failure to pay a bond claim owed by it under General Statues § 49-42. The defendants deny the plaintiff’s allegations.
NJR asserts special defenses of payment; failure to state a claim; unclean hands; breach of contract by the plaintiff; failure to mitigate damages; and causation of its own damages. Aegis adopts these special defenses pari passu.
NJR also counterclaims alleging that United breached the contract and violated the Connecticut Unfair Trade Practices Act (CUTPA). United generally denies or asserts lack of knowledge as to NJR’s averments and raises special defenses of unclean hands and failure to mitigate damages.
The court makes the following findings of fact and rulings of law. It is stipulated that NJR was hired by the Department of Transportation (DOT) as the general contractor for a construction project to replace a bridge across the Hockanum River where Route 74 traverses the river in Vernon, Connecticut. The contract is dated December 14, 2015. The parties also agree that NJR engaged United, through a purchase order, dated February 3, 2016, to fabricate and furnish certain precast and/or prestressed concrete elements for the new bridge.
These elements included ten, prestressed beams needed to span the river. The beams are approximately four feet wide, forty-six feet long, and one and three quarters feet in height. They contain high grade steel cables that are intentionally stressed by measured tensioning during the concrete casting process to prevent postcasting strain that might weaken the hardened concrete later on. These beams form the deck of the bridge.
Under the principal contract between NJR and the DOT, NJR’s work on the project had to be completed within 161 days or liquidated damages would ensue. The contract also contained an additional time restricting provision concerning the closure of Route 74. Several school bus routes utilized the bridge, and the DOT wanted the street closure to coincide with the school vacation period in summer.
Specifically, the contract included the following special terms. NJR had eight weeks from the date Route 74 traffic was detoured, June 13, 2016, to finish the bridge replacement and reopen Route 74 for normal traffic use. The contract defined "completion" as the point in time when the final course of bituminous pavement was in place, the permanent guide rails were installed, and the project engineer approved the work.
As an incentive, if NJR reopened Route 74 before August 8, 2016, the company would earn an incentive bonus of $3,000 per day of earlier completion, up to a maximum of $60,000. If, however, the road closure extended past August 8, 2016, the contract assessed a $3,000 per day penalty without a cap on that sum. Obviously, NJR was eager to earn as much bonus money as possible and loath to suffer a penalty. NJR formulated its work schedule with these goals in mind. That accelerated plan necessarily entailed receiving supplies and leasing equipment on time.
As noted above, NJR contracted with United to supply certain precast components, the supply contract price was $244,672.50, and the agreement specified delivery "no later than June 7, 2016," as long as approval of the shop drawings was forthcoming. That approval occurred promptly, and no delay beyond the June 7, 2016 delivery date is attributable to that proviso.
Section 4 of the purchase order agreement is captioned, "Time," and emphasizes, with bold type, "Time is of the essence." Management at United understood that NJR had embarked on a fast-track schedule to replace the bridge. Section 4 alerted United that "Product be provided to Purchaser in a manner and in accordance with the Schedule so as to permit Purchaser to complete construction of the Project in the fastest and most efficient manner possible."
That goal never occurred, and that delinquency is at the heart of this litigation.
United’s sales person, Chris Borkowski, usually interacted with NJR’s staff. Although not in direct contact with NJR, United’s vice-president of sales, Christian Lee Moore, had knowledge of the incentive/disincentive clauses in the main contract between NJR and the DOT when United agreed to the purchase order.
By March 2016, United possessed most of the materials needed to manufacture the beams. United pours such products outdoors, and, as a result, fabrication is weather dependent. The concrete can be properly set only when the temperature is within a certain range. It takes about two weeks to make a beam that is ready for delivery. United had the capacity to pour two beams at a time. A handwritten note on United’s shop drawing, dated March 11, 2016, is entitled "Prestress Concrete Block Layout," and directs "To Production 3-23-16," Exhibit 48. Testimony disclosed that the note signified that the requisite apparatus and material had been obtained to allow physical production to begin by March 23, 2016.
