Back in January, I wrote on the pending dispute about whether the State of Connecticut could file suit against contractors and designers twelve years (!!) after completion of the UConn library. The Connecticut statute of limitations is six years, but the government argued that a 13th century English legal concept, nullum tempus occurrit regi (“no time runs against the king”), meant that the public owner could sue any time, any number of years after the project was complete. The Connecticut Supreme Court has decided that the state is entitled to the benefit of the ancient doctrine, and the state commissioner who signed the contract containing an express time limit on claims had no right to waive the government’s immunity from statutes of limitation or repose.
The trial court had sided with the designers and contractors, but the Connecticut high court reversed. The high court notes in its decision that only four of the fifty states have abolished the nullum tempus doctrine, either by legislation (South Carolina and West Virginia) or by judicial determination (Colorado and New Jersey). If it is truly the case that contractors and designers in 46 states remain exposed indefinitely to lawsuits by the government, as the Connecticut court suggests, this is a major cause for concern.
No one excuses negligent or improper performance. But no contractor or designer expects to be sued ten years or more after a project has been finished. Nor are surety bonds, or insurance policies, issued with this unlimited exposure in mind. Companies performing public work must be conscious of the extended – indeed, unlimited in time – exposure they have to claims and lawsuits by the government.
For those wanting a bit more meat on the bones: The Connecticut court flexed its Latin muscles, quoting from an 1879 U.S. Supreme Court decision: “Vigilantibus sed non dormientibus jura subveniunt [literally, the law assists those who are vigilant, not those who sleep on their rights] is a rule for the subject, but nullem tempus . . . is the [k]ing’s plea.” It notes that this policy was stated in 1821 as the "great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers.” The court also held that the long-standing doctrine is part and parcel of the English common law system, and it is up the legislature, and not the courts, to revise the standard.