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They Still Talk Latin at Court

“Nullum tempus occurrit regi” a mouthful of ancient Latin, was resurrected recently by our Connecticut Supreme Court in a decision that has the public construction industry spinning in its togas. The lofty sounding Latin phrase, literally translated, means, “no time runs against the King.” In reality the ancient common law doctrine provides that the State is not bound by the statute of limitations when it wishes to bring a lawsuit.

Statutes of limitations are creatures of the legislature designed to insure a terminal date for the exposure to civil suit. In personal injury cases sounding in negligence or professional malpractice the time period is generally two years, and with some exceptions up to three years from the occurrence. In lawsuits alleging intentional wrongs that limit is generally three years. As with any legal doctrine there can be judicially created exceptions. In malpractice claims a continuing course of treatment can toll the running of the statute; that is, the continuing treatment keeps the two year clock from starting. The doctrine is complicated and fact derivative. It is also always challenged by defense lawyers.

In some instances, including malpractice cases, a continuous course of conduct by the accused wrongdoer can extend the statute of limitations as well As with the continuous treatment doctrine this one is also complex and fact derivative.

When my dad attended law school in the ’50’s most every major common law doctrine had its Latin catch phrase. My personal favorite was “falsus in uno, falsus in omnibus” translated false in one, false in all. The concept was that one who lied about one thing could not be believed on anything. When I attended law school in the early ’70’s we were still being taught these Latin concepts. Thank God for four years of high school Latin! Until I got to law school I figured they made us take this course just to torture us. My joy was been short lived as we moved briskly away from the Latin inspired titles after I graduated.

But here we are years later and the Supreme Court has reached deep into the jurisprudential play book to rescue a lawsuit brought by the State against Lombardo Brothers Mason Contractors and fifteen others for latent defects in construction of the law library at the UCONN School of Law. (Does anyone else see the irony in that one?) The work was performed in 1996 but suit was not commenced until 2008. A trial judge looked at the time lag and ruled that the statute of limitations barred recovery. The Supreme Court reversed, citing a decision it had rendered in 1888, that, “[it is] elementary that a statute of limitations does not run against the state, the sovereign power.”

The converse of this doctrine is that the state is also exempt from suit based on the concept of sovereign immunity. That doctrine stems from the English common law that the King could do no wrong. In reality the King in this state does wrong from time to time. The state legislature has the authority to grant the right to sue it with specific statutes, such as our highway statute which permits claims for injury from defective highways under extremely restrictive circumstances. The Legislature also created the Office of the Claims Commissioner who has the authority to grant permission to sue if the injured party files an appropriate petition within the time constraints the statute provides. For example, patients claiming malpractice at the hands of a state doctor or clinic can seek permission to sue but the suit is against the state, alone and not the individual practitioner.

The Lombardo decision has sent shock waves throughout the construction industry as well as their insurance companies. For us mere mortals we have to live within the applicable statutes of limitations. In the words of rocker, Tom Petty, “It’s good to be king!”

Rich Meehan