It takes about one week to set up the mold for the beams. Then, prestressed steel strands and other items are inserted and inspected. Next, concrete is poured. This takes about two days. A crane removes the hardened beams and stores them until a dry fit is performed. Then, United schedules delivery. The eight interior beams are identical and can be formed using the same mold. The two end beams require assembly of a different mold.
On May 5, 2016, Ryan Giguiere, the project manager for NJR emailed Joseph Tenedine, United’s vice-president of production, inquiring about the pour schedule. Tenedine replied, "the prestress will be completed by 5/27 if all stress strengths are met each day." Eight days later, Tenedine emailed Giguiere asking for clarification of certain features of the inserts to be used, and Giguiere responded with that information within a few hours.
Based on the May 27, 2016 completion date provided by Tenedine, Giguiere followed Borkowski’s instructions to contact United’s shipping department to schedule delivery for June 29, 2016. United’s shipping clerk voiced no concern about meeting that proposed delivery date.
Giguiere had previously scheduled events with other subcontractors, whose tasks awaited installation of the beam deck, so that the new bridge could open for traffic. Also, utility companies had to be notified because these service lines ran along a part of the bridge separate from the beam deck. To NJR, progress appeared to advance smoothly, and the reopening of Route 74 seemed well ahead of the August 8, 2016 deadline. Thus, NJR anticipated earning the $60,000 bonus described above.
Around June 13, 2016, Giguiere telephoned Borkowski to arrange for the dry fit of the finished deck beams which was to be conducted at United’s storage yard. Borkowski assured Giguiere that everything was ready to go and that he would contact Giguiere with the dry fit time and date. A dry fit seeks to ensure that all the beams match up correctly before shipment so that adjustments can be made at the fabrication yard rather than at the job site during attempts at installation.
Borkowski’s assurance was unwarranted. None of the beams were ready for dry fit. In fact, as of June 13, 2016, no beams had even been poured. No one from United alerted NJR of this situation until about two weeks later. On June 27, 2016, United’s dispatcher telephoned Giguiere and informed him that no finished beams existed for delivery on June 29, 2016, as previously scheduled.
Giguiere tried to communicate with Borkowski several times without response from him. It should be observed that no party to this lawsuit chose to call Borkowski to testify. NJR urgently requested that the DOT conduct an emergency meeting to address this development. The DOT held that meeting two days later on June 29, 2016. Although Tenedine and Borkowski attended the meeting on behalf of United, they tendered no specific explanation for the failure to produce the beams. They mentioned encountering unidentified problems at United’s plant.
Exhibit 53 shows that the first casting of a beam by United was completed on June 21, 2016. That beam failed inspection and had to be recast. Similar failures occurred with beams on June 25 and June 28, 2016. The first, successful casting occurred on June 29, 2016. United finally delivered the ten beams to the job site on July 26, 2016. This was seven weeks after the June 7, 2016 purchase order delivery date.
After considering all the evidence adduced, the court finds that United’s failure to deliver the beams by June 7, 2016, caused NJR to delay completion of construction of the bridge until August 31, 2016, and that United’s delay caused NJR to incur a penalty of $69,000 (twenty-three days times $3,000 per day), less $4,795 that the DOT excused for a resulting penalty of $64,205. Also, United’s noncompliance caused NJR to lose the opportunity to receive any incentive bonus had delivery occurred on June 7, 2016, as directed in the purchase order. The parties agree that NJR did remit $66,074.75 to United in November 2016.
Also, NJR sustained losses by virtue of rescheduling of other subcontractors and added equipment rental costs. These additional expenses total $22,320. The court finds that NJR has proved its claims to damages for extra labor costs and material needed to conform the beams delivered by United to the specifications set forth in the purchase order. These added expenses come to $4,715. NJR further contends that United owes it for losses attributable to utilizing a fast-track schedule. The court discounts that contention because, had the beams been delivered on time, NJR would have incurred those costs to achieve any bonus.
Regarding NJR’s claim that it would have earned the full $60,000 bonus for reopening Route 74 twenty days before August 8, 2016, the court finds the following additional facts. First, the purchase order agreement obligated United to deliver the beams "no later than June 7, 2016," because the shop drawings review and approval generated no delay for the United’s production schedule. As found above, United acknowledged, by virtue of the handwritten note on the show drawing, that it was ready to begin casting the beams by March 28, 2016. However, for purposes of evaluating the earliest date NJR would have likely reopened the highway, the court will use the latest possible delivery date under the contract with United, viz. June 7, 2016. United had no contractual duty to deliver before that date.
