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****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** TOWN OF BERLIN v. NOBEL INSURANCE COMPANY (AC 19444)
Spear, Hennessy and Daly, Js. Argued June 5--officially released September 19, 2000 Counsel

E. Timothy Sullivan, Jr., with whom was Anthony V. Zeolla, for the appellant (plaintiff). Kathleen A. St. Onge, with whom, on the brief, were John B. Farley and Gregory R. Faulkner, for the appellee (defendant).
Opinion

HENNESSY, J. The plaintiff, the town of Berlin, appeals from the judgment of the trial court denying its application for a permanent injunction to prohibit the defendant, the Nobel Insurance Company,1 from proceeding to arbitration in connection with a dispute concerning a contract to build a running track at Berlin High School. The plaintiff claims that the court abused its discretion by (1) determining that an arbitration clause was contained in the parties' ``takeover agreement,'' under which the defendant agreed to complete the project, which had been left unfinished by

the contractor, and (2) denying the application for a permanent injunction. We affirm the judgment of the trial court. The following facts are relevant to this appeal. The defendant, an insurance and bonding company, served as the surety for and guaranteed the performance of the Lomaglio Construction Company (Lomaglio), a contractor hired to construct the track at the school. Lomaglio, as the bond principal, provided performance bonds. In 1993, the defendant had posted the bonds, which named the plaintiff as the obligee. After Lomaglio failed to complete the work, the plaintiff, in October, 1993, terminated Lomaglio's contract and looked to the defendant to complete the work. The defendant arranged for completion of the work. The plaintiff and the defendant then entered into a written takeover agreement in November, 1993, in which the defendant agreed to perform ``all work and all other obligations of the contract [between the plaintiff and Lomaglio] called for under the said contract [not] presently completed or fulfilled, pursuant to the terms of the existing contract documents.'' The takeover agreement incorporated by reference the original contract between the plaintiff and Lomaglio. Lomaglio brought an action against the plaintiff for breach of contract while the defendant completed the work under the contract. Lomaglio never pursued its lawsuit, which was subsequently dismissed for failure to prosecute with due diligence. The defendant eventually completed its obligations under the takeover agreement in accordance with the terms of the agreement. The defendant, in June, 1997, commenced arbitration proceedings against the plaintiff before the American Arbitration Association, seeking damages for the plaintiff's alleged wrongful termination of Lomaglio, and its alleged failure to compensate Lomaglio and the defendant for additional work done under the contract. Thereafter, the plaintiff commenced an action against the defendant, seeking a judgment declaring that the disputes with the defendant were not subject to arbitration and a temporary injunction staying the arbitration proceedings pending the outcome of the declaratory judgment action. The court concluded that the takeover agreement contains an arbitration clause because it incorporated the contract between the plaintiff and Lomaglio. The court also denied the plaintiff's application for a permanent injunction. The plaintiff now appeals from that decision. As a preliminary matter, the plaintiff argues to this court that the defendant has waived its right to arbitration because it is bound by the consequences of Lomaglio's having filed an action against the plaintiff. We disagree.

Although it is true that arbitration is a favored procedure in this jurisdiction, it also is true that an arbitration clause can be waived by the parties or by the one entitled to its benefit. Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 435, 324 A.2d 267 (1973). One may waive a right to arbitration by going to trial without insisting on the arbitration condition. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 11, 110 A.2d 464 (1954). The plaintiff contends that when Lomaglio brought the breach of contract action against the plaintiff, it waived its right under the contract to arbitration, and that the defendant now is bound by that waiver because it incorporated into its takeover agreement by reference the wording of the contract between the plaintiff and Lomaglio. The takeover agreement between the plaintiff and the defendant required the defendant to ``take over and perform, or procure the performance of, all work . . . pursuant to the terms of the existing contract documents.'' The defendant incorporated by reference the wording of the contract between the plaintiff and Lomaglio. The defendant did not, by doing so, become bound by the consequences of the fact that Lomaglio initiated a civil action against the plaintiff. The takeover agreement between the plaintiff and the defendant is a separate and distinct contract, and there were no actions taken by the defendant that would warrant our concluding that it waived its right to request that the dispute be placed before an arbitrator. I The plaintiff claims that the court improperly found that the takeover agreement incorporates the arbitration clause from the contract between the plaintiff and Lomaglio. The plaintiff claims that the takeover agreement with the defendant does not contain a written arbitration clause consistent with the requirement of General Statutes

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