Update from the Courts: Connecticut Supreme Court Holds State Is Not Bound by Statutes of Limitation or Repose or Related Contractual Time Limits on Suit

Vol. 15 No. 1

By

 

In State of Connecticut v. Lombardo Bros. Mason Contractors, Inc., et al.,1 the Connecticut Supreme Court recently held that claims by the State cannot be barred by statutes of limitation or repose due to the ancient doctrine of nullum tempus occurrit regi, which literally means “no time runs against the King”. Moreover, the Court invalidated a provision in the State’s contract with its construction manager purporting to bind the State to a specific statute of repose. The Court found the provision to be unenforceable because the Commissioner of Public Works lacked authority to waive nullum tempus by contract. The Lombardo case leaves open the extent of a Connecticut state officers’ authority to bind the state to contractual time limits.

Factual and Procedural Background

The case involves alleged defects in the design and construction of a library at the University of Connecticut School of Law in Hartford. The project design began in 1992, construction commenced in 1994, and the work was completed in 1996. The State began occupying the library in January 1996 and immediately experienced problems with water intrusion. In 2000, the State first retained forensic engineers to investigate the full extent and likely causes of the problem. These investigations continued for several years thereafter. The State ultimately expended more than $15 million in corrective costs and later sued to recover those costs. The State commenced its lawsuit in 2008, more than twelve years after it first began occupying the library and years after each of the typical statutes of limitation and repose had expired.2

Lower Court Rules Nullum Tempus Does Not Apply

At the trial court, each of the defendants filed a motion seeking to dispose of the case based upon the State’s delay in commencing suit. The trial court granted each of these motions. The trial court found no instances in which the words nullum tempus appeared in reported Connecticut decisions, that the concept was incompatible with the policies underlying statutes of limitation and repose, and thus held that nullum tempus was not a part of Connecticut’s common law. The trial court also ruled that the State’s claims against the construction manager were time-barred under a repose provision in the contract.

Supreme Court Disagrees: Nullum Tempus Is Part of Common Law

On appeal, the State argued that the trial court lacked justification for declining to follow nullum tempus and that the Commissioner of Public Works lacked authority to enter into the repose provision of the contract. The Supreme Court agreed with the State on both points.

The Court described nullum tempus as closely related to sovereign immunity, noting that the two doctrines “may be viewed as opposite sides of the same coin.” While sovereign immunity is invoked by the sovereign as a shield against suit, the sovereign uses nullum tempus as a sword to strike down statutes of limitation or repose raised by a defendant. The sword of nullum tempus has “existed as an element of English law from a very early period.”

Since 1879, the Connecticut Supreme Court has “recognized a principle, traceable to English common law; that a statutory provision limiting rights is not to be construed as applying to the state unless the statutory language expressly or by necessary implication provides otherwise.” The Court found that, “[b]y its terms this general principle applied to statutes restricting the time within which an action may be brought.” Although the principle of nullum tempus had never been invoked as part of a holding of a Connecticut appellate court prior to Lombardo, the Court explained that “[p]resumably because the rule of nullum tempus is both well established and clear-cut there appears to have been little controversy over its application in this state, with the result that our courts have not often been called on to consider it.” The Court concluded: “a review of our caselaw dating back more than a century makes it crystal clear that the rule [of nullum tempus] has been and continues to be a part of the common law of this state.”

The Court rejected the defendants’ invitation to abolish nullum tempus for policy reasons. The Court reasoned that, because nullum tempus derives from sovereign immunity, it cannot be abrogated judicially. Rather, only the legislature possesses the authority to abolish nullum tempus. The Court noted that only South Carolina and West Virginia have legislatively abrogated nullum tempus.3 Although the Supreme Courts of New Jersey4 and Colorado5 judicially abolished nullum tempus, the Court distinguished those cases on the ground that sovereign immunity had been completely abrogated in those states before those decisions were handed down. While the Court indicated its skepticism that the abrogation of sovereign immunity, without more, requires the abrogation of nullum tempus, sovereign immunity has not been completely abrogated in Connecticut.

Connecticut General Statutes Section 4-61 waives the state’s sovereign immunity with respect to certain claims arising under construction contracts with the State. The defendants argued that Section 4-61 waived nullum tempus by necessary implication. The Court rejected this argument. According to the Court, by waiving the shield of sovereign immunity in Section 4-61 for a limited subset of claims, the State did not also waive the sword of nullum tempus.