The court also recognizes that once United’s seven-week delay in delivery occurred, NJR abandoned its fast-track approach because the need for speed had vanished along with the possibility of garnering any bonus. NJR ceased investing resources, such as added manpower and overtime wages, and returned to a more routine work pace. In other words, the actual progression of the work, once delivery of the beams occurred on July 26, 2016, reflected a slower work schedule and longer lapse of time to reopen Route 74 than would have elapsed had the beams been delivered by June 7, 2016.
The court does not fault NJR for its decision to adopt a nonaccelerated work schedule. The court will, therefore, assess NJR’s ability to complete the project utilizing an accelerated schedule rather than the time actually expended. That is, the court ascertains the financial harm to NJR premised on NJR’s reasonable expectations and ramped up effort had United delivered the beams by June 7, 2016, as it promised in the purchase order agreement.
The time from actual delivery of the beams, on July 26, 2016, to the date Route 74 reopened, August 31, 2016, is thirty-six days. Even working at the nonaccelerated pace and enduring delays by having to reschedule subcontractors and equipment rental, NJR would have reopened Route 74 by July 13, 2016, at the latest, had United delivered the beams on time. This reopening date would have been twenty-five days before the incentive/disincentive partition date of August 8, 2016. This earned bonus would have been capped at the maximum $60,000 under the contract with the DOT. But for United’s default under the contract, NJR would have recouped this $60,000 and avoided the $64,205 penalty assessed.
The list of loses to NJR because of United’s breach is, therefore, $60,000 lost bonus plus the $64,205 penalty plus $22,320 in additional costs due to rescheduling plus $4,715 for correction of nonconforming beams. These total $151,240.
The court has delved into NJR’s losses at this juncture because such harm is pertinent to determining whether United substantially performed its obligations under the supply agreement in the first instance. In paragraph 5 of the first count of the complaint, United avers that it "performed all of its work on this Project." In paragraph 14 of the second count, United alleges that is "substantially performed its work in accordance with the loss of its employment." These allegations are essential elements of a cause of action for breach of an express contract and for a violation of the Little Miller Act, § 49-41a.
Breach of Express Contract
"The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages," Meyers v. Livingston, Adler, Pulder, Meiklejohn and Kelly, P.C., 311 Conn. 282, 291 (2014); American Express Centurion Bank v. Head, 115 Conn. 10, 15-16 (2009).
"Performance" by the party claiming damages usually means full performance However at least as to construction contract actions, "the general rule with respect to compliance with contract terms is not one of strict compliance, but substantial compliance," Pack 2000, Inc. v. Cushman, 311 Conn. 662, 675 (2014). "The doctrine of substantial performance shields contracting parties from the harsh effects of being held to the letter of their agreements," Id. Technical violations are excused "not because compliance [is] impossible, but because actual performance is so similar to the required performance that any breach that may have been committed is immaterial," Id. "Substantial performance occurs when, although the conditions of the contract have been deviated from in trifling particulars not materially detracting from the benefit the other party would derive from a literal performance, [the other party] has received substantially the benefit [it] expected, and is, therefore, bound to perform," Id., 685.
The key to determining whether the doctrine of substantial performance permits recovery is whether the claimant’s own contractual breach "is material in nature," 21st Century North American Insurance Co. v. Perez, 177 Conn. 802, 815 (2017). The doctrine only saves the claim "where performance of a nonessential condition is lacking, so that the benefits received by a party are far greater than the injury done to [the party] by the breach ...," Id., (emphasis in original). As noted above, the doctrine is most frequently applied "in the context of construction contracts," Id., 816. See e.g., Vincenzi v. Cerro, 186 Conn. 612 (1982). A material breach can take the form of defective performance as well as nonperformance, 21st Century North American Insurance Co. v. Perez, supra .
