State v. Lombardo Brothers Mason Contractors, Inc.
The doctrine of nullum tempus occurrit regi, (no time runs against the king), a common law rule that exempts the state from the operation of statutes of limitation and repose and from the consequences of its laches, like the closely related doctrine of sovereign immunity, continues to apply in Connecticut. The State of Connecticut commenced this action in 2008 against Lombardo Brothers Mason Contractors, Inc. and 27 others, to recover, inter alia, damages for the allegedly defective design and construction of the University of Connecticut School of Law library. Soon after its completion in 1996 and, thereafter, on a continuing and progressive basis, water allegedly intruded into the building. Forensic engineers reported numerous defects with corrective work costing more than $15 million. Each defendant raised time based defenses by way of motions to strike or for summary judgment. The defendant, Gilbane, Inc., also raised a contractual limitation on suit defense claiming that the chief deputy commissioner of public works had waived nullum tempus in the state's contract with Gilbane by agreeing to be bound by the seven year repose period in C.G.S. §52-584a. The trial court concluded that Connecticut never adopted the rule of nullum tempus and the state's claims were barred by the periods of repose in C.G.S. §52-577, §52-577a, §52-584 and §52-584a and the limitation period in C.G.S. §52-576. The court also agreed with Gilbane's waiver argument. The state appealed from the judgment rendered for the defendants. The Supreme Court reversed the judgment and remanded the case finding that the doctrine of nullum tempus is well established in Connecticut's common law and the doctrine exempts the state from C.G.S. §52-576, §52-577, §52-577a, §52-584 and §52-584a. Although not often considered, a review of case law dating back more than a century made it crystal clear that the rule has been and continues to be a part of Connecticut's common law. The doctrine rests on similar principles as sovereign immunity, related to protecting the public fisc. The decision of whether to abrogate it is for the legislature. Further, to the extent that the limitation on suit provision in Gilbane's contract purported to waive the state's immunity from the repose period in C.G.S. §52-584a, the provision was invalid because the commissioner lacked authority to waive the state's immunity.