Statute of Limitations Doesn't Apply In UConn Law Library Lawsuit

THOMAS B. SCHEFFEY

The Connecticut Law Tribune

11-16-2012

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.

Cremins found no mention of the Latin phrase in Connecticut's recorded case law. It had not been the basis of any court holding, he said.

Furthermore, he noted that the legislature had passed several statutes of limitations or statutes of repose. [Limitations statutes require plaintiffs to sue within a certain time after an injury; repose statutes cut off a plaintiff's ability to sue after a set number of years, whether the plaintiff knows of an injury or not.]

Cremins quoted with approval the reasoning in a 1997 article in the Defense Counsel Journal, which noted the conflict between nullum tempus common law and the legislature's time limitations on suit, which, after a specified time, extinguish valid claims of innocent plaintiffs in the interest of promoting commerce and business planning.

Cremins also decided the Department of Public Works should be able to contractually promise construction manager Gilbane Construction the benefit of a seven-year statute of limitations, and have that promise upheld in court. If the state's contractual promises can't be relied upon, Cremins wrote, who would want to contract with the state?

At the time, the state's construction lawyers were pleased to see Cremins ruling. One of them was Louis Pepe, one of Connecticut's top construction lawyers and a partner at the Hartford office of McElroy, Deutsch, Mulvaney & Carpenter. "That was a gutsy decision," said Pepe. "When we saw that, we said `finally the judge gets it.' You read his decision, and it looks bulletproof."

When the Cremins decision was appealed to the state Supreme Court, more than 30 potential defendants weighed in to support the ruling, arguing for the applicability of the state's time-limitation statutes. They argued that the nullum tempus doctrine was not actually a part of Connecticut common law — case-made law — because no decision's holding had centered on nullum tempus itself. "This contention is meritless," wrote Palmer.

In an eye-opening lesson on the nature of common law, the court explained that its history of discussing and analyzing cases with nullum tempus in mind was proof enough that the doctrine was part of the DNA of Connecticut case law. "We previously have stated that the common law of this state includes universally accepted usages and customs as well as the adjudications of courts and the rules of practice," Palmer noted.

After the ruling, Pepe commented, "Our Supreme Court is right — because it's last."

Other construction lawyers predict this will be an issue for the legislature to explore in the upcoming session. Raymond Garcia of Garcia & Milas, who represents defendant Lombardo Brothers, said he was disappointed by the decision on many levels.

"The legislature is going to be compelled to look at this, no question," he said, pointing out there are too many segments of the industry interested. "I've been litigating sovereign immunity for 37 years ... so it was the first issue we ever get involved in, and it happens in every one of the cases involving the state," he said. "This is the first time it's come up this way."

Matthew Hallisey, the legislative liason for the Connecticut Construction Industries Association, said, "This case potentially has a huge impact on the industry." The next step is for the legislature to take a look, he said. "We're not saying there should be immunity for contractors for their projects. There should be liability, but we think there should be a public policy discussion about when that liability ends."

Connecticut Attorney General George Jepsen and his Solicitor General Gregory D'Auria won the case with the assistance of Timothy Fisher, of the Hartford office of McCarter & English.

Jepsen said the Lombardo case "tested an important principle, which is the terms and conditions in which the state can sue. It has implications for sovereign immunity, and when the state itself can be sued. We're very happy to have a unanimous and strong reassertion of these principles."

Jepsen said it is highly unusual for the state to wait 12 years to sue. However, "we're not private litigants acting in narrow self-interested terms. We act in the broad public interest. In this particular instance, until they ripped the building apart, years after the faulty construction, we didn't know how poorly executed the construction was."

The law library was planned to last for over a century, and was contracted with premium design and execution, D'Auria wrote in the state's brief. When the leaks began, forensic engineers were called in, and modest repairs led to the discovery of more and more design flaws, resulting in some $22 million in repairs to fix exterior walls that cost $4.5 million to build initially. The entire library's intitial construction cost $24 million.

D'Auria and Jepsen said that the state has taken very little advantage of its right to sue outside the statute of limitations. "It simply has not been a problem," said Jepsen.

For one thing, D'Auria said, it is "not great trial strategy to delay bringing suit for years and years. We still have to prove our case. Witnesses go away, documents get lost" and it hardly gives the state a great advantage.

In this case, D'Auria said, litigation was delayed, in part to find a more amicable remedy and maintain good relations with the contractors.

He added, "it's not our wont to wait to vindicate the public's right to collect tax dollars. In this case we had to repair the building."

Jepsen said that even if the Latin term is not mentioned in Connecticut cases, the University of Connnecticut School of Law Library contains plenty of books on nullum tempus. "The irony is not lost on us," Jepsen said. •