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T H E P R I M E R U S P A R A D I G M
Timothy D. Boldt is a commercial litigator and counselor, focusing
on the unique needs of contractors, sureties and construction
managers. He works with clients through all aspects of dispute
resolution, including compliance with complex contractual and
statutory claims procedures, informal and formal mediation,
arbitration and litigation in New York's state and federal court
systems. Although Mr. Boldt is a New York attorney, he handles
matters wherever clients have disputes.
Ernstrom & Dreste, LLP
180 Canal View Blvd., Suite 600
Rochester, New York 14623
585.473.3100 Phone
585.473.3113 Fax
tboldt@ed-llp.com
www.ernstromdreste.com
Timothy D. Boldt
If you are considering a contract with the
state of Connecticut (or just about any
other state), stop before you sign, and
make sure you understand the meaning
of "Nullum tempus occurrit regi," an
ancient common law rule which means
no time runs against the king. In State
v. Lombardo Bros. Mason Contractors,
Inc
.,
1
the highest Court in Connecticut
ruled that the State can take as long
as it pleases to commence a lawsuit
against any private party that provides
goods or services to the state, including
contractors. Although contractors are
bound by State laws that limit the time
for commencing a lawsuit against the
State of Connecticut, the State, on the
other hand, is no more bound by such
rules than a medieval English king would
have been. As explained by the Court,
the doctrine stems from the presumption
that the king was "daily employed
in the weighty and public affairs of
government," and as such, should not
"suffer by the negligence of his officers,
or by their contracts or combinations
with the adverse party.
"2
Although many
presumed the doctrine to be dead, make
no mistake, it is alive and well.
In
Lombardo Bros., the State of Con-
necticut entered into contracts for the
design and construction of a university
library. The project was completed in
1996.
3
Water intrusion problems were
quickly discovered and became pro-
gressively worse.
4
After four years of
monitoring and observing, the State hired
forensic engineers to conduct a multi-
year investigation.
5
They concluded that
the water intrusion was caused by design
and construction defects related to roof
parapets, structural steel, exterior wall
cavities, flashing, windows and the HVAC
system.
6
Rather than immediately seek
remedies under the applicable design and
construction contracts, the State retained
a new design professional and different
contractors to perform renovation work at
a cost of $15 million.
7
In 2008, 12 years
after completion of the initial project, the
State filed a lawsuit against 28 parties
involved in the design and construction of
the original project, including its design
professionals, construction manager and
contractors.
The trial court dismissed the action
based on the failure of the State to timely
commence suit. In doing so, the court
rejected the State's argument that the
doctrine of nullum tempus applied under
Connecticut common law and otherwise
held that it was unfair and incompatible
with a strong policy favoring deadlines
for lawsuits. On appeal, the Connecticut
Supreme Court overruled the trial court,
finding in favor of the State's need to
protect "the public fisc by allowing the
government to pursue wrongdoers in
vindication of public rights and property
without regard to the time limitations
applicable to other parties."
8
Not only did the Court recognize
the doctrine of nullum tempus, it ruled
that the State's sovereign right to an
unlimited time to commence a lawsuit
cannot be waived, even by the express
terms of a contract. Any such terms are
unenforceable.
9
Contractors Beware:
The King Can Always Sue You
North America