Nullum Tempus and Beyond:
Practical and Public Policy:
Implications of the UConn Law School
Library Decision
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Presentation Roadmap
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Overview of key concepts
Overview of State v. Lombardo Bros. Masonry
Potential implications
Practical considerations
Legislative update
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Program Moderator
Moderator
John E. Bulman
Little, Medeiros, Kinder, Bulman & Whitney PC.
Attorney Bulman has twenty-five years experience in construction and commercial
trial matters. For several years, he has been recognized in numerous clients guides as
one of the region’s leading construction and litigation practitioners. In 2006, he was
elected to the American College of Construction Lawyers.
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Program Panelists
Panelist
Donald W. Doeg
Updike, Kelly & Spellacy
Attorney Doeg’s practice focuses on the representation of design professionals, owners,
contractors, subcontractors and suppliers, assisting clients in all aspects and stages of
construction projects from initial conception through final completion including negotiations of
all contract documents and changes made during the course of the project. As an engineer, Mr.
Doeg worked for a number of years in the construction industry, during which time he worked in
many capacities, including project manager, design engineer, construction manager, traffic
engineer and estimator. He worked in both the public (as an engineer in the U.S. Air Force) and
private sectors (as a project manager for a local design/build and construction management firm).
He is the current President of the Connecticut Society of Professional Engineers and is a member
of the National Society of Professional Engineers. In addition, he is a member of the Executive
Committee of the Construction Law Section of the Connecticut Bar Association. He also is a
member of the Mediation Committee and Chairman of the Business Practices Committee of the
American Council of Engineering Companies of Connecticut.
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Program Panelists
Panelist
Michael J. Donnelly
Murtha Cullina LLP
Attorney Donnelly represents both public and private parties in connection with drafting of contracts,
bid issues and dispute resolution in a wide variety of construction matters. Mike recently assisted a
successful bidder in defending a challenge to a public bid for the purchase of municipal property,
ultimately obtaining a written apology and a six-figure settlement on a vexations litigation claim arising
from the challenge. Mr. Donnelly has represented the owner with respect to contract negotiations for
the construction of a 14.6 MW gas powered generator project. His dispute resolution experience
includes jury and courtside trials, appeals, arbitration and mediation. Recently, working with his partner
Derek Werner, Mr. Donnelly successfully defended a $3,000,000+ mechanic’s lien case in Federal Court.
In addition to obtaining a decision for the defense on the plaintiff’s claims, he and Mr. Werner also
obtained a decision in their client’s favor for more than $1,000,000 on a counterclaim.
Mike was recently recognized as the “2011 Supplier/Service Provider of the Year” by the Associated
General Contractors (AGC) of Connecticut. He is the Chair of the Lex Mundi Constructions and
Infrastructure Group. Mike attended the College of the Holy Cross where he earned his B.A., and
graduated cum laude from the University of Connecticut School of Law.
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Program Panelists
Panelist
Timothy S. Fisher
McCarter & English
Attorney Fisher is a Chambers-ranked partner in McCarter & English’s Construction Practice
Group. With thirty years of work in the construction industry he handles all issues facing owners,
contractors and all others involved in bringing projects to successful conclusion. From negotiating
and drafting of contracts, through counseling during distressed projects, to claim resolution. Mr.
Fisher brings to his clients knowledge of the industry and the job-site realities that make or break
projects. Public sector projects are a major component of Mr. Fisher's practice, including
representation of contractors and owners of universities, corrections, marine and major
transportation facilities.
Attorney Fisher is also President of the Connecticut Bar Foundation.
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Program Panelists
Panelist
Steven B. Kaplan
Michelson, Kane, Royster & Barger P.C.
