Statutes of Limitations May Not Apply to Government Entities
Posted on Mar. 14, 2013

The construction industry has closely followed a number of recent court decisions in which statutes of limitations have been ignored for claims brought by state governments.  The Connecticut Supreme Court, in State of Connecticut v. Lombardo Brothers Mason Contractors, Inc., recognized and applied the old common law doctrine of nullum tempus occurit regi (no time runs against the king) as a well-established part of Connecticut common law.  The court ruled that Connecticut may sue defendants even when the statutes of limitations and statutes of repose normally governing civil actions have long passed.

The ruling came in a lawsuit brought by Connecticut against twenty-eight design professionals and contractors at the law library building of the University of Connecticut Law School.  The building was designed in 1992 and built from 1994 to 1996.  The building had water intrusion issues shortly after its completion in 1996.  In 2004, the State concluded that there were serious flaws in the building envelope.  Corrective work commenced in 2007 and the State brought its lawsuit in 2008, twelve years after substantial completion of the building.

The twenty-eight defendants moved to dismiss the case on grounds of statutes of limitations and statutes of repose.  While the trial court agreed with the defendants, the Connecticut Supreme Court reversed and held that the ancient doctrine of nullum tempus has always been the rule in Connecticut as part of the common law carried over from English legal traditions. The court explained that statutes of limitations are inapplicable to the State unless the State is explicitly identified in the statute as one of the parties to be barred from bringing a claim.

The Supreme Court’s ruling also surprisingly struck down a defense raised by one of the defendants based on a specifically negotiated limitations period in its contract with the State.  The contract provided that any claim made by the State against this defendant had to be brought within seven years.  The Supreme Court invalidated this contract provision and held that the doctrine of nullum tempus can only be waived by the Legislature.  Thus, the State’s contracting officer did not have the requisite authority to bind the State.

While this ruling is from the state courts of Connecticut, it has nationwide importance.  Only a few states (Utah is arguably among them) have overridden the doctrine of nullum tempus.  The Connecticut Supreme Court’s decision is only the latest to reaffirm that the ancient doctrine is still valid in many states.  Design professionals and contractors doing work with government entities must be extra diligent on public projects and consider the risks of litigation brought many years after the project is complete.  Insurance coverage continuation and document retention policies should be tailored to account for this seemingly unending liability exposure.

 

Construction Law
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About Adam

Adam
Attorney Adam T. Mow

Adam is a trusted resource for architects, engineers and other members of the construction industry in litigation, risk management, contract negotiations and mechanics’ liens. Adam is also a licensed architect and a past president of the Utah chapter of the American Institute of Architects. He has been elected by his peers to the Utah Legal Elite since 2009.

Awards and Recognition

AV Rating

Excellence in the Study of Architecture, American Institute of Architects Certificate of Merit, 1999

CALI Award for Excellence in Mediation and Advanced Negotiation, 2003

Community Mediator of the Year, Utah Dispute Resolution, 2007

Graduate of the Last Decade, Ball State University, 2008

Utah Business Magazine, Legal Elite, 2009-Present

Mountain States Rising Stars (Construction Litigation), 2009-Present