Bridgwood v. A.J. Wood Construction, Inc. , 480 Mass. 349 ( 2018 )

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SJC-12352
TERRY BRIDGWOOD vs. A.J. WOOD CONSTRUCTION, INC.,1 & others.2
Essex. January 8, 2018. - August 29, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Home Improvement Contractors. Consumer Protection Act, Unfair
or deceptive act. Repose, Statute of. Practice, Civil,
Consumer protection case, Claim barred by statute of
repose.
Civil action commenced in the Superior Court Department on
January 22, 2016.
A motion to dismiss was heard by James F. Lang, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Roy D. Toulan, Jr., for the plaintiff.
Lili K. Geller for A.J. Wood Construction, Inc., & another.
Mark C. Darling for Anthony Caggiano.
The following submitted briefs for amici curiae:
Martin J. Rooney for Massachusetts Defense Lawyers
Association.
1 Also known as A.J. Wood Construction.
2 Richard Smith and Anthony Caggiano.
2
Ryan D. Sullivan for Eastern Massachusetts Chapter of the
National Association of the Remodeling Industry.
John Pagliaro & Martin J. Newhouse for New England Legal
Foundation, amicus curiae.
CYPHER, J. At issue in this case is whether a claim
alleging that a building contractor committed an unfair or
deceptive act under G. L. c. 93A, §§ 2 and 9, by violating G. L.
c. 142A, § 17 (10), is subject to the six-year statute of repose
set forth in G. L. c. 260, § 2B. The plaintiff, Terry
Bridgwood, commenced this action in 2016, alleging that
renovations performed in 2000 and 2001 by the defendants, A.J.
Wood Construction, Inc. (A.J. Wood); its principal, Richard
Smith; and its subcontractor, Anthony Caggiano, caused a fire in
her home in 2012. On the defendants' motions, a judge in the
Superior Court dismissed the complaint as untimely under the
statute of repose. Bridgwood appeals, and we transferred the
case to this court on our own motion.3 Because we agree that
this case is within the ambit of the statute of repose, we
affirm.4
3 Terry Bridgwood filed a notice of appeal as to Caggiano
and a separate notice of appeal as to A.J. Wood Construction,
Inc., and Smith. We consolidated the two appeals when we
transferred them.
4 We acknowledge amicus briefs submitted by Massachusetts
Defense Lawyers Association, Eastern Massachusetts Chapter of
the National Association of the Remodeling Industry, and New
England Legal Foundation.
3
Facts. The defendants filed what was styled a motion to
dismiss pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754
(1974) and Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1975).
Under either rule, we accept as true all facts pleaded by
Bridgwood in her amended complaint. See Jarosz v. Palmer, 436
Mass. 526, 530 (2002); Warner-Lambert Co. v. Execuquest Corp.,
427 Mass. 46, 47 (1998). See Jarosz, supra at 529, quoting
J.W. Smith & H.B. Zobel, Rules Practice § 12.16 (1974) (motion
pursuant to rule 12 [c] is "actually a motion to dismiss . . .
[that] argues that the complaint fails to state a claim upon
which relief can be granted").
On October 30, 2000, the city of Newburyport, through its
housing rehabilitation program, awarded A.J. Wood and Smith a
contract for the rehabilitation of Bridgwood's home in
Newburyport. Smith and A.J. Wood retained Caggiano as the
electrical subcontractor for the rehabilitation of the premises.
Newburyport's contractor agreement for the housing program
provided that Smith and A.J. Wood were to be responsible for the
performance of the specified rehabilitation work in accordance
with certain standards, including that all rehabilitation,
alterations, repairs, or extensions be in compliance with all
applicable Federal, State, and local codes; before commencing
work, contractors or subcontractors obtain all necessary
permits; the contractor and subcontractor must personally
4
inspect the premises and give full attention to any and all
areas of their involvement; the contractor certify compliance
with all Federal, State, and local regulations including G. L.
c. 142A, the home improvement contractor law; the contractor
take all responsibility for the work done under the contract,
for the protection of the work, and for preventing injuries to
persons and damage to property and utilities on or about the
work; and all work performed meet or exceed all building and
fire codes of Newburyport. Bridgwood relied on these specific
covenants promised by the defendants in authorizing the work to
be performed in her premises.