Attorney Kaplan practices in the area of Construction & Surety Law. Since 1995, he has co-edited the annual
Connecticut Bar Association Construction Case Law Summary and Legislative Review. Steve has authored:
"Construction Deficiencies in Connecticut: Claims & Insurance Issues," (Lorman Business Center, Inc., 2005);
"Damages for Delay & Other Construction Claims in Connecticut," (Lorman Business Center, Inc., 2005);
"Termination for Cause from the Surety's Perspective," (CBA Construction Law Seminar, May 1996); "Union
Project Labor Agreements," (CBA Annual Meeting, Construction Law Section, June 1996); "Getting Paid:
Payment Bond Claims," Construction Magazine (Fall, 1992); "Performance Bond Claims: The Surety's Defenses An Update," ABA Surety/TIPS Mid-winter Conference, 1991; "The CIA Responds to Its Black Sheep: Censorship
and Passport Revocation - The Case of Philip Agee," 13 Connecticut Law Review 317, 1981. He has co-authored:
"Payment for Construction Claims in Connecticut," (Lorman Business Center, Inc., 1990, 1998-2004); "Labor &
Other Regulatory Issues in Connecticut Construction" (Lorman Business Center, Inc., 2004); "Public
Construction Contracting in Connecticut," (Lorman Business Center, Inc., 1998-2001); "Construction Problems
in Connecticut," (PESI, 1991);"Connecticut Construction Claims and Collections," (PESI, 1988); "Connecticut
Mechanic's Liens and Payment Bonds," (PESI,1987). Steve currently teaches undergraduate and graduate
classes in Construction Law and Construction Documents at Central Connecticut State University for the
Construction Management Program. From 1987-2002, Steve taught Public Construction Contracts at the
University of Connecticut School of Law.
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Program Panelists
Panelist
Gregory D. Podolak
Saxe Doernberger & Vita, P.C.
Attorney Podolak concentrates his practice on insurance coverage litigation on behalf of
policyholders. He has handled numerous cases involving coverage for commercial general liability,
directors and officers, professional liability, first party property damage, workers compensation,
business risk, and additional insured claims. Greg has represented a wide variety of clients,
including major general contractors, and has successfully negotiated and tried disputes through
all phases of litigation in both state and federal court. He has also lectured and published articles
on a variety of insurance coverage topics.
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Program Panelists
Panelist
Donald J. Shubert
Connecticut Construction Industries Association
Donald J. Shubert is the president of the Connecticut Construction Industries Association. Among his duties at
CCIA, he is the Executive Director of the Connecticut Road Builders Association, the Executive Director of the
Connecticut Ready Mixed Concrete Association, Executive Secretary of the Connecticut Asphalt & Aggregate
Producers Association, and the liaison to the CCIA Equipment Maintenance Forum. He formerly practiced
construction law at Gordon Muir & Foley, and worked in construction for many years at the Balf Company.
On the national level, Don is a member of the Council of State Executives for the American Road and
Transportation Builders Association, which he chaired in 2009. He participates with the government affairs
committees for the National Sand Stone & Gravel Association, the National Ready Mixed Concrete Association,
and the National Asphalt Paving Association.
Don has received Gubernatorial and legislative appointments to the Governor’s Task Force to Reform State
Contracting, Connecticut Misclassification Task Force Advisory Board, Connecticut Recovery Working Group,
and Advisory Board of the Workers’ Compensation Commission. Don participated on Governor Malloy’s
transition team, and is currently the Chairman of the Connecticut Employment and Training Commission.
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Key Concepts
• Statute of Limitation: sets a maximum time
period after an event that legal proceedings
based on the event can be initiated
– Notes:
• Protection against having to defend claims where
evidence has been lost, witnesses are unavailable, or
memories have faded
• In Connecticut, the statute of limitation begins to run
when the plaintiff discovered or reasonably should
have discovered the defect
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Key Concepts
• Statute of Repose: a statute that bars a lawsuit
that is brought after a specified time, even if
this period ends before the plaintiff has
suffered a resulting injury
– Notes:
• See Conn. Gen. Stat. Sec. 52-584
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Key Concepts
• Nullum tempus occurrit regi: Literally, “no
time runs against the King”
– Notes:
• The principle that a statutes of limitations or repose do
not apply to a commonwealth or state
• Dates back to the 13th Century
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Key Facts of Lombardo Bros.
• The library at the University of Connecticut
School of Law was designed in 1992,
construction began in 1994, and substantial
completed was reached in 1996.
