As stated in the 1933 Connecticut Supreme Court case of Rosenthal v. State Bar Examining Committee, "[t]he basic conception of a waiver is that it is intentional; it cannot be established by a consent given under a mistake of fact." Worth Construction Company, Inc. entered into a contract with the Connecticut Department of Public Works to construct additions and renovations to Engelman Hall at Southern Connecticut State University for $33,497,050. The contract authorized the state to assess liquidated damages of $3000 per calendar day that Worth failed to complete the project "within the [c]ontract [t]ime," defined as 1462 days ending on June 12, 2005. It was undisputed that Worth reached substantial completion on Aug. 25, 2005, 74 days after June 12. 2005. The department's director of project management, Scott Jellison notified Worth by certified letter that liquidated damages would be assessed. Thereafter, the department's project manager, Randy Daigle, completed a liquidated damages assessment field report form and field report in which he miscalculated the total days for substantial performance, adding in an additional 90 days. He concluded that no days were subject to liquidated damages. Worth commenced a breach of contract action against the department alleging a failure to pay $1,434,068.87. The department filed an answer, special defenses and a three count counterclaim including, relevantly, a claim for liquidated damages of $3000 per day for 74 days totaling to $222,000. Following a bench trial, the court found for the department on the complaint and counterclaim for liquidated damages. Worth appealed contending that the trial court erred in failing to find that the department did not waive its claim to liquidated damages. through Daigle's actions. The Appellate Court affirmed the judgment. The record was bereft of evidence indicating that Daigle intelligently and intentionally waived the claim to liquidated damages. The record plainly indicated that Daigle lacked knowledge that the department had the right to assess liquidated damages when he prepared the reports. Daigle testified, and the trial court found, that but for Daigle's mistake of fact, his calculation would have agreed with Jellison's letter to Worth. The Appellate Court agreed with the trial court that Daigle's field reports erroneously indicating 1552 total days to substantial completion "contained a mathematical error which should have been obvious …on its face."

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