Commissioner Lacks Authority to Waive State’s Immunity through Contractual Repose Period

The State’s contract with its construction manager contained a provision entitled “Period of Repose”. That provision read:

The services performed pursuant to this contract shall be considered professional work to which any statutory period of repose then otherwise applicable to professional design work under Connecticut law shall apply.

The trial court determined that this provision refers to Connecticut General Statutes Section 52-584a, which creates a 7-year period of repose for professional design work. The trial court held that the Period of Repose provision applied to bar the State’s claim against the construction manager. The Supreme Court reversed.

The Supreme Court ruled that “to the extent that the commissioner purported to contractually waive the state’s immunity from the repose period of § 52-584a, he lacked the authority to do so, and, consequently, the provision is a nullity.” While other states have enforced contractual repose provisions in government contracts,6 Lombardo appears to be the first decision to hold that a state executive officer lacked authority to bind the State to such a provision. Thus, other states may try to seize upon Lombardo to claim that their executive officers also lack the authority to enter into binding contractual repose provisions.

The decision leaves open the extent of state executive officers’ authority to bind the state to contractual time limitations. On the one hand, Lombardo could be read to deprive executive branch officers of authority to bind the State to provisions requiring notice of claim within a certain timeframe because such provisions impact the State’s sovereign immunity. On the other hand, the decision could be read to allow executive branch officers to agree by contract to “commence any lawsuit within seven (7) years of the substantial completion date” without referencing any particular statute of limitation or repose. The Court described nullum tempus as a rule in which statutes of limitation or repose should not be read to apply to the State unless the legislature makes such statutes applicable to the State expressly or by a necessary implication. Accordingly, the problem with the Period of Repose provision in Lombardo Bros. seems to be that, although the legislature did not make Section 52-584a apply to the State expressly or by a necessary implication, an executive branch official purported to override that decision by incorporating Section 52-584a into the contract. Thus, a contract provision which limits the timeframe to sue without referencing a particular statute of limitation or repose may not implicate nullum tempus at all. Or, so a state contractor could hope.

Decision Calls into Question Enforceability of Common Contract Provisions

Despite the Connecticut Supreme Court’s language about nullum tempus being crystal clear in Connecticut for more than a century, the Lombardo decision will require those who work on projects for the State of Connecticut to re-think the risk associated with such jobs. In particular, insurance coverage and bonding may be difficult, or at least more costly, to obtain for projects for the State of Connecticut. The decision calls into question the enforceability of common contract provisions with the State of Connecticut, such as provisions requiring notices of claim. Further, those working on projects for the State of Connecticut would be well-served to revamp their document retention policies and consider photographing and/or videotaping the work in progress to help defend against suits filed years after the relevant witnesses have departed or deceased.

Endnotes

1. 307 Conn. 106 (2012).

2. The State apparently did not use the extra time to focus its claims. Rather, the State sued twenty eight parties, including architects, engineers, the construction manager, trade contractors, material suppliers, insurance companies, and sureties.

3. Id. at 428 n.21 citing State ex. rel. Condon v. Columbia, 528 S.E.2d 408 (S.C. 2000); State ex. rel. Smith v. Kermit Lumber & Pressure Treating Co., 488 S.E.2d 901 (W. Va. 1997).

4. New Jersey Educational Facilities Authority v. Gruzen Partnership, 592 A.2d 559 (N.J. 1991).

5. Shootman v. Dep’t of Transportation, 926 P.2d 1200, 1207 (Colo. 1996).

6. E.g., United States v. Seaboard Airline Railway Co., 22 F.3d 113, 115 (4th Cir. 1927) (“The real question in the case, then, is not one of laches, or of the statute of limitations, but whether the government is bound by this provision of the contract of shipment into which it has entered with the railway company, and we see no reason why it is not bound by this, as it is by any other provision of a contract which it has made.”); Evergreen Park School District No. 124 v. Federal Ins. Co., 276 Ill. App. 3d 766, 769, 658 N.E.2d 1235 (1995) (“[a] contract is a contract and a government entity must abide by its contractual obligations the same as an individual”); State v. Evans, 47 Tenn. App. 1, 18, 334 S.W.2d 337 (1959) (“we are not concerned with a statute of limitations…but with a contract which limits the time for bringing suit.”).


Advertisement

  • Under Construction

  • Subscriptions

  • Contact Us