In All Seasons Landscaping, Inc. v. Travelers Casualty & Surety Co., No. DBD-CV21-6039074-S, 2022 WL 1135703 (Conn. Super. Ct. April 4, 2022) the plaintiff, a subcontractor on a state project, commenced a lawsuit against the surety who issued a payment bond on the project two years after the subcontractor last performed any original contract work on the project. The defendant surety moved to dismiss the action based on the one-year statute of limitation in Connecticut General Statute § 49-42. The plaintiff countered that it complied with that deadline because it also performed warranty inspection work after the contract was completed and within the limitation period in section 49-42. The issue of whether warranty work or minor corrective work can extend the limitations period in section 49-42 had not previously been addressed by a Connecticut court.
Section 49-42(b) governs the limitation period on payment bond claims on public projects. It provides in relevant part that “no … suit may be commenced after the expiration of one year after the last date that materials were supplied or any work was performed by the claimant.” Section 49-42 provides no guidance on what “materials were supplied or any work was performed” by the claimant means, nor is there any direct appellate-level authority in Connecticut on this issue. What is clear under well-established law in Connecticut is that the time limit within which suit on a payment bond must be commenced under Section 49-42 is not only a statute of limitation but a jurisdictional requirement establishing a condition precedent to maintenance of the action and such limit is strictly enforced. If a plaintiff cannot prove its suit was initiated within this time constraint, the matter will be dismissed by the court as untimely.
Without any state appellate authority, and since section 49-42 was patterned on the federal Miller Act (40 U.S.C. §§ 270a – 270d), the court looked to federal precedents for guidance. The federal court decisions applying the Miller Act, which has similar language as section 49-42, have consistently held that warranty work or minor corrective work will not toll the statute of limitations in the Miller Act. The statute of limitation begins to run when the original contract work is completed. Remedial or corrective work or materials, or inspection of work already completed, falls outside the meaning of “labor” or “materials” as these terms are used in the Miller Act. Thus, correction or repair work, even if such work is requested by an owner, does not toll or affect the time constraint to file suit. The All Seasons Landscaping court adopted this “bright-line” rule for all payment bond suits under section 49-42 in Connecticut.
Interestingly, the deadline for filing suit on payment bond claims on public projects now appears to be more restrictive than the caselaw governing the time limit for filing a mechanic’s lien on a private project. Connecticut General Statutes § 49-34 requires a mechanic’s lien to be filed in the land records within ninety days after the “performing of services or furnishing of materials.” Well-established caselaw allows this ninety-day lien period, even after the original contract work has been completed, to start over from the date the owner requests any additional work, even trivial warranty or corrective work, to be performed.