Timothy Fisher, Esq.; McCarter & English — In a decision followed closely by the construction industry, Connecticut’s Supreme Court has issued a unanimous decision confirming a long-standing rule that statutes of limitations do not run against the State.
The ruling came in the lawsuit brought by McCarter & English working closely with the Attorney General’s office on behalf of the State of Connecticut against the contractors and designers responsible for over $18 million in defects at the law library building of the UConn Law School. State of Connecticut v. Lombardo Brothers Mason Contractors, Inc., 307 Conn. 412, 2012 WL 5382217 (Conn.). The building was designed in 1992, and built starting in 1994, reaching substantial completion in 1996. While it exhibited leaks from early on, it was not until 2004 that the State concluded that there were serious flaws in the building’s envelope and structure. Corrective work commenced in 2007, revealing widespread defects in concealed work, including the omission of half of the building’s reinforcing bars in its structural wall.
The State commenced suit in 2008, twelve years after substantial completion. The State had postponed legal action largely in reliance on the doctrine that time periods do not run against the State. The rule is related to but separate from the doctrine of sovereign immunity, and has traditionally exempted the State from statutes of limitations, statutes of repose, laches, or any other time period generally applicable to private litigants. The rule is of ancient origin, reflecting both policy considerations regarding protection of the State’s fiscal condition, and the concept that the rules issued by the sovereign do not bind the sovereign itself unless explicitly stated.
The twenty-eight defendants moved to dismiss the case on multiple grounds related to the passage of time. While the trial court agreed with the defendants, the Supreme Court reversed. In doing so it spelled out the scope of the State’s protection and the statutory language that would be needed for any time-based defenses to run against the State. Among the elements of the case’s holdings were: the doctrine (often referred to by its Latin name nullum tempus occurrit regi) has always been the rule in Connecticut, as it is in most states, as part of the common law carried over from English legal traditions; the rule has never been abrogated in Connecticut, and the Legislature’s silence in the face of past court decisions can be interpreted as a willingness to let the rule continue; limitation periods intended to protect classes of defendants are inapplicable to the State unless the State is explicitly identified as one of the parties to be barred after the passage of time; and there is no difference between statutes of limitations and statutes of repose for purposes of the rule.
The Supreme Court identified only two situations where a time period would run against the State. The first is when the statute explicitly names the State as a party against which the time runs (or the language of the statute allows for no other possible interpretation). The second is where the State’s claim is based on a statute (not the common law) that itself includes a time limitation as inherent in the rights established by the statute.
The Court also struck down a defense offered by one of the defendants based on a specifically negotiated limitations period in its contract. The construction management contract between the State and Gilbane Building Company provided that any claim by the State against Gilbane had to be brought within the time period (seven years) applicable to design professionals. The Supreme Court held that the nullum tempus doctrine can be waived only by the Legislature itself, and so a contract provision to that effect negotiated by a State officer was not binding on the State.
While the case related to a State of Connecticut project, the decision will also affect claims by political subdivisions of the State. Many of the authorities relied on in the decision apply to towns or other public agencies. Further caselaw may develop the full extent of the protection available to towns, regional districts, and other governmental entities.
This ruling also has importance nationwide. Only a few states have abrogated the doctrine underlying this decision. It continues to have vitality in most jurisdictions, and Connecticut’s decision is only the latest to reaffirm that the rule continues to this day. For contractors and designers, it heightens the need for diligence regarding the quality of work on public projects, as defects discovered years after completion can still lead to legal exposure. It also stands as a warning that document retention programs should take account of the extended time periods applicable to claims by state governments.
Timothy S. Fisher, Esq.
The McCarter & English Construction Practice Group
This article is published in ConstructionRisk.com Report, Vol. 14, No. 11 (Dec 2012).
Copyright 2012, ConstructionRisk, LLC