Section 241 of the Restatement (Second), Contracts (1981), explains:
"In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
Applying these factors to the factual circumstances the court finds to exist in the present case, the court determines that the first factor, that is the extent of deprivation of expected benefit inflicted upon NJR by United’s belated delivery, weighs heavily against the plaintiff. The entire contract price was $244,672.50. The lost opportunity for the bonus and the penalty imposed by the DOT, alone, was about $125,000, which was more than one-half the contract price.
The second factor, adequacy of compensation for United’s breach provides little support for United’s case. NJR will only receive compensation for its losses caused by the plaintiff’s delayed delivery by successfully defending against the plaintiff’s lawsuit and securing a setoff or counterclaim judgment allowing it to retain sums it has withheld from United.
The third factor affords United some consideration because it did eventually supply the beams and other structural elements required under the purchase order agreement. Also, NJR has refused payments beyond the $66,074.75 previously remitted, even though the difference between the contract price, $244,672.50, and the shortfall to NJR’s of $151,240 to NJR’s expected earnings from the DOT contract still leaves NJR with a net gain of around $120,000, exclusive of litigation costs.
The fourth factor, United’s potential ability to rectify the deficiency tends to demonstrate that United’s breach was a material one because the seven-week delay in delivery inflicted financial harm on NJR at the time, without any possibility of a "cure" for the loss except nonpayment.
The fifth factor, whether United’s performance comported with the standard of good faith and fair dealing strongly militates against the plaintiff. Instead of candidly and promptly apprising NJR of its inability to supply the beams on time, agents of United conveyed unwarranted assurances and false information to NJR that caused NJR to expend funds needlessly. The court infers that such misleading statements were communicated in response to direct inquiries by NJR regarding the status of the beams, to conceal from NJR the true state of affairs. These deceptive responses deflected NJR from further inquiry and the possibility of devising ways to remedy or mitigate the problem. In other words, United’s agent purposefully left NJR in the dark to obscure its own shortcomings.
Balancing the salient factors, the court concludes that the plaintiff has failed to prove, by a preponderance of the evidence, that it substantially fulfilled its contractual obligations. Where the parties intend that time for performance is of the essence, unexcused delay in completion past the contractual deadline is not substantial performance, JP Morgan Chase Bank, WA v. Cam, 172 Conn.App. 659, 666 (2017).
The mere recitation of an anticipated completion date in a written contract "does not necessarily make time of the essence," Grenier v. Compratt Construction Co., 189 Conn. 144, 151-52 (1983). But in the present case, section 4 of the purchase order agreement explicitly states that time was of the essence. That provision further explicated, "it is essential that the Products be provided to Purchaser in a manner and in accordance with the Schedule so as to permit Purchaser to complete construction of the Project in the fastest and most efficient manner possible."
Also, section 7 specified that United would incur liability "for any and all damages incurred by Purchaser by reason of delays in Supplier’s performance hereunder" with specified exceptions inapplicable to the facts of this case. Section 8 "require[s] that Supplier utilize, at Supplier’s own expense, overtime labor and additional shifts as necessary to overcome the consequences of any delay attributable to Supplier’s default ..." (emphases added).
However, because NJR accepted the beams, despite the seven-week belated delivery, the plaintiff may still be entitled to payment of the contract price by virtue of General Statutes § 42a-2-607(1), which dictates that "[t]he buyer must pay at the contract rate for any goods accepted," (emphasis added). The ambit of Article 2 of the UCC, as embodied in § 42a-2-102, "applies to transactions in goods." Subsection 42a-2-105(1) defines "goods" to embrace "all things, including specially manufactured goods ..." (emphasis added).
Quite understandably, NJR accepted the dilatory delivery in order to make the best of a bad situation. Nonetheless, the "buyer’s acceptance of goods, despite their ... nonconformity, is a watershed," Sun Hill Industries, Inc. v. Kraftsman Group, Inc., 27 Conn.App. 688, 694 (1992). "After acceptance, the buyer must pay for the goods at the contract rate," Id. Acceptance of goods excuses the breach even for material deficiencies, Restatement (Second), Contracts § 246, comment b. "Not only may a party excuse entirely the non-occurrence of a condition of his duty, but he may excuse a delay in its occurrence," Restatement (Second), Contracts § 246, comment b, (emphasis added).
