I have written before about statutes of limitation and statutes of repose relating to construction disputes. I recently learned that these principles may not apply to a public owner’s claims against design professionals and contractors.
Statutes of limitation/repose? In its simplest terms, a statute of limitation is a time limit for bringing a lawsuit (i.e., you may have six years to file suit on a breach of contract dispute), whereas a statute of repose is the “drop-dead” date where the legal no longer exists. In other words, a statute of limitation may not run because the cause of action has not accrued (or started), but the statute of repose would bar any lawsuit not brought within the statutory time.
For example, in Tennessee, claims regarding improvements to real property must be brought within four years of substantial completion of the project, regardless of the date of discovery. There is an exception if the claim is discovered during the fourth year after completion. In this case, the claim must be brought within one year after discovery, or within five years after substantial completion of a project.
State immunity. If you have heard the phrase, the King can do no wrong, then you should understand this concept. In fact, the Connecticut Supreme Court recently held that the doctrine of nullum tempis occurrit regi (…no time runs against the King…) was alive and well in Connecticut common law and that the State’s right to bring suit against contractors and design professionals in connection with a State project completed 12 years earlier was unaffected by the passage of time, laches, Connecticut’s statutes of limitations and/or repose for contract and tort claims, and contractual provisions purporting to limit the State’s right to pursue its causes of action.
Time-barred claims. In State v. Lombardo Brothers Mason Contractors, Inc., 307 Conn. 412 (2012), the State brought an action against 28 defendants, including design professionals, contractors and others, to recover damages for defective design and construction of the UCONN law library more than 12 years after completion of the project. The State was seeking to recover the costs of work needed to correct water infiltration problems that the State claimed to be the result of deficient design and construction. In response, all of the defendants raised the defense that the State’s claims were time-barred by statutes of limitations or repose.
The trial court agreed with all of the defendants, finding that nullum tempis had never been
adopted as the common law in Connecticut and that, as a result, the State’s claims were barred
by the statutes of limitations or repose. The Connecticut Supreme Court reversed, holding that nullum tempis was part of the State’s common law and a privilege afforded to the federal and state governments as one of incidents of sovereignty, which furthers the public policy of preserving the rights, revenues, and property of the State from loss caused by the negligence of public officers.
Lesson learned. While you may think that the Lombardo decision is directed only to lawyers, it provides a good tip for everyone. One of the most important things you can do when you find out you have a potential construction dispute is to review your contracts and applicable limitations periods to determine the timeliness of your claim. Those claims may be time barred, or in some instances, you may have a legal excuse for the delay.