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 English common law to sue such businesses for problems that pop up years after projects are complete.

According to LeClairRyan attorneys, there's good news for the construction industry thanks to a February court victory. 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." Donnell, who is based in LeClairRyan's New Haven office, added that the decision 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.

The state filed a $20 million complaint last year against a number of parties, including a national windows manufacturer that 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, Barrack noted, the government's legal team leaned on Nullum Tempus from the beginning, "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."

[Note: Founded in 1988, LeClairRyan provides business counsel and client representation in corporate law and high-stakes litigation. For more information, visit www.leclairryan.com.]

Published: April 1, 2009

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Peter L. Mosca is president and founder of BAK Communications, Inc. He has over 22 years of communications and media consulting experience, serving a variety of nonprofit organizations, including the CCIM Institute and the REALTOR Association on all three levels – national, state and local. He is the Spokesperson Trainer for the CCIM's Jay Levine Academy and trains hundreds of residential REALTORS nationwide to be effective industry spokespeople. He is consistently ranked as "excellent" by about 90% of those who attend his presentations. While his principal consulting focuses are public speaking and media relations development and content delivery and management, Peter is also the host of the Voice America Network's weekly radio program, "Income Property Investment Talk," a one-hour program that brings the powerhouses of commercial and residential real estate to property investors every Wednesday at 11 a.m. EST. Peter is married 17 years to his wife Barbara. They have two children: Ashley, 15 and Kelli, 12. Hence, the name BAK Communications, Inc.