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The King Is Dead; Long Live the King: The Connecticut Supreme Court Resurrects Stale Claims by the State

Picture this scenario: You are a contractor, surety, or design professional. You completed a construction project for the State over a decade ago. The State accepted the project and raised no claims regarding your work. Surely you have no need to worry about the State’s bringing a lawsuit for a construction or design defect, because any claims would be time-barred, right? Ordinarily, the answer would be a resounding yes – the statutes of limitations and repose would have long since expired.

However, in Connecticut (and many other states), if the potential plaintiff is the State, the specter of a lawsuit may linger indefinitely. Recently, in State v. Lombardo Bros. Mason Contractors, Inc., the Connecticut Supreme Court upheld the common law doctrine of Nullum Tempus Occurrit Regi (“no time runs against the king”). Under Nullum Tempus, statutes of limitations and other time limitations do not apply to federal or state governments, unless their respective legislatures expressly state otherwise.

Lombardo’s history can be traced back to 1996, to the completion of a new library on the Hartford campus of the University of Connecticut School of Law. Soon after taking occupancy of the newly-constructed building, the State encountered water intrusion issues in the library, which progressively worsened. The State’s subsequent investigation uncovered several alleged defects in the library’s construction and design. The State retained design professionals and remediation contractors to design and perform corrective work costing more than $15 million.

In 2008 – over 12 years after the library was originally completed – the State commenced a lawsuit against the original contractors, sureties, and design professionals. The defendants naturally argued that the State’s claims were barred by the statutes of limitations and repose. The State’s original construction manager also asserted a contract-specific time-limitation defense based on its contract with the State. The trial court agreed, and dismissed the State’s claims as time-barred. However, on appeal, the Connecticut Supreme Court reversed the trial court and held that under the doctrine of Nullum Tempus, the State was immune from application of the statutes of limitations or repose.

Given the widespread application of Nullum Tempus throughout the country, the Connecticut Court’s affirmation of that doctrine was somewhat unsurprising. More troubling, however, was the Court’s concurrent ruling that the Department of Public Works lacked authority to waive the protection of Nullem Tempus by contract. It is now the law in Connecticut that an explicit time limitation in a contract signed by a state agency is invalid and unenforceable unless the agency has obtained express authority to agree to such a provision. This ruling raises obvious concerns for contractors who previously sought to limit liability through limitation provisions in their contracts with the State. It might even call into question the enforceability of other contractual provisions in such contracts that could be construed as time limitations, such as requirements related to the proper timing for notice of claims and backcharges.

In the wake of the Lombardo decision, contractors – and their sureties and insurers – that do business with the State are at risk for potential liability for stale claims by the State that may have accrued years after expiration of the ordinary statutes of limitations and repose. Contractors must know and account for these risks before doing business with the State. Key to this goal is proper and adequate insurance coverage: Contractors should make sure they are sufficiently insured so that potential liability is covered for periods well beyond the ordinary limitation timeframe. Likewise, contractors should require their subcontractors and indemnitors to have similarly-protective levels (and periods) of coverage. Finally, industry groups can lobby their state’s lawmakers, since Lombardo clarifies that the only way to expunge or limit the doctrine of Nullum Tempus is by legislative action. (In several states, including New York and Massachusetts, the state legislatures have expressly made their statutes of limitation and repose applicable to the government.)

In the meantime, the State of Connecticut may rejoice in Lombardo’s exaltation of State sovereignty. The King may not live forever, but the kingdom’s right to sue – for now – appears to be eternal.