Date: Fri 01-May-1998

Publication: Bee

Author: ANDYG

Quick Words:

Kennedy-Electrical-lawsuit

Full Text:

Electrical Contractor Sues Town Over Work At The High School

PAGE ONE

B Y A NDREW G OROSKO

An electrical contracting corporation is suing the town and two individual

members of the Public Building and Site Commission, claiming that it did not

receive full payment for work it did in upgrading Newtown High School and

helping build the school's new wing.

In a lawsuit filed April 24 in Litchfield Superior Court, Kennedy Electrical

Contractors, Inc, (KEC) of Torrington states it was hired on June 27, 1996,

following its submission of a competitive bid. KEC entered into a contract

with the town to do the electrical work for a project known as "Additions,

Modification and Code Update to The Newtown High School, State Project No.

097-099."

According to the lawsuit, the original contract price for the electrical work

was $2,335,180. After construction changes and approved extra work orders were

made, the adjusted contract price became $2,608,548, it states.

Scheduling for the project required KEC to start work on July 1, 1996, and to

complete it on or before December 1, 1997, it adds.

O&G Industries, Inc, of Torrington was the construction manager on the project

and Kaestle Boos Associates, Inc, of New Britain was the architect. KEC's work

contract with the town provided that O&G and Kaestle Boos were obligated to

review and approve KEC's payments for work properly done, to certify KEC's

applications for payment by the town, and to process those payments, according

KEC's lawsuit against the town.

Despite the town's failure to provide KEC with timely access to the site so it

could do its work, KEC finished all its work on time, the suit states.

According to the lawsuit, starting in January and February of 1998, O&G and

Kaestle Boos failed and refused to properly submit and process KEC's

applications for payment. Consequently, KEC has not been fully paid for its

completed work, the suit alleges. KEC claims it is owed approximately $182,000

by the town.

The town and its agents have thus breached KEC's contract, according to the

suit.

In a second count, KEC alleges the town acted arbitrarily, capriciously and

with destructive intent and malice toward KEC and sought to harm KEC because

it is "an open shop non-union contractor." The lawsuit adds the town

selectively and intentionally paid other contractors on the project that had

union affiliations.

In a third count, the lawsuit names Anthony W. DeCarlo of 98 High Rock Road,

Sandy Hook, and John J. Lipusz of 11 Wildcatt Road, both of whom are members

of the Public Building and Site Commission, as individual defendants in the

civil case.

The suit states Messrs DeCarlo and Lipusz are both trade union members and

have repeatedly and without justification demonstrated unwarranted animosity

toward KEC solely because KEC is a non-union contractor.

Messrs DeCarlo and Lipusz illegally used their positions to wrongfully

interfere with KEC's contractual relations with the town by repeatedly

ordering the town's agents to delay, table, or set aside KEC's legitimate

requests for payment, the suit adds. The suit alleges the defendants' acts and

omissions have been malicious and intentional and intended to harm KEC.

In a fourth count, the plaintiff alleges the defendants' actions were unfair,

deceptive, intentional and malicious.

A fifth count alleges KEC was forced to work on the project out of sequence

and in a shorter time period than it reasonably anticipated. Thus, KEC was

forced to increase its crew sizes and the hours worked by its crews, causing

the company to expend almost 60 percent more labor hours at an increased cost

to it of $506,546, the suit states. The contractor is seeking to recoup these

losses from the town through the lawsuit.

Through the lawsuit, the electrical contractor seeks money damages, interest

and costs; exemplary damages under the second and third counts; attorney fees

and tripled damages as per the fourth count, and other relief deemed proper by

the court.

Attorney Steven B. Kaplan of the law firm Michelson, Kane, Royster and Barger,

P.C. of Hartford represents KEC in the lawsuit.

Town Response

First Selectman Herbert Rosenthal said Wednesday, "I ordered payment when the

(Public Site and Buildings Commission) had denied payment on a couple of the

bills." In those bills, KEC sought overtime payments, he said.

Mr Rosenthal said he intervened in the matter on behalf of KEC.

The first selectman said he needed to review the minutes of the commission's

meetings to gain a deeper sense of what occurred.

If Messrs DeCarlo and Lipusz gave KEC a hard time, it would be a very serious

matter, Mr Rosenthal said.

Members of the commission are appointed by the selectmen and also can be

removed by the selectmen, Mr Rosenthal said.

"I don't want to admit liability in this lawsuit in any manner," he said.

He termed the language of the lawsuit "intense."

On Thursday, after having read some recent minutes of the Public Building and

Site Commission, Mr Rosenthal said, that without regard to the pending

lawsuit, he was very disappointed to read what he termed the "irresponsible

and intemperate" comments of Mr Lipusz. The first selectman said Mr Lipusz had

characterized workmanship at the high school project as "horrible" and also

had attacked the school board, blaming it for problems with the school

expansion project.

Mr Rosenthal said the lawsuit will be referred to town lawyers for review. The

town has a May 12 court appearance date in the matter.