- Connecticut Supreme Court Rules Statutes of Limitations and Repose Do Not Generally Apply to the State
- November 14, 2012 | Authors: Stephen P. Brown; James D. Kuthe; Francis P. Manchisi; David A. Rose
- Law Firms: Wilson Elser Moskowitz Edelman & Dicker LLP - Stamford Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - New York Office ; Wilson Elser Moskowitz Edelman & Dicker LLP - Stamford Office
In a far-reaching decision that will impact construction professionals, product manufacturers, suppliers and distributors, the Connecticut Supreme Court, in State of Connecticut v. Lombardo Brothers Mason Contractors, Inc., et al., explicitly recognized the antiquated common law doctrine of nullum tempus occurit regi (no time runs against the king) as a well-established part of Connecticut common law. In applying this doctrine, the court ruled that the state is allowed to sue defendants even when the applicable statutes of limitations and statutes of repose in civil actions have long passed.
The State of Connecticut brought suit against 28 defendants for alleged defects in the construction of the University of Connecticut Law School Library. The building was designed in 1992 and construction commenced in 1994. The state alleged that the library was not constructed properly and suffered from myriad problems, including water intrusion. This water intrusion was noticed as early as 1996 and there was no dispute by the state that shortly after the completion of the project, in 1996, they had notice of the problems. Beginning in 2000, the state retained forensic experts to investigate the ongoing problems with the library. In 2008, approximately 12 years after the state had notice of problems, the state brought suit against the construction professionals and product suppliers associated with the project, among others.
The Connecticut Supreme Court was faced with two issues. The first involved deciding whether the state was allowed to sue the defendants after various statutes of limitations and statutes of repose had expired. In considering this issue, the court was specifically faced with the question of whether the doctrine of nullum tempus occurit regi was a recognized common law rule in Connecticut. The second issue addressed whether a contract provision between the state and a defendant that limited the state’s ability to sue (and arguably waived the state’s immunity from the operation of the repose period) was enforceable.
The court, in considering the genesis and the ultimate applicability of the doctrine of nullum tempus, reviewed Connecticut case law and found that the doctrine was well established in Connecticut jurisprudence. The court opined that, as a general rule, statutes of limitations and statutes of repose do not apply to the state unless such an application is expressly stated in the statute or unless it can be proven that the statute’s legislative history necessitates such an application by force of necessary implication.
In applying these two tenets, the court found that none of the statutes of limitations or repose at issue (C.G.S. sections 52-576, 52-577, 52-577a, 52-584, and 52-584a) either by their express terms or by necessary implication were meant to apply to actions brought by the state. Further, the court declined to abolish the nullum tempus rule judicially, stating that the doctrine is supported by a strong policy to prevent the imposition of enormous fiscal burdens on the states. The court went on to declare that the doctrine of nullum tempus protects the public fisc (treasury) by allowing the government to pursue wrongdoers in vindication of public rights and property without regard to the time limitations applicable to other parties.
The court next addressed the issue of whether the state waived its nullum tempus protection when it signed a contract with one of the defendants and agreed to be bound by the seven-year statue of repose provision applicable to architects, professional engineers and land surveyors (C.G.S. section 52-584a). The court referenced a long line of common law precedent that recognized that government officials cannot waive sovereign immunity, contractually or otherwise, in the absence of explicit legislation authorizing them to do so. In the same vein, the court opined that the statute that allowed the commissioner to enter into the contract with the defendant did not expressly or by force of necessary implication authorize the commissioner to waive nullum tempus. As there was no explicit legislation authorizing the commissioner to waive the state’s nullum tempus protection, the provision in the contract was unenforceable.
The Connecticut Supreme Court’s decision is a defining moment for construction professionals and product suppliers who operate in Connecticut. In effect, the adoption of nullum tempus allows the state to sue at any time, irrespective of whether a time limitation is contained within a contract that is signed by an authorized commissioner of the state. The potential for limitless liability for construction professionals, or those whose products are used in a construction project in Connecticut, is a worrisome development with far-reaching implications.
Notably, the court did indicate that the decision to abolish nullum tempus, or insert a provision making the statutes of limitations and repose at issue applicable to the state, is one to be decided by the legislature. Thus, there may be an opportunity for a significant lobbying effort to persuade the legislature to effect such a common-sense change. Otherwise, a host of entities that conduct business in the State of Connecticut (either directly or indirectly) may face endless exposure to suits brought on behalf of the state.