State Can Sue For Defects At UConn Law Library, High Court Says

The Hartford Courant

The state Supreme Court on Friday reversed a Superior Court judge's decision that prevented the state from suing the contractors and designers who built the leaky University of Connecticut law school library.

The high court ordered the case back to a trial court, where the state can pursue its claims against 28 defendants.

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The $23 million Gothic Revival library, completed in 1996, had an unstable, leaking, granite façade, university officials said. The state sued the builders and designers in 2008. The state spent more than $15 million to repair what it termed "water intrusion."

The state waited 12 years to sue over the defects, and Superior Court Judge William T. Cremins in 2009 ruled that the state was bound by a six-year statute of limitations and threw the case out.

The state claimed it could sue whenever it wanted because it is immune to the statute of limitations and instead covered by the 13th Century English legal doctrine known as "nullum tempus occurrit regi," which means, literally, that "no time runs against the king." The high court agreed.

The decision could have wide implications for contractors who perform work for the state as it essentially eliminates any time limit on liability. --

"We agree with the state that the doctrine of nullum tempus is well established in the state's common law and that the doctrine exempts the state from" the statute of limitations, Justice Richard N. Palmer wrote in the court's unanimous decision. The state argued that the doctrine protects taxpayers.

The Supreme Court's decision could have wide implications for contractors who perform work for the state as it essentially eliminates any time limit on liability.

"The practical aspect of this one is going to be very challenging for the industry," said Don Shubert, an attorney who is also president of the Connecticut Construction Industries Association, a trade group. "At first look, it's going to place liability on public contractors that they may not be able to insure. I don't know you insure open-ended liability."

The court also tossed a provision in a contract between the state and Gilbane Building Co. of Rhode Island that limited the period of time during which the state could sue, or period of repose. Although an official in the state Department of Public Works signed a contract with Gilbane, the Supreme Court ruled that the official lacked the authority to waive the state's immunity from such clauses.

"That's problematic when you can enter into a fully negotiated contact with the state but the state doesn't have to live up to its side of the bargain," said Michael J. Donnelly, a Hartford lawyer whose practice includes construction matters and who filed a brief on behalf of the industry association. "I don't know what people will have to take into account to protect themselves going forward if they can't trust the deal with the state."

Donnelly said he hopes the legislature will address the issue "and bring Connecticut into the 21st century."

State Attorney General George Jepsen said the state will press its claims against those involved with designing and building the library.

"We are gratified by the court's decision, which agreed with our arguments," Jepsen said. "The case will return to the trial court where we will move forward with our claims, seeking compensation for the taxpayers of the state who had to cover the cost for the repairs to the UConn Law Library."

The state argued that it did not wait to file the lawsuit, but investigated the source of the leaks, tried to work in good faith with the contractors and filed suit only after it had exhausted all of its options.

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