Of course, NJR has a remedy for United’s partial breach of contract in that it can sue for the damages wrought by United’s significant and material delay. NJR has done so by way of its counterclaims in this action.
Therefore, judgment enters in favor of the plaintiff against NJR in the amount of the unpaid contract price, which equals $178,597.75 ($244,672.50 minus $66,074.75) plus costs to be assessed by the clerk.
Little Miller Act
General Statutes § 49-41 et seq. comprise Connecticut’s Little Miller Act, so-called because of the federal counterpart known as the Miller Act, Connecticut Carpenters Benefit Fund v. Burkhard Hotel Partners II, 83 Conn.App. 352, 359-61 (2004). Unlike a breach of contract claim, where the UCC permits recovery of the contract price despite material breach by the claimant, under § 49-41a(c), no liability inures unless the subcontractor/supplier "substantially performed the work according to the terms of ... its employment." United appears to have recognized this requirement and specifically used this language in paragraph 14 of the second count in that it "has substantially performed its work in accordance with the terms of its employment."
Also, § 49-41a(d) provides that a general contractor cannot withhold payment from a subcontractor "because of a dispute [with] another contractor or subcontractor," (emphasis added). By negative implication, therefore, it is permissible to withhold payment if the dispute involves the claimant without incurring liability for nonpayment under § 49-41a.
As the court has found, United failed to perform its obligations under the contract as to a material duty. Consequently, United cannot prevail on the second and third counts of its complaint because of its own substantial breach.
Counterclaim re Breach of Contract
Again, the court has found that United substantially breached the purchase order agreement with NJR by failing to supply the beams by the essential deadline specified in the contract, i.e., June 7, 2016. The court has also found earlier that United’s breaches, in the form of delayed delivery and nonconforming product, caused expectancy damages of $138,990.44, calculated as follows:
| Loss of Incentive Bonus | $60,000.00 |
| Disincentive Penalty | $64,205.00 |
| Additional equipment rental fees (excavator, bulldozer, etc.) | $14,695.44 |
| $138,900.44 |
The court declines to award NJR’s additional claim of $12,218.34 for "ramp up" costs because NJR has failed to prove that these expenses were caused by delayed delivery of the beams.
United’s Failure to Mitigate Claim
United asserts that NJR failed to mitigate its damages by use of expedited measures once the beams finally arrived at the installation site. The court determines the plaintiff has failed to prove this allegation.
"Although a plaintiff does have a duty to make reasonable efforts to mitigate its damages, what constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier," Landmark Investment Group, LLC. v. CALCO Construction and Development Co., 318 Conn. 847, 863, fn.11 (2015) (emphasis added). The burden of establishing the NJR could have employed additional, reasonable effort to minimize the damages caused by United’s breach is on United, Id.
United delivered the beams seven weeks after the June 7, 2016 contract date, under circumstances where prompt delivery by that date was of the essence. Once NJR lost the chance to earn bonuses because of United’s belated delivery, NJR abandoned the more costly fast track program and employed a more typical effort to complete the project. The duty to mitigate only requires use of reasonable methods and not extraordinary and more expensive ones.
Also, the purchase order contract expressly placed upon United the sole burden of bearing the financial harm sustained "for any and all damages incurred by [NJR] by reason of delays in [United’s] performance ..." Section 8(iii) of that contract requires United to pay for NJR’s reasonable attorneys fees in the event United defaulted in timely delivery as it did.
On the first count of the counterclaim, judgment enters in favor of NJR against United in the amount of $138,900.44, plus attorneys fees to be determined at a later hearing, per agreement of the parties.
CUTPA
In paragraph 32 of the second counterclaim, NJR alleges that United violated CUTPA in the following specific ways:
a. Making false representation regarding the progress of its manufacturing process relating to the Project;
b. Failing to advise NJR on numerous occasions that the production and delivery of the precast concrete products were delayed; and
c. Failing to advise NJR in advance of United’s internal production issues.
Our Supreme Court has stated: "[General Statutes § ] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise- in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ... Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy ..." Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350-51 (2010).