None of the defendants obtained a permit to replace or
repair certain ceiling light fixtures in the premises. None of
the defendants gave proper notice to the Newburyport inspector,
or arranged or provided for an inspection by the inspector, of
the electrical wires used by Caggiano to replace or repair the
ceiling light fixtures before the wires were concealed. The
electrical rehabilitation work with respect to the ceiling light
fixtures was not performed in compliance with any applicable
Federal, State, or local codes with respect to such work, as
required by the contractor agreement. Bridgwood was not aware
of this compliance failure until the concealed wiring work done
by Caggiano caused a substantial fire in and damage to her home
on January 31, 2012, causing in excess of $40,000 in damage and
5
significant emotional and physical distress to Bridgwood. The
amended complaint does not state when the work was performed,
but Bridgwood concedes that it was completed in January, 2001.
This action was commenced in January, 2016, about fifteen years
later.
Discussion. Bridgwood alleges that the defendants violated
G. L. c. 93A by violating G. L. c. 142A, § 17 (10). General
Laws c. 142A, § 17 (10), prohibits contractors and
subcontractors from "violat[ing] the building laws of the
commonwealth or of any political subdivision thereof." Section
17 also provides that "[v]iolations of any of the provisions of
this chapter shall constitute an unfair or deceptive act under
the provision of [G. L. c. 93A]." Bridgwood claims that the
defendants failed to perform the electrical work in compliance
with those standards and, therefore, committed unfair or
deceptive acts. The defendants argue that the claim is barred
by the statute of repose set forth in G. L. c. 260, § 2B.
According to Bridgwood, however, the statute of repose does not
apply to consumer protection claims under G. L. c. 93A.
Statutes of repose and statutes of limitations are
different kinds of limitations on actions. A statute of
limitations specifies the time limit for commencing an action
after the cause of action has accrued, but a statute of repose
is an absolute limitation which prevents a cause of action from
6
accruing after a certain period which begins to run upon
occurrence of a specified event. See Rudenauer v. Zafiropoulos,
445 Mass. 353, 358 (2005). A statute of repose eliminates a
cause of action at a specified time, regardless of whether an
injury has occurred or a cause of action has accrued as of that
date. See id. Statutes of limitations have been described as a
"procedural defense" to a legal claim, whereas statutes of
repose have been described as providing a "substantive right to
be free from liability after a given period of time has elapsed
from a defined event." Bain, Determining the Preemptive Effect
of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev.
119, 125 (2014). The statutes are independent of one another
and they do not affect each other directly as they are triggered
by entirely distinct events. Moore v. Liberty Nat'l Life Ins.
Co., 267 F.3d 1209, 1218 (11th Cir. 2001), quoting First United
Methodist Church of Hyattsville v. United States Gypsum Co., 882
F.2d 862, 865-866 (4th Cir. 1989), cert. denied, 493 U.S. 1070
(1990). See Rosenberg v. North Bergen, 61 N.J. 190, 199 (1972)
("The function of [a] statute [of repose] is thus rather to
define substantive rights than to alter or modify a remedy");
Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995) ("[The]
distinction has prompted courts to hold that statutes of repose
are substantive and extinguish both the right and the remedy,
7
while statutes of limitation are merely procedural,
extinguishing only the remedy"). See Bain, supra.
General Laws c. 260, § 5A, which establishes the
limitations period for G. L. c. 93A claims, provides that
"[a]ctions arising on account of violations of any law intended
for the protection of consumers, including but not limited to
. . . [G. L. c. 93A] . . . whether for damages, penalties or
other relief and brought by any person, including the attorney
general, shall be commenced only within four years next after
the cause of action accrues." Section 5A is solely a statute of
limitation; it contains no statute of repose.
The statute of repose contained in G. L. c. 260, § 2B,
provides in relevant part:
"Actions of tort for damages arising out of any deficiency
or neglect in the design, planning, construction or general
administration of an improvement to real property . . .
shall be commenced only within three years next after the
cause of action accrues; provided, however, that in no
event shall such actions be commenced more than six years
after the earlier of the dates of: (1) the opening of the
improvement to use; or (2) substantial completion of the
improvement and the taking of possession for occupancy by
the owner" (emphasis added).
