Originally posted Friday, 18 January 2013

Written by Jon Sier

Most people would blanch reading a Latin phrase in a legal article, especially pertaining to construction. However, the phrase nullum tempus occurrit regi [no time runs against the king] has been recently invoked to allow the State of Connecticut to bring a claim for design and construction defects years after a lawsuit by a private entity would have been timebarred. State v. Lombardo Bros. Mason Contractors Inc., et al., 307 Conn. 106 (2012). This common law concept survives in many states and allows governmental entities to bring a claim at any time, regardless of any statute of limitation or repose that would otherwise apply.

The chronology is particularly critical in illustrating the principle at the core of this case. The University of Connecticut Law Library [the irony was not lost on the participants or the court] was designed in 1992, with construction commencing in 1994 and completing in 1996 when the Owner took possession and began occupying the building. The Owner began experiencing problems soon after, and various efforts to rectify the problems were ineffective. Ultimately, it was determined that the repairs would cost over $15 million, and the state brought the action in 2008. The applicable statute of limitations is seven years, and the contract specifically identified that period as controlling the parties to the contract. The contractor sought dismissal of the action due to the expiration of the applicable periods of limitations and repose.

While the trial court agreed and dismissed the action, the Connecticut Supreme Court reversed based on the application of nullum tempus. In fact, the court observed that the principle exists in some form in every state, except in Colorado, New Jersey, West Virginia, and South Carolina, where the principle has been abolished legislatively or by judicial decision. Substantive rights of a governmental entity may not necessarily be waived by operation of a contract; that conclusion would depend on whether the person executing the contract had the level of legislative authority essential to waive a substantive right of the state. For governmental Owners, the long-established principle of nullum tempus may be worth considering in the event that the cause of a long-festering problem is determined to be design or construction related. Again, the specific answer will require a review of the law applicable to a specific state.

John Sier, with the firm of Kitch Drutchas Wagner Valitutti & Sherborook in Detroit, Michigan, is Associate Counsel to COAA.