AA MASON, LLC v. MONTAGNO CONSTRUCTION, INC. ET AL.

2004 Ct. Sup. 15895
No. CV 01-0809850Connecticut Superior Court, Judicial District of Hartford at Hartford
October 22, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION FOR RECONSIDERATION
SATTER, JUDGE TRIAL REFEREE.

The plaintiff moves this court to reconsider its decision of August 2, 2004, with respect to awarding Montagno back charges of $24,815.10 on the rebar issue.

As the basis for its motion for reconsideration, the plaintiff contends the court incorrectly interpreted structural drawings for the Bloomfield job by indicating they are “at best ambiguous about rebars and the cement block wall because it does show a faint line which could indicate that rods were to be placed in the holes of the cement blocks.” The plaintiff is right. At the reargument plaintiff’s attorney pointed out that the faint line in those structural drawings connoted the center line of the wall and did not prescribe rebars. He also persuasively stressed the difference between the drawings for that job with drawings for the Rocky Hill job in which rebars are indicated by a dark line and a notation of number 4 to specify the size of the rebars. At oral argument, defendant’s attorney conceded the structural drawings for the Bloomfield job did not specify rebars.

This raises an inconsistency between the contract of the parties, the building code, the structural drawings, and provisions of “Trade Division 04200 masonry,” which together with the notes on the drawings, attorneys agreed were the specifications of the jobs.

The contract clearly provides, as to the scope of the work, “install and grout rebar furnished by others.” The State Building Code provides at Section 10.5.2.3(b): “vertical reinforcement shall consist of at least one number 4 bar spaced not more than 48 in. (1219 mm). Vertical reinforcement shall be located within 16 in. (406 mm) of the ends of the masonry walls.” The court quoted from the Trade Division 04200 Masonry Section 1.2B “All masonry construction shall comply with the Seismic Requirements CT Page 15896 of Local Building Code and the Structural Engineer’s Drawings and Specifications,” and at Section 1.2B, 1, “The location of the vertical and horizontal reinforcement bars shall be in accordance to the structural drawing.” The court now finds that the structural drawings for the Bloomfield job do not depict rebars.

The original opinion of this court neglected to add the second line of Section 1.2B to the following effect, “Where there is a difference in requirements, [i.e. between the building code and the structural drawings,] the more stringent requirement shall prevail.”

The facts of this case are that the plaintiff did not breach the contract deliberately or in bad faith. The practice of masons in the trade, as Mr. Cirinna testified, was to rely on the structural drawings. When Mr. Cirinna started the work by putting up the freezer wall, he told Mr. Salvatore (Montagno’s superintendent) that the drawings did not require rebars and Mr. Salvatore said not to put them in. Although the court believes Mr. Salvatore that he did not instruct Mr. Cirinnia to refrain from putting rebars in the other walls, there is no evidence that Mr. Salvatore specifically directed the plaintiff to put the rebars in the other walls.

As the court pointed out in the original decision, the plaintiff constructed the walls over a period of three weeks at which time Montagno’s superintendent was on the job every day and its project manager there three times a week. The manner of installing rebars in cement block walls made it inconceivable that Montagno’s supervisory personnel did not observe the walls being constructed, incorrectly, yet Montagno did not stop the plaintiff.

If this were a tort case, the doctrine of comparative negligence would apply. The analogous principle in contract cases is that of mitigation of damages or of avoidable consequences Preston v. Keith, 217 Conn. 12, 16, fn.5 (1991), 22 Am.Jur.2d Damages §§ 343, 351. That principle states “that a party cannot recover damages flowing from consequences that the party could reasonably have avoided.” 22 Am.Jur.2d Damages, § 340 (2003).

Although the rule cannot be applied when both parties have equal opportunity to minimize damages, 22 Am.Jur.2d Damages, § 354 (2003), the facts of this case reveal that Montagno must bear considerable responsibility for the walls being installed without CT Page 15897 rebars. The structural drawings had been prepared by the architect and approved by the Bloomfield building inspector, and as Mr. Cirinna testified, it was the practice in the masonry trade to rely upon those structural drawings. Mr. Salvatore assured Mr. Cirinna that he did not have to put the rebars into the freezer wall because the structural drawings did not require them. Mr. Cirinna could reasonably have inferred he did not have to put them into the other walls. Mr. Salvatore never directed the plaintiff to put the rebars into the walls and the supervisory personnel of Montagno, who must have seen the manner of construction of the walls, also did not stop the plaintiff and demand the installation of the rebar. Mr. Cirinna testified that it was a simple task to install the rebars at the time of construction of the walls. He made an honest mistake in this regard but he did not breach the contract in bad faith. See S.J. Grover Sons Co. v. Warner Co., 576 Fed. 2nd, 524, 530 (3rd Cir., 1978).

The cost of $24,815.10 to install the rebars after the walls were finished was one that could have easily been avoided by Montagno exercising a minimum supervisory responsibility. As a consequence, the court concludes that 25% of that cost should not be allowed as a backcharge by Montagno for its failure to minimize damages.

Based on the foregoing, the court recalculates the damages in this case as follows:

To recapitulate:

Contract price $125,000

Montagno payment to plaintiff $5,087.50

Montagno payment to suppliers $35,194.96

Montagno expenses to complete contract $52,011.00

Montagno back charges

a. Rebar issue $18,611.00

b. Other back charges 12,729.00

$123,633.46 CT Page 15898

Net due Plaintiff $1,366.54

The court concludes the plaintiff is due on the Maple Hill-Rocky Hill project $5,170.75 and the plaintiff is due on the Bloomfield job $1,366.54. Accordingly, the court enters judgment for the plaintiff in the amount of $6,547.29. The issue of attorneys fees will be determined after a hearing.

BY THE COURT

Robert Satter Judge Trial Referee

CT Page 15899