"Like all statutes of repose, '[t]he effect . . . is to place an
absolute time limit on the liability of those within [its]
protection and to abolish a plaintiff's cause of action
thereafter, even if the plaintiff's injury does not occur, or is
not discovered, until after the statute's time limit has
8
expired.'" Nett v. Bellucci, 437 Mass. 630, 635 (2002), quoting
McGuinness v. Cotter, 412 Mass. 617, 622 (1992).
As we discussed in Klein v. Catalano, 386 Mass. 701, 708
(1982), the repose statute at issue there "was enacted in
response to case law abolishing the rule that once an architect
or builder had completed his work and it had been accepted by
the owner, absent privity with the owner, there was no liability
as a matter of law." The abolition of that rule exposed "those
involved in construction . . . to possible liability throughout
their professional lives and into retirement." Id. at 708-709.
The Legislature therefore "placed an absolute outer limit on the
duration of this liability."5 Id. at 709. The statute thus
protects contractors from claims arising long after the
completion of their work. We recognized in Klein that limiting
the duration of liability is a legitimate public purpose, and we
5 Statutes of repose were a legislative response to the
expanded liability faced by the building industry. One such
change involved the concept of privity. Daugherty & Flora,
Survey of Recent Developments in Real Property Law, 46 Ind. L.
Rev. 1199, 1231-1232 (2013). The liability of building
professionals had been strictly limited based on English common-
law rules of privity, which were based on contract and
terminated upon completion of the improvements. Id. at 1231.
In the early Twentieth Century, courts began to abolish the
privity requirement. Id. Another change was the adoption of
the discovery rule of accrual in numerous jurisdictions. Bain,
Determining the Preemptive Effect of Federal Law on State
Statutes of Repose, 43 U. Balt. L. Rev. 119, 126 (2014). As a
result, statutes of repose were adopted in forty-seven States
and the District of Columbia. Daugherty & Flora, supra at 1231-
1232.
9
upheld G. L. c. 260, § 2B, over a constitutional challenge, even
though it abolishes a plaintiff's cause of action without
providing any alternative remedy. Klein, supra at 709-713.
Since deciding Klein, we have consistently enforced
statutes of repose according to their plain terms, despite the
hardship they may impose on plaintiffs. "Unlike statutes of
limitation, statutes of repose cannot be 'tolled' for any
reason." Nett, 437 Mass. at 635. For example, although G. L.
c. 260, § 7, tolls any applicable statute of limitations until a
minor plaintiff reaches majority, it does not toll the statute
of repose. Tindol v. Boston Hous. Auth., 396 Mass. 515, 517-518
(1986). The statute of repose eliminates a plaintiff's cause of
action even in cases of fraudulent concealment. Sullivan v.
Iantosca, 409 Mass. 796, 798 (1991). See Joslyn v. Chang, 445
Mass. 344, 350-351 (2005) (statute of repose for medical
malpractice, G. L. c. 260, § 4, not subject to equitable
estoppel or tolling due to fraudulent concealment). In
addition, the statute of repose is not subject to the "relation
back" concept that permits adding a defendant by amending the
complaint after the expiration of the repose period. Tindol,
supra at 518-519. "Simply put, after six years, [G. L. c. 260,
§ 2B,] completely eliminates a cause of action against certain
persons in the construction industry." Klein, 386 Mass. at 702.
10
Where a claim does not obviously sound in tort, we have
examined the nature of the underlying action to determine
whether a statute of repose applies. See Anthony's Pier Four,
Inc. v Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 823 (1986)
(court must look to "gist of the action" to determine whether
claim is based in contract or tort [citation omitted]);
McDonough v. Marr Scaffolding Co., 412 Mass. 636, 639 (1992)
(breach of warranty claims that sound in tort, not contract, are
barred by statute of repose); Dighton v. Federal Pac. Elec. Co.,
399 Mass. 687, 691 n.6, cert. denied, 484 U.S. 953 (1987) (claim
for breach of warranty states cause of action which sounds, like
negligence, in tort and not in contract); Klein, 386 Mass. at
719 (warranty claim alleged only that defendant promised to
"exercise [the] standard of reasonable care required of members
of his profession" therefore negligence and warranty claims
essentially alleged same elements); Coca-Cola Bottling Co. of
Cape Cod v. Weston & Sampson Eng'rs, Inc., 45 Mass. App. Ct.
