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Court victory protects Connecticut's construction industry from unfair state lawsuits
Attorneys help undermine outmoded common-law doctrine
news release
March 18, 2009
HousingZone
The overthrow of the ancient doctrine of Nullum Tempus, or “no time runs against the king,” might sound like an academic abstraction that has little to do with the real-world work of architects, builders and suppliers. In reality, however, states often use this relic of English common law to sue such businesses for problems that pop up years after projects are complete. But thanks to a February court victory by LeClairRyan attorneys, in conjunction with other counsel, Connecticut’s construction industry may no longer live in fear of state governments using Nullum Tempus to sue them long after traditional statutes of limitations and repose have expired, said Brian J. Donnell, an attorney on the firm’s Construction Practice Team. “Many jurisdictions, including Connecticut, have long adhered to this ancient common-law doctrine, although there is a modern trend to reject it as outmoded,” he explained. “In this case, our attorneys succeeded at undermining Connecticut’s attempted use of Nullum Tempus by showing a clear lack of precedent on whether any such exemption from statutes of repose even applies to the state.”
And that means Connecticut should no longer be able to point to its supposed exemption from such statutes—including the 10-year statute of repose for product liability—that protect businesses from being sued years or even decades after they finish their work, said Donnell, who is based in LeClairRyan’s New Haven office.
The state filed a $20 million complaint last year against a number of parties, including a national windows manufacturer which retained LeClairRyan’s Construction Practice Team to defend it from the state’s product liability claim. The state, which filed the lawsuit in Connecticut Superior Court, alleged massive water infiltration problems and other design and construction defects related to construction of the University of Connecticut Law School Library. “Even though the library was finished in 1996, the state did not tell the project’s design professionals, contractors and suppliers about its claims until a full decade later,” noted LeClairRyan attorney Robert M. Barrack, who helped develop the strategy that undermined the state’s attempt to rely on Nullum Tempus.
Given the significant time lag between completion of the project and the state’s liability claims, the government’s legal team leaned on Nullum Tempus from the beginning, Barrack noted. “The state took the preemptive step of circulating a research memorandum explaining that sovereign immunity protected the state from the application of both statutes of limitation and repose,” he said. “But our motion for summary judgment focused on the fact that there was no directly binding Connecticut precedent on point, and that no prior decisions addressed whether exemption from a statute of repose applied to the state.”
In its decision, added Donnell, “after considering these and other arguments, the court found it would be improper and unfair to allow the state to keep contractors, design professionals and suppliers on the hook in perpetuity after they have completed work on a state construction project. Such circumstances would cause construction professionals and suppliers to either be driven out of business, or to pass on the exorbitant costs of perpetual liability insurance coverage and document storage requirements to the taxpayers and consumers.”
About LeClairRyan
Founded in 1988, LeClairRyan provides business counsel and client representation in corporate law and high-stakes litigation. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has more than 300 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.
© 2009, Reed Business Information, a division of Reed Elsevier Inc. All Rights Reserved.
