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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 Gregory R. Faulkner and Elizabeth K. Wright, for the appellant (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.,

appeals1from 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 abatement 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 interference, 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. Consistent 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 renovate and expand the school by updating the existing

structure and building a large addition. Before beginning 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 significant 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 abatement, 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, contracted 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 provided 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, prosecution 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 uncontemplated . . . .’’

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 . . . .’’ (Emphasis 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,rescheduling 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 percent 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 ‘‘admitted 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 presented 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 plaintiff’s work during the summer of 2007. To avoid application ofthe ‘‘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 unreasonably 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 provide 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 Transportation, 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 plaintiffto 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 abatement openly in public meetings, and that its retention

of asbestos contractors was public information. Furthermore, 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 interfere with construction.

After a court trial with some testimony from the plaintiff’s witnesses and many stipulated facts, the trial court

found in favor of the town on the plaintiff’s active interference and White Oak claims. In its memorandum of

decision, the trial court concluded that the active interference 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 thatthe 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 inaccurate contract documents and, in any event, the plaintiff 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 contract’s ‘‘no damages for delay’’ clause; and (2)the exceptions 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 improperly concluded that the town’s conduct did not satisfy

the contract’s active interference exception. The plaintiff 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 interference’’ 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 construction, amounted to active interference. Alternatively, the

plaintiff claims that the town actively interfered by failing 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 contracts. Here, the town explains, Connecticut has no

separate, judicially created active interference exception, 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 plaintiff’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 evidence 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, 303Conn. 1, 7–8, 35A.3d 177 (2011).

We need not repeat our prior recitations of those principles 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 evidence beyond the contract language for guidance as to

whatthe parties intended. Id.Interpretation of unambiguous 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 & PowerCo. 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 seeking an extension of time to complete their work. These

clauses are generally enforceable subjectto certain judicially 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 exceptions to enforcement 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 conduct, (2) uncontemplated delays, (3)

delays so unreasonable that they constitute an intentional abandonment of the contract by the [owner],

and (4) delays resulting from the [owner’s] breach of

a fundamental obligation of the contract.’’(Internal quotation 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 egregious 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 permitting 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 parties did not define what they meant by ‘‘active interference,’’ but did carve out certain conduct from its

meaning. According to the contract, ‘‘the [town’s] exercise of any of its rights or remedies under the [contract]

[d]ocuments (including without limitation, ordering

changes in the work, or directing suspension,rescheduling 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 interference’’ 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 ownerthat unreasonably
interferes with the contractor. See, e.g., Pellerin Construction, Inc. v. Witco Corp., 169 F. Supp. 2d 568, 583

(E.D. La. 2001) (noting that active interference exception ‘‘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 Transportation, 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, however, struggled to identify a precise definition of ‘‘active

interference.’’ Pellerin Construction, Inc. v. Witco

Corp., supra, 169 F. Supp. 2d 583. The cases are generally 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 notrequired 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 distinct 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 ‘‘interference.’’ 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 theories 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 interference’’ 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-Webster’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.’’ Tricon 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 Constructors, Inc., supra, 325 S.C. 134.

Second, because the clause at issue in this case

expressly excluded from the definition of active interference 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 interference. 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 contracting 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 contractor] 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. Metropolitan Government of Nashville, supra, 2003 WL 21302974,

*14 (‘‘When . . . contracts contain ‘no damages for

delay’ clauses, bidding contractors remain free to formulate 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’’ standard, ‘‘[h]e found what he wanted . . . .’’ The only evidence 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 evidence 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 decision. 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 quotation marks omitted]).

We therefore conclude that to establish active interference, the plaintiff must prove that the town committed 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 specifications interfered with the plaintiff’s ability to complete

its work. We address each claim in turn.

As forits 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 conditions, satisfies the active interference exception. See,

e.g., Dennis Stubbs Plumbing, Inc. v. Travelers Casualty & 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 ‘‘historically [has] been the gravamen of triable active interference 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] knowledge that delay-causing circumstances exist which will

likely prevent the contractor from timely proceeding

with its work’’ is sufficient to establish active interference); 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 itrequired contractorto fabricate steel prematurely,requiring contractor to incur storage and repainting expenses). We agree

thatthis type of conduct would meetthe contract exception, 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 contractor to manufacture steel prematurely for project

when it was ‘‘obvious’’ that project was not ready for

steel installation); Gasparini Excavating Co. v. Pennsylvania 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 interference sufficiently affirmative and wilful to avoid application 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 starting construction, the town avoided potential complications 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 construction. 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 representatives 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, supported 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 environmental consultant suggested, that the remaining asbestos 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 concealment by the town. Interference as a result of a mistake

or an oversight is not enough to satisfy the active interference 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 contemplated by the parties’’ at the time of contracting.

The plaintiff next claims that the town actively interfered 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 contractors. 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

thatthe 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 contract, including ‘‘ordering changes in the work, or directing 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, irrespective of the extent and frequency that the town exercised 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 governmental entities. As found by the trial court, the plaintiff 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 sophisticated commercial entity such as the plaintiff.’’

The parties fully anticipated that additional asbestos

might be found as the project unfolded and that abatement 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 consultant.’’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 Construction 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 provide 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 anticipated 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 interfere 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 [unfinished 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 coordination of the contractors and handling of the project specifications 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 exceptions to the enforcement of ‘‘no damages for delay’’

clauses set forth in White Oak Corp. v. Dept. of Transportation, supra, 217 Conn. 289. In White Oak, following

New York law, we adopted four exceptions to enforcement 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 conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional

abandonment of the contract by the [owner], and (4)

delays resulting from the [owner’s] breach of a fundamental obligation of the contract.’’ (Internal quotation

marks omitted.) Id., quoting Corrino Civetta Construction Corp. v. New York, supra, 67 N.Y.2d 309. The plaintiff’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 forthe first exception, the plaintiff’s claim is familiar and is based on its allegations that the town concealed delay causing conditions from the plaintiff and

nevertheless ordered it to begin work despite knowledge of these conditions. The plaintiff argues that this

conduct meets the bad faith and gross negligence exception in White Oak. We disagree.

The town’s conduct did not amount to active interference 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 interference’ ’’). We have already determined in part I A of

this opinion that the town did not actively conceal the
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 demonstrated 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 specifications to reflect the remaining asbestos work; and (2)

by not providing the plaintiff with site access to complete 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 specifically designed to protect the [owner] from claims

for delay damages resulting from its failure of performance in the ordinary, garden variety ways, delay damages may be recovered in a breach of contract action

only for the breach of a fundamental, affirmative obligation 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 improvements . . . .’’ (Citations omitted.) Corrino Civetta

Construction Corp. v. New York, supra, 67 N.Y.2d 313.

We conclude that the plaintiff did not prove a fundamental 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 complete 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 plaintiff 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 courtto theAppellate

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 undiscovered 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 interference 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 schoolto gain a better understanding 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 project’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 disclose 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 conclusion. 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 contractor. 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 construction 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 contractor 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.