Back in September of 2013, I wrote about the Connecticut Supreme Court’s holding in State v Lombardo Brothers Mason Contractors, Inc. et. al., in which that Court “reaffirmed” the common law doctrine of Nullum Tempus. (My previous article can be found here: http://www.wbgllp.com/legal-alerts.php?id=8). The doctrine of Nullum Tempus is a legal doctrine whereby ordinary statutes of limitation do not apply to the government unless they are specifically made applicable. Before Lombardo Brothers, it was presumed that the statutory language in Connecticut’s existing statutes of limitation was broad enough to evidence the State's intent to be bound by those time limitations. As was discussed in that previous article, by holding that nothing had changed—and that the generally applicable statutes of limitation had never actually been made applicable to the State—the Connecticut Supreme Court completely changed the way contractors, design and insurance professionals had to approach public works projects. The far reaching effects related to issues of: records retention; the sale, purchase and succession of design and construction firms; trailing liability; probate for pursuing claims through a deceased designer’s estate; and infinite tails on insurance policies and surety bonds (and the high cost of such tails), among others.
As a result of a strong lobbying effort by Connecticut’s construction, design and insurance/surety industries, the Connecticut Legislature adopted, and Governor Molloy signed “An Act Concerning the Applicability of the Statute of Limitations to Construction and Design Actions Brought by the State or a Political Subdivision of the State”. This act, which becomes effective on October 1, 2017, applies to all “construction-related work” for the State or any political subdivision1 and defines such work as “the design, construction, construction management, planning, construction administration, surveying, supervision, inspection or observation of construction of improvements to real property”. For any project which was substantially complete2 prior to the effective date of October 1, 2017, the State is barred from bringing any claim (on any theory) after October 1, 2027. For any project which was completed after the effective date, the state may not bring the claim more than 10 years after substantial completion. For indemnity and contribution claims relating to public construction projects, the new statute of limitation is the later of 10 years after substantial completion, or three years after the underlying claim is finally determined (whether by judgment or settlement). There are four narrow exceptions relating to: 1) written guarantees, or claims tolled pursuant to a written agreement for longer than ten years; 2) situations where there has been willful misconduct relating to the performance of the work; 3) environmental remediation claims; and 4) asbestos claims.
While the Legislature went beyond the time periods set forth in the general statutes of limitation (two years for personal injury and property damage; three years for general torts, six years for contracts and seven years for claims against design professionals), and while it included exceptions not found in those statutes of limitations, this law will restore much of the certainty and finality in the public works construction arena that the Lombardo Brothers decision took away.
1 Political subdivisions of the state include, towns, cities and special purpose districts (such as school districts), as well as other governmental entities.
2 “Substantial completion”, like “construction-related work” is defined liberally and is deemed to occur when the property is “first used by the state or any political subdivision of the state, or a tenant thereof; or is available for use after having been completed in accordance with the contract or agreement, whichever occurs first”. With regard to public highways, bridge improvements, or other transportation infrastructure, the project is substantially complete when the state issues the certificate of acceptance.