20th Century Construction Fiasco Turns On 13th Century Law

In a case with wide implications for contractors, the construction industry asked Connecticut’s Supreme Court to block the state from invoking a 13th-century English legal doctrine that the state claims allows it to wait decades or longer before suing for defective work on public works projects.
The dispute over whether the state should be required, as are individuals and businesses, to sue for construction deficiencies within what is generally agreed to be a six-year period grew from one of the more celebrated construction fiascoes in recent state history — multimillion-dollar leaks at the University of Connecticut’s showcase law library.

Former Attorney General Richard Blumenthal waited until 2008 to sue for the cost of repairs — 12 years after the $24 million, five-story building was complete and the school moved in its books. The state claims it can sue whenever it wants under the ancient English doctrine known as “nullum tempus occurrit regi,” which means, literally, that “no time runs against the king.” There is little on which the state and the 25 builders, architects, engineers and suppliers it eventually sued agree — including whether nullum tempus was even adopted by post-colonial Connecticut from the English common law.

Construction professionals told the court that never knowing when or if the state will find a flaw and sue creates financial and practical problems. Insurers are reluctant to write open-ended construction bonds. Architects may be compelled to pay insurance premiums on projects that stopped generating fees years earlier. Suppliers could be forced to retain product samples indefinitely for testing. Everyone, they said, is forced to inflate bids to cover costs that could be incurred in the distant future.

“If you take the state’s position, if someone decided to dig up the trolley tracks under Main Street in Hartford tomorrow and discovered that the gravel base was 3 inches thick instead of 6 inches thick, he could sue whoever it was who issued the bond for that project,” said Ray Garcia, a lawyer in New Haven involved in a similar case.

Connecticut Solicitor General Gregory D’Auria, who argued for the Attorney General’s Office, said the state’s law intentionally does not impose a statute of limitations on its right to sue, a protection for taxpayers that the legislature and courts have explicitly chosen not to restrict. “We believe that for sound public policy reasons the law has been well-established for many years that the statute of limitations does not apply to the state,” D’Auria said. “That being said, the state did not ‘wait’ to file the lawsuit. From the time the leaks were detected, the state sought to work in good faith with the various contractors involved, trying to investigate the source of the problem and to correct it. Our investigation revealed multiple construction problems and our state had to expend millions of its own money to fix those problems,” he. The lawsuit was filed only after all other options and remedies were exhausted.”

The law school library dispute is one of two cases in which nullum tempus has surfaced. The issue has been complicated because two Superior Court judges issued contradictory opinions after considering limitations on the state’s right to sue in two, separate state contracting disputes. Both involve leaky public buildings.

Judge William T. Cremins, in the library case, sided in February 2009 with the construction industry, holding that the state is obligated to sue within a prescribed period, just like everyone else. But in a case involving construction at the York Correctional Institution, a prison in Niantic, Judge Joseph M. Shortall held for the state in December 2008, although he suggested in a pointed footnote that he was doing so with reservation.

Both decisions were appealed. The library case reached the Supreme Court first and whatever the justices decide likely will apply in Niantic.

According to legal opinions and law review articles, nullum tempus dates to at least 1236 and was created to protect the English public from government functionaries who made bad decisions while the king was otherwise occupied. Parties to the library case disagree whether the doctrine became part of Connecticut’s justice system and whether it is superseded by statutes of limitations written into construction contracts and state statutes.

The state hired a architect to design the library in 1992. A private construction company completed the building and the school occupied it in 1996. By 2000, the state had begun spending what would amount to more than $10 million to identify and repair what it called a “water intrusion” problem. The library has been repaired and it was dedicated in 2010. AGC Smart Brief: 1/11/12

-EDMUND H. MAHONY, emahony@courant.com - The Hartford Courant

 

 

Kate Warner is an experienced construction lawyer based out of San Rafael. The Law & Mediation Office of Kate Warner has represented owners, general contractors, sub-contractors, developers and materials suppliers throughout Northern California. Since 1983 Kate has provided proactive legal advice and representation geared toward fostering lasting business relationships critical to survival and success in the industry. She is experienced in all aspects of California construction law, from contract bidding, negotiation and preparation to construction claims, coverage, quality of workmanship and materials issues.

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