This is a contract action brought pursuant to General Statutes § 49-42
Colossale, as general contractor, built the pool pursuant to a contract with the city of Torrington. Pursuant to an agreement with the defendant Colossale, the plaintiff, a swimming pool contractor, was to supply the labor and material for the installation of a stainless steel overflow system, drain piping, and forms for a gutter groove channel in connection with the pool construction. In conformity with General Statutes § 49-41
The plaintiff alleged that it had performed labor and furnished material for the pool project commencing in October, 1982, and terminating in July, 1984. At trial, through its president, Walter Liff, the plaintiff offered evidence that it had properly completed its portion of the Torrington pool contract and that there remained a balance due it of $25,817.84. It is undisputed that this balance remained unpaid for more than ninety days after the plaintiff last supplied labor or material to the job, before Nor'easter commenced suit under § 49-42 in October, 1984.
The defendant's president, Dominic Colossale, testified that Colossale had not paid the balance due on its contract with the plaintiff because the plaintiff's work was defective. He claimed that there were leaks in two of the drains installed by the plaintiff and that the city of Torrington would not accept the pool or pay Colossale the unpaid balance of approximately $75,000 on Colossale's contract with the city until the leaks were fixed. Dominic Colossale also testified that it had cost his company considerable money to locate the leaks and that he and others had attempted, without success, over a period of three years, to induce the plaintiff to correct the problems.
The trial court found for the plaintiff and rendered judgment for Nor'easter to recover from the defendants the total amount claimed of $25,817.84 together with costs and interest at the legal rate from July 6, 1984.
On appeal, the defendants claim that the trial court erred in: (1) awarding damages to the plaintiff when it had found for the defendants "on the issue of performance
The defendants first claim that the plaintiff cannot prevail because the trial court resolved the question of whether the plaintiff had performed its obligations under the contract with Colossale in the defendants' favor. That simply is not so. It is true that at the beginning of its memorandum of decision the trial court appears to have found "that the drains which Nor'easter had installed were leaking."
Whether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine. Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982); Randolph Construction
Upon reviewing the entire record we can find no reason to disturb the trial court's finding that the plaintiff had substantially completed the contract with the defendant and was entitled to recover the full amount of its claim. The trial court's factual findings and ultimate conclusion are adequately supported by the record and are not clearly erroneous. Practice Book § 4061; see also Pandolphe's Auto Parts, Inc. v. Manchester, supra; Howie's Painting Service, Inc. v. Ferreria, 12 Conn.App. 583, 584, 532 A.2d 1318 (1987).
The defendants next contend that the trial court erred when it determined that it was unnecesssary for the plaintiff to give the defendants the notice required by General Statutes § 49-41a (b)
At all relevant times, § 49-41a (b) provided that if payment was not made to a subcontractor in accordance with the requirements of § 49-41a (a), "the subcontractor shall set forth his claim against the general contractor ... by registered or certified mail. Ten days after the receipt of that notice the general contractor shall be liable to its subcontractor ... for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor ... shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest bearing escrow account in a bank in this state...." (Emphasis added.) Section 49-41a (b) also provided that the general contractor could refuse to place the funds
At all relevant times § 49-42 (a) provided that every person who had furnished labor or material in the prosecution of the work provided for in a public works contract for which a payment bond was furnished under the provisions of § 49-41, and who had not been paid in full within ninety days after last performing labor or furnishing material, had the right to sue on the payment bond for the amount unpaid at the time of the institution of suit. It further provided that a person having a contractual relationship with a subcontractor, but none with the general contractor furnishing the payment bond, had a right of action on the payment bond, upon giving written notice detailing his claim, by registered or certified mail, to the general contractor within ninety days from the day on which that person last performed the labor or furnished the material for which the claim was made. Section 49-42 contained no provision that such notice was a prerequisite to a cause of action by a subcontractor who had a direct contractual relationship with the general contractor who had furnished the payment bond. It is the defendants' position, however, that § 49-41a (b) required the plaintiff to give the general contractor, Colossale, the notice provided in that statute before commencing suit under § 49-42. This, they claim, fills in a gap in the statutory scheme authorizing suit against the general contractor by a subcontractor with a direct contractual relationship. We disagree.
Section 49-42 has its remote genesis in chapter 118 of the Public Acts of 1917.
In 1941, the legislature enacted General Statutes § 695f,
In his remarks on the floor of the Senate while introducing and urging the passage of Senate Bill No. 536, which became Public Acts 1969, No. 427, Senator John F. Pickett stated that "[t]he obvious reason for the bill
It would be incongruous for the legislature to engraft a jurisdictional notice requirement on § 49-42, a statute that had existed in substantially the same form for over a quarter of a century prior to the enactment of § 49-41a (b), without spelling out that requirement unambiguously, let alone not mentioning it at all. If § 49-41a (b) were meant to create a notice requirement for the institution of suit under § 49-42 somewhere in its original wording, in its many revisions, or in its legislative history, such an intention would probably have been expressed in some form. Lacking such an expression we cannot imply the interpretation urged by the defendants. "In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language." Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954); Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979).
Moreover, it is clear from its plain language and its legislative history that the purpose of § 49-41a (b) is to
The defendants' final claim is that the trial court incorrectly awarded the plaintiff prejudgment interest on its claim. It is the defendants' contention that compliance with the notice provision of § 49-41a (b) is a prerequisite to an award of prejudgment interest to a subcontractor on a judgment obtained as a result of a suit on a statutory payment bond under § 49-42. We disagree. For the reasons set forth in part II of this opinion we conclude that the remedies afforded subcontractors by §§ 49-41a (b) and 49-42 are independent and that the plaintiff's failure to give notice of its claims under the provisions of § 49-41a (b) did not prevent the trial court from awarding prejudgment interest at the statutory rate.
Interest "may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes due and payable." General Statutes § 37-3a. The allowance of interest as an element of damages is primarily an equitable determination and a matter within the discretion of the trial court. Milgrim
There is no error.
In this opinion the other justices concurred.
"(b) Every suit instituted under this section shall be brought in the name of the person suing, in the superior court for the judicial district where the contract was to be performed, irrespective of the amount in controversy in the suit, but no such suit may be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by him.
"(c) The word `material' as used in sections 49-41 to 49-43, inclusive, includes the rental of equipment used in the prosecution of work provided for in the contract."
"(b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interestbearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney's fees of such party."
"Any officer or agent contracting in behalf of the state or any sub-division thereof for the construction, alteration, removal or repair of any public building or of any bridge constructed under the provisions of chapter 337 of the public acts of 1915, shall require from each contractor, as a condition precedent to the execution of a contract for any such construction, alteration, removal or repair, a bond with sufficient surety, which bond shall be conditioned for the faithful excecution of the contract according to its provisions and for the payment for all materials or labor furnished in the execution of such contract. Any person, firm or corporation having any claim for materials and labor furnished in the execution of any such contract, shall file with the officers or agents contracting for any such construction, alteration, removal or repair, a statement of such claim within sixty days after he ceased to furnish such materials or labor, which claim, if correct, shall be paid by such officer or agent, who shall recover the amount thereof with costs from the surety on such bond."
The 1987 legislature, however, effected no changes in General Statutes § 49-41a (b). Therefore, if we were to agree with the defendants' interpretation of § 49-41a (b), there now would be two separate, and different, notice requirements for the same statute for a subcontractor having a direct contractual relation with the general contractor.