Niel Franzese | Robinson & Cole | October 11, 2017
Our readers may recall that Public Act No. 15-28 was signed by the Governor back in 2015, subjecting the State of Connecticut and its political subdivisions to a statute of limitations for asserting actions and claims arising out of “construction-related work.” The law became effective as of October 1, 2017. “Construction-related work” is defined in the Act to include the design, construction, construction management, planning, construction administration, surveying, supervision, inspection or observation of construction of improvements to real property. Notably, it applies not only to the State, but also its subdivisions such as cities, towns, and other entities like school districts.
The limitations period set forth in the Act is 10 years from the date of substantial completion of a given improvement. The 10 year limitations period applies going forward to improvements to real property substantially completed on or after October 1, 2017. For improvements substantially completed before October 1, the limitations period runs to October 1, 2027. Prior to the Act, the State and its political subdivisions were generally not subject to any statutes of limitations for such claims due to the legal doctrine of nullum tempus occurrit regi, which provides that a state is not subject to statutes of limitations unless it specifically consents to be. Literally translated, it means that “no time runs against the king.”
For purposes of the Act, substantial completion is defined as the time that the real property at issue is first used by the public owner or first available for use after having been completed in accordance with the agreement covering the improvement, including any agreed changes to the agreement, whichever occurs first. However, any public highway, bridge improvement or improvement to a railroad right-of-way, ferry, port or airport infrastructure is considered substantially complete upon the issuance of a certificate of acceptance of the work relieving the contractor of maintenance responsibility.
The Act provides that the limitation does not bar actions or claims (1) on written warranties or guarantees which expressly provide for a longer effective period, including tolling agreements, (2) based on willful misconduct in connection with the performance or furnishing of construction-related work, (3) arising under any environmental remediation law or pursuant to any contract entered into by the State or any political subdivision of the State in carrying out its responsibilities under any environmental remediation law, or (4) pursuant to any contract for enclosure, removal or encapsulation of asbestos.
As we wrote previously, this new development is largely in response to the Connecticut Supreme Court decision, State of Connecticut v. Lombardo Brothers Mason Contractors, Inc., et al., 307 Conn. 106 (2012), in which the Court held that the State was not subject to any statute of limitations for initiating claims for defective construction with respect to the University of Connecticut Law Library in Hartford. The coming of the effective date for Public Act No. 15-28 will undoubtedly bring some stability and predictability to the often uncertain arena of defective construction and design claims by public owners.