STATE v. LOMBARDO BROTHERS MASON CONTRACTORS, INC., et al., SC 18462/18463

Judicial District of Waterbury

      Statutes of Limitations and Repose; Government Contracts; Whether Ancient Doctrine of Nullum Tempus Occurrit Regi, Which Precludes Statute of Limitations from Being Applied to Sovereign, Barred Defendants from Raising Statute of Limitations or Statute of Repose Defense to State’s Claims.  In March of 2008, the state brought this action seeking reimbursement for the cost of repairs to the University of Connecticut School of Law library.  The state alleged that the project was designed in 1992, construction began in 1994, and the project was completed in 1996.  The state further alleged that it began to experience problems with water intrusion into the library during the months and years after the project was completed.  Defendant Gilbane, Inc., was party to a contract with the state under which it furnished construction management services for the project.  Gilbane argued that the claims against it were barred by a contract provision that incorporated the statute of repose for defective professional design work.  The other defendants, who also provided services in connection with the project, argued that the state's claims against them were barred by either the statute of limitations for contract actions or the statutes of repose for tort, product liability or negligence actions.  In response, the state argued that, under the doctrine of nullum tempus occurrit regi, which means literally that "no time runs against the king," actions by the government are not barred by any statute of limitation or repose.  The trial court found that the state's claims were time barred.  As to Gilbane, the court noted that the state, through the chief deputy commissioner of the department of public works, had agreed to the provision in the contract incorporating the period of repose and that Gilbane was entitled to receive the benefits of the limitation.  It thus ruled that the doctrine of nullum tempus did not apply to the claim against Gilbane and that the state was bound by its contractual obligations in the same manner as any other contracting party.  As to the other defendants, the court also held that the state was not exempt from the applicable statutes of limitation or repose.  The court noted that a statute limiting rights and interests generally should not be construed as embracing the sovereign power or government unless the same is expressly stated or necessarily implied.  The court then found that the legislature, in its aim to alleviate the difficulties and implications of litigating stale claims, could not have intended to exempt the state from adherence to the statutes of limitation or repose at issue.  The court also noted that the state’s delay of more than twelve years after the completion of the project to bring its action was unduly burdensome and unexplained.  On appeal, the state claims that (1) none of the statutes at issue apply to the state either expressly or by necessary implication; (2) under Envirotest Systems Corporation v. Commissioner of Motor Vehicles, 293 Conn. 382 (2009), decided after the present case went to judgment, the chief deputy commissioner lacked the authority to waive the doctrine of nullum tempus by agreeing to incorporate the statute of repose into the Gilbane contract; and (3) the waiver of the state's sovereign immunity set forth in General Statutes § 4-61 for claims against it involving certain public works contracts does not show a legislative intent to limit the state's ability to bring claims to vindicate public rights.