As claims from governments soar, be wary of sovereign immunity

In State of Connecticut v. Lombardo Brothers Mason Contractors, Inc., et al., the Connecticut Supreme Court 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.

This is a case where 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, among others, associated with the project.

The Connecticut Supreme Court decided that the state was allowed to sue the defendants after the 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 was 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 stated 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. 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 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 also voided the contract provision where the state had signed a contract agreeing 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.

So despite legislative protection for design professionals against claims that might occur long after design and construction are complete, the Connecticut Supreme Court’s decision 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. This creates limitless liability for construction-related professionals who provide services to the state.

Since 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, state organizations representing design professionals and their firms probably should be considering a significant lobbying effort to persuade the legislature to effect such a reasonable change.

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