State v. Lombardo Bros. Mason Contractors, Inc.

• Decision Date: 13 November 2012
• Docket Number: SC 18462,SC 18463
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. LOMBARDO BROTHERS MASON CONTRACTORS, INC., ET AL.

STATE OF CONNECTICUT
v.
LOMBARDO BROTHERS
MASON CONTRACTORS, INC., ET AL.

SC 18462
SC 18463

Supreme Court of Connecticut

Argued January 10, 2012
Officially released November 13, 2012

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Palmer, Zarella, Harper, Vertefeuille and Lavine, Js.^*

Gregory T. D'Auria, solicitor general, with whom were Robert J. Deichert, assistant attorney general, Timothy Fisher and, on the brief, George Jepsen, attorney general, and Richard Blumenthal, former attorney general, for the appellant (state).

John P. Graceffa, with whom, on the brief, were Anita C. Di Gioia and Cristin E. Sheehan, for the appellee (named defendant).

Robert M. Barrack, with whom were Brian J. Donnell and, on the brief, Stephen P. Brown, Karen K. Clark, John Cvejanovich, Rebecca Hartley, Donna Jenner, Richard J. Kenny, James D. Kuthe, Russell Boon Rhea and John S. Rosania, for the appellees (defendant Apogee Wausau Group, Inc., et al.).

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David E. Rosengren with whom were Daniel J. Klau and Frank A. Sherer III, for the appellee (defendant Gilbane, Inc.).

Kenneth B. Walton, with whom were Patricia B. Gary and, on the brief, David J. Hatem, Leslie P. King, Marisa Lanza, Deborah Monteith Neubert and Mark E. Stopa, for the appellees (defendant S/L/A/M Collaborative, Inc., et al.).

Jack G. Steigelfest and Elizabeth S. Tanaka filed a brief for the appellee (defendant Arborio Corporation).

Michael T. Ryan filed a brief for the appellee (defendant F.B. Mattson Company, Inc.).

Jeffrey R. Babbin, Charles E. Vermette, Jr., Kathleen F. Adams, Dirk D. Bender, Neyah Kane Bennett, Michael A. Dowling, Ralph G. Eddy, J. Kevin Golger, Kenneth H. Naide, Richard A. Roberts, Ryan W. Scully, James F. Shields and Kevin P. Walsh filed a brief for the appellees (defendant Johnson Controls, Inc., et al.).

Matthew M. Horowitz and Michelle Himes-Wied-erschall filed a brief for the appellee (defendant Peerless Insurance Company).

Contantine G. Antipas filed a brief for the appellee (defendant Special Testing Laboratories, Inc.).

William M. Mack filed a brief for the American Institute of Architects, Connecticut Chapter, as amicus curiae.

Michael J. Donnelly, Christopher R. Drake and Derek T. Werner filed a brief for the Connecticut Construction Industries Association, Inc., et al., as amici curiae.

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Opinion

PALMER, J. This appeal requires us to consider the viability and scope of the doctrine of nullum tempus occurrit regi (no time runs against the king),¹ a common-law rule that exempts the state from the operation of statutes of limitation and statutes of repose² and from the consequences of its laches³ in a manner similar to the closely related doctrine of sovereign immunity.⁴ The plaintiff, the state of Connecticut, commenced this action against the named defendant, Lombardo Brothers Mason Contractors, Inc., and twenty-seven other defendants,⁵ to recover, inter alia, damages for the allegedly defective design and construction of the library at the University of Connecticut School of Law. Each of the defendants raised time based defenses to the state's claims by way of motions to strike or motions for summary judgment, with nearly all of them relying on applicable statutes of limitation and repose. The defendant Gilbane, Inc. (Gilbane), also raised a contractual limitation on suit defense, claiming that the chief deputy commissioner of public works (commissioner) had waived nullum tempus in the state's contract with Gil-bane⁶ by agreeing to be bound by the seven year period of repose set forth in General Statutes § 52-584a.⁷ The trial court concluded that the rule of nullum tempus never was adopted as the common law of this state, and, consequently, the state's claims against the defendants are barred by the periods of repose contained in General Statutes §§ 52-577,⁸ 52-577a,⁹ 52584¹⁰ and 52-584a, and the limitation period set forth in General Statutes § 52-576.¹¹ The trial court also agreed with Gilbane that its contract with the state expressly waives any claim that the state may have had under the rule of nullum tempus. Accordingly, the trial court granted the defendants' motions to strike and motions for summary judgment and rendered judgment for the defendants.¹²

The state challenges these rulings on appeal,¹³ claiming that the trial court had no justification for declining to follow long-standing precedent of this court recognizing the doctrine of nullum tempus. We agree with the state that the doctrine of nullum tempus is well established in this state's common law and that the doctrine exempts the state from the operation of §§ 52-576, 52577, 52-577a, 52-584 and 52-584a. We also agree that, to the extent that the limitation on suit provision in Gilbane's contract purports to waive the state's immunity from the operation of the repose period of § 52-584a, the provision is invalid because the commissioner lacked authority to waive the state's immunity. Accordingly, we reverse the judgment of the trial court and remand the case to that court for further proceedings on the merits of the state's claims.

The following facts and procedural history are relevant to our resolution of this appeal. The state acquired

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the Hartford campus of the University of Connecticut School of Law in the 1980s as part of a program to enhance the quality of education at the school as well as the standing of the university as a state institution. After acquiring the campus, the state began plans for the construction of a library to be built on land located at the center of the campus. The new library was intended to be a focal point of the campus and of such high quality that it would last for 100 years or more. The state retained Gilbane, a construction management firm, to work with the architect during the later stages of design to ensure construction input into the design process.

The project was designed beginning in 1992, and construction commenced in 1994. The project was completed in 1996. The state began occupying the library in January, 1996. Soon thereafter, the state experienced problems with water intrusion into the library. The defendant contractors were notified of the water problems and frequently visited the library to ascertain the nature and extent of the problems. Over the years, the water intrusion proved to be continuing and progressive. Beginning in or about 2000, and continuing for several years thereafter, the state retained forensic engineers to investigate the full extent and likely causes of the problem. The forensic investigation uncovered numerous defects in the building including, but not limited to, (1) improper design and installation of the wall anchoring system, the flashing, the windows, and the roof parapets, (2) improper design and construction of the exterior cavity wall, (3) inadequate waterproofing of the structural steel and the outside face of the building's structural wall, (4) inadequate relieving angles to support the exterior stone facade, and (5) inadequate design of the heating, ventilation and air conditioning system. These defects required the state to complete corrective work costing more than $15 million. The state commenced this action in March, 2008, seeking reimbursement for those costs.

All of the defendants raised time based defenses to the state's claims via motions to strike or motions for summary judgment, nearly all of which relied on applicable statutes of limitation and repose. In addition, Gilbane asserted that the state's claims against it were barred by the repose provision of Gilbane's contract with the state, which provided that "[t]he services performed pursuant to [the] contract shall be considered professional work to which any statutory period of repose then otherwise applicable to professional design work shall apply."¹⁴ In support of this defense, Gilbane argued that the commissioner, who negotiated the contract on behalf of the state, contractually waived nullum tempus by agreeing to be bound by the seven year limitation period applicable to professional design work. Gilbane also contended that the contract's limitation of remedies provision precluded the state from

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pursuing tort claims against...