NJR does not claim, nor could it, that United’s failure to meet the delivery deadline in the purchase order agreement was, per se, an unfair or deceptive trade practice under CUTPA. "A simple breach of contract ... does not necessarily constitute a violation of CUTPA," Bruno v. Whipple, 162 Conn.App. 186, 210-11 (2015). "Mere incompetence," standing alone, is not a CUTPA violation, Naples v. Keystone Buildings Development Corp., 295 Conn. 214, 229 (2010); Papallo v. Lefebvre, 172 Conn.App. 746, 767 (2017).
Instead, the focus of NJR’s CUTPA claim is the behavior of United’s employee or agent, Tenedine, in communicating to NJR unfounded assurances that beam fabrication was progressing on schedule, and the false declaration by Borkowski that the beams were fabricated and available, so that a delivery date could be scheduled through United’s dispatcher. These prevarications were clearly immoral, unethical, and/or unscrupulous. Such misleading information substantially injured NJR by leading NJR into making unnecessary and/or premature plans and expenditures for labor allocation, equipment procurement, and an inutile construction schedule. Also, customers, such as NJR, were reasonably likely to assume a sense of confidence and security based on these inaccuracies and to pass that misinformation along to others, including the DOT. That put NJR’s competency in a bad light and required an emergency meeting with DOT to seek out some resolution.
Importantly, the unwarranted representations deterred NJR from taking remedial action had it known of the true state of affairs. Applying the cigarette rule, the court concludes that the deceptive conduct of United’s agents and/or employees violated CUTPA.
The court also determines that the CUTPA violations produced ascertainable loses. "An ascertainable loss is a loss that is capable of being discovered, observed or established," Landmark Investment Group, LLC v. CALCO Construction Development Co., supra, 882. An ascertainable loss embraces negative impact which is broader than that connoted by the word "damages" in general, Artie’s Auto Body, Inc. v. Hartford Fire Insurance Co., 287 Conn. 208, 218 (2008). No specific dollar amount need be proven, Id. The loss, however, must be measurable, even if imprecisely, Id. The burden is on NJR to demonstrate that the unfair or deceptive acts by United’s staff were "the proximate cause of harm to the [NJR]," Landmark Investment Group, LLC v. CALCO Construction Development Co., supra, 882-83; Scrivani v. Vallombroso, 99 Conn.App. 645, 651-52 (2007).
In some cases assessing an ascertainable loss presents a formidable challenge. However, in this case, NJR expended definite monetary sums to rent equipment and to reschedule other subcontractors and/or utility providers access dates to the site based on United’s exaggerations about its readiness to supply the beams. The belated delivery reasonably motivated NJR to keep its own or rented equipment at the site for more extended time than anticipated in order to install the beams quickly and efficiently when they finally arrived. Because NJR reasonably expected to have possession of the beams by June 7, 2016, NJR staff contemplated that other bridge work, unrelated to the installation of the deck, would be facilitated by the existence of a completed deck that could be used to transport equipment from one side of the Hockanum River to the other in short order.
Instead, NJR had to work around the lack of a usable bridge in the later stages of the project by procuring duplicate equipment for use on each side of the river. The court has calculated these additional costs earlier in this memorandum to be around $14,700. Because this ascertainable loss under CUTPA is also part of the damages awarded as to the breach of contract counterclaim, the court recognizes that satisfaction of the judgment as to the breach of contract count will satisfy the CUTPA award of damages. Also, the court declines to award additional attorneys fees because the court has already granted such fees based on the contractual provision cited above.
It should be noted that the court awards no CUTPA damages for the late delivery per se, i.e. the loss of incentive bonus sums and imposition of the DOT penalty. This is because the unfair/deceptive conduct by United’s personnel did not proximately cause those losses. Even if United’s agents had acted forthrightly, the beams would still have been unavailable until July 26, 2016. Whether NJR could have procured substitute beams, convinced the DOT to waive the penalty, or lessened the financial impact in some other way remains speculative.
Judgment enters on the second counterclaim in the amount of $14,700.
To summarize, United prevails on its breach of contract claim against NJR as specified above. Aegia prevails as to United’s Little Miller Act claim. NJR prevails against United on both its breach of contract and CUTPA counterclaims.