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F A L L 2 0 1 3
Although the Lombardo Bros. deci-
sion does not have any immediate impact
on contractors entering into agreements
with states other than Connecticut, the
case is unsettling. Nullum tempus has
not been specifically abolished in the
overwhelming majority of states, either
by court or by legislature.
the Supreme Court held in United States
v. Nashville, Chattanooga & St. Louis
Railway Co
that "[i]t is settled beyond
doubt or controversy--upon the foun-
dation of the great principle of public
policy, applicable to all governments
alike, which forbids that the public in-
terests should be prejudiced by the neg-
ligence of the officers or agents to whose
care they are confided--that the United
States, asserting rights vested in them as
a sovereign government, are not bound
by any statute of limitations, unless Con-
gress has clearly manifested its intention
that they should be so bound."
Currently, it appears that only
four states have specifically abolished
the doctrine of nullum tempus. South
Carolina and West Virginia have
abolished it by statute.
Colorado and
New Jersey have abolished it judicially.
It remains to be seen whether other
states will use Lombardo Bros. to avoid
the limitations periods, even in the face
of express contract terms.
The obvious impact of Lombardo
. is that contractors and their sure-
ties and insurers are exposed to endless
potential liability when contracting with
the State of Connecticut and possibly
other states. Insurance and bonding
costs are likely to increase immediately.
Additionally, there are a host of other
concerns which should lead contractors
to reevaluate internal policies and pro-
cedures. How does a contractor protect
itself from an unending risk of liabil-
ity? How long should contractors save
documents from public works projects?
Should project managers be required to
keep detailed project diaries? Should
post-project debriefings occur with a
risk management team? Are there other
contractual mechanisms that can provide
limitations-type protection, for example,
a claim waiver similar to those signed by
contractors as part of the payment ap-
plication process?
Contractors, and the organizations
that advocate on their behalf, should
address this issue with state legislatures
and seek legislation abolishing nullum
in order to prevent results like
that in Lombardo Bros.
1 307 Conn. 412 (2012).
2 Id. at 429-430.
3 Id. at 421.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id at 438.
9 Id. at 458.
10 Id. at 427 "This view was then shared by virtually every
court in the country."
11 118 U.S. 120, 125 (1886).
12 State v. Lombardo Bros. Mason Contractors, Inc., 307
Conn. 412, 427 (2012). Ft nt. 20.
13 See State ex rel. Condon v. Columbia, 339 S.C. 8,
1617, 528 S.E.2d 408 (2000); State ex rel. Smith v.
Kermit Lumber & Pressure Treating Co.
, 200 W.Va. 221,
22728, 488 S.E.2d 901 (1997).
14 See Shootman v. Dept. of Trans., 926 P.2d 1200, 1207
(Colo.1996); New Jersey Ed. Facilities Auth. v. Gruzen
125 N.J. 66, 69, 592 A.2d 559 (1991).