Louis Pepe
Connecticut's construction lawyers are grappling with the implications of what might be called the biggest law they never knew about.
With the recent decision in State v. Lombardo Brothers Mason Contractors, et al., a unanimous Connecticut Supreme Court squarely holds that the state of Connecticut is not bound by statutes of limitations or repose when it wants to sue years later, thanks to a centuries-old doctrine known as "nullum tempus."
The ruling means that a lawsuit the state filed over construction defects at the University of Connecticut School of Law library will be allowed to proceed, even though the lawsuit was filed 12 years after the library was built. The big decision being watched by construction lawyers across the state has put public contractors on notice to be especially careful about quality, document retention, and insurance coverage.
The decision also highlights the doctrine of "nullum tempus occurrit regi," which means that time does not run against the king. It's been described as the flip side of the sovereign immunity doctrine and has escaped notice because it is almost never invoked.
The library was designed in 1992 and finished in 1996. Leaks were discovered almost immediately. The state spent years and $22 million dollars trying to fix the problem with the help of forensic engineers. In 2008, when the state filed the lawsuit against 15 entities involved in the project to recover its losses, all of the defendants said they were shielded by the statute of limititions.
A trial judge in 2009 ruled that the state could not sue, because the statute of of limitations had run and the doctrine was not part of the state's common law. Now, to the dismay of construction lawyers, architects, engineers and contractors, the court made clear that it's never too late for the state to sue.
Furthermore, the high court held that the Department of Public Works commissioner could not, even by contract, give a vendor statute of limitations protection.
Only the legislature is empowered to chip away at these core doctrines protecting the state, the court ruled, and any such limitations are construed narrowly. Richard N. Palmer, writing for the court, held that "we find no merit in the defendants' contention that the rule of nullum tempus never was adopted in Connecticut. On the contrary, a review of our case law dating back more than one century makes it crystal clear that the rule has been and continues to be a part of the common law of this state."
For example, one 1888 state Supreme Court case, Clinton v. Bacon, stated that it is "elementary law that a statute of limitations does not run against the state, the sovereign power."
The Lombardo decision reverses the 2009 trial court decision of Waterbury Superior Court Judge William T. Cremins, who ruled that the doctrine has not been adopted in Connecticut common law, or if it had, it has given way to statues of limitations and repose.
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This is great for plaintiffs who feel they have a case. In general, sometimes plaintiff cases can take a long time to build and some evidence is hard to find for lawsuits. This helps the plaintiffs get their cases together and actually balances the fight between the plaintiffs and the law library who are flush with cash.
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