• Leaks were discovered early on
• Corrective work commenced in 2007
• The State commenced suit in 2008, twelve
years after substantial completion
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Trial Court Opinion
• The 28 defendants moved to dismiss on
multiple grounds based on the passage of
time
• The trial court granted summary judgment to
all the defendants and held one contractor
could enforce its contractual 7-year contract
limitation clause
• The State appealed
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CT Supreme Court Opinion
• November 20, 2012
• The Supreme Court concluded that “we find
no merit in the defendants’ contention that
the rule of nullum tempus never was adopted
in Connecticut. On the contrary, a review of
our case law dating back more than one
century makes it crystal clear that the rule has
been and continues to be a part of the
common law of this state.”
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CT Supreme Court Opinion
• The Supreme Court also concluded that there
were only two situations when time would run
against the State:
– (1) when the statute explicitly names the State as a
party against which the time runs (or the language of
the statute allows for no other possible
interpretation).
– (2) when the State’s claim is based on a statute (not
the common law) that itself includes a time limitation
as inherent in the rights established by the statute.
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CT Supreme Court Opinion
• The Supreme Court further concluded that the
nullum tempus doctrine can be waived only by
the Legislature itself, and so a contract
provision to that effect negotiated by a State
officer was not binding on the State.
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Potential Implications
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Design Professionals
– Liability for design firms for perpetuity
– Possible liability for firms who merge with, or
acquire, firms/individuals who did work with the
State for perpetuity
– Liability for design professionals who sign/seal
drawings until their probate estates have been
resolved
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Design Professionals
• E&O Insurance
– E&O policies are “claims made”
– Do claims made policies cover all projects that
were ever done?
– What about firms that change insurance carriers?
– What about firms that go out of business, merge
or are acquired?
– What about individuals who retire or change
firms?
– Cost impact on premiums
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Contractors
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We don’t know?
Existing exposure?
Incurring new exposure?
Insurance?
Bonding?
Ability to sell the company?
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We know!
We can’t mount a
proper defense
against claims
on work performed
many years ago.
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Risk?
Indentify?
Measure?
Handle?
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Making
imprudent
decisions?
Operating under
uncertainty?
Without properly pricing
the cost?
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We are concerned
About the wave of government activity that creates
liability for an extended period of time.
Risk Transfer Perspectives
Landowner/Bank
Project Owner
CM/GC
Architect
Prime Trade
Subcontractor
Prime Trade
Subcontractor
Subcontractor
Engineers
Subcontractor
Consultants
Sub-consultants
Risk Transfer Methods
Contractual Indemnity Claim
Downstream
Party
Downstream
Party’s
Insurance
Upstream
Party
Additional Insured Coverage
Construction Risk Transfer
 Upstream Parties (Owners and Contractors) goal: transfer
as much risk as possible
 Downstream Parties and Insurers goal: avoid as much risk
from upstream parties as possible
 Same objective: Minimize loss exposure, retain limits in
own policies, and maintain good insurance loss
history/rating
Lombardo
Timing is everything
 Indemnity implications
 Pushing the exposure downstream
 Temporal limitations?
 Insurance
 Tailoring “claims-made” coverage
 Fine tuning wrap-ups
 Beware the wrap exclusion gap
Surety
• Surety may have had no prior knowledge of
issues at the project
• Surety may have written contractor's bonds
based on its principal securing subcontractor
bonds and claims under these may be time
barred.
• Surety's indemnity rights may be severely
prejudiced
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The State
– Factors affecting the State’s ability to commence
suit?
– Possible effects of the decision on quality of work
and pricing of bids?
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Practical Considerations
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Design Professionals
• Document Retention
– How long to retain documents/records?
• Impact on retention of electronic records (e.g. e-mails)
– Implications regarding electronic documents
• Changing technology
• Technology kept by others (e.g. BIM modeling)
– Establishing office policies
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Liability Insurance Issues
– Insurance implications/strategies
• Additional insured – avoiding temporal caps on AI
requirements
• Corporate insurance
– GL – “occurrence” coverage
– Professional – “claims-made” implications
• Wrap – extending the tail
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Surety - Considerations
• Calculate damages based on costs as of the
time of project completion
• Procedural Due Process Claim-- Fourteenth
Amendment and Article 1, § 10 of the
Connecticut Constitution
• Mitigation defenses, including impairment of
indemnity rights and impairment of rights
under subcontract bonds
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Notes
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