120, 124 (1998) (statute of repose applies where implied
warranty claim based in tort).
Bridgwood argues, relying on Kattar v. Demoulas, 433 Mass.
1 (2000), that because the relief available under G. L. c. 93A
is "sui generis," neither wholly tortious nor wholly contractual
in nature, the statute of repose does not apply. Id. at 17,
quoting Greenfield Country Estates Tenants Ass'n, Inc. v. Deep,
11
423 Mass. 81, 88 (1996). Bridgwood also argues that a violation
of G. L. c. 142A, § 17 (10), constitutes a per se violation of
G. L. c. 93A and, as such, it is not precluded by the statue of
repose. Thus, according to Bridgwood, we need not be concerned
with whether the underlying action sounds in tort because G. L.
c. 93A takes us out of that orbit.
The language relied on by Bridgwood from Kattar, a case
which did not concern the statute of repose, does not prevent a
court from looking to the substance of the action to determine
whether it sounds in tort. Stated another way, it does not
permit a plaintiff to avoid the statute of repose by relabeling
what is essentially a tort claim as a claim under G. L. c. 93A.
Cf. Anthony's Pier Four, Inc., 396 Mass. at 823, quoting
Hendrickson v. Sears, 365 Mass. 63, 85 (1974) ("A plaintiff may
not . . . escape the consequences of a statute of repose . . .
on tort actions merely by labelling the claim as contractual.
The court must look to the 'gist of the action'").
Recognizing that G. L. c. 260, § 2B, applies only to
actions in tort, the motion judge analogized the claim to an
action for an alleged breach of implied warranty. Although an
untimely action for breach of an implied warranty is barred
where the "breach of warranty claims essentially allege the same
elements as the negligence claims," McDonough, 412 Mass. at 642,
this is not the case with an action for breach of an express
12
warranty, which is an action in contract. Anthony's Pier Four,
Inc., 396 Mass. at 822. In determining whether a given case is
an action in tort governed by the statute of repose, we "look to
the 'gist of the action.'" Id. at 823, quoting Hendrickson, 365
Mass. at 85. A key difference between an action in tort and an
action in contract is that in the latter, "the standard of
performance is set by the defendants' promises, rather than
imposed by law." Anthony's Pier Four, Inc., supra at 822,
citing W.L. Prosser & W.P. Keeton, Torts § 92, at 656, 657 (5th
ed. 1984). Because a claim for breach of express warranty,
unlike a negligence claim, requires a plaintiff to prove "that
the defendant promised a specific result," we held that § 2B did
not apply to such a claim. Anthony's Pier Four, Inc., supra at
823.
Similarly, there are a number of Appeals Court cases where
a plaintiff has alleged that a contractor has violated G. L.
c. 93A, that use "gist of the action" to determine whether the
statute of repose applies. For example, in Kelley v. Iantosca,
78 Mass. App. Ct. 147 (2010), the Appeals Court held that, to
the extent the plaintiff alleged that the defendants violated
G. L. c. 93A through their acts and omissions during the
construction of his house, the claim was barred by the statute
of repose, for "those allegations are sufficiently tort-like to
13
bring them within the statute's ambit."6 Id. at 154, citing
Beaconsfield Townhouse Condominium Trust v. Zussman, 49 Mass.
App. Ct. 757, 761 n.12 (2000). See Fine v. Huygens, DiMella,
Shaffer & Assocs., 57 Mass. App. Ct. 397, 404 (2003) (statute of
repose applies to G. L. c. 93A claims that are "tort-like in
nature"); Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796,
802-803 (2002), quoting McDonough, 412 Mass. at 642 ("[A]ctions
for breach of implied warranty are also barred . . . when the
warranty claims 'essentially allege the same elements as the
negligence claims'").
Applying these principles here, we conclude that
Bridgwood's claim is likewise barred by the statute of repose.
Bridgwood's claim is essentially that the defendants failed to
perform the electrical work in compliance with the standards set
forth in G. L. c. 142A, § 17 (10). It is indistinguishable from
a claim of negligence. Therefore, it sounds in tort and, having
been commenced well beyond the six-year deadline, is barred by
6 Bridgwood's G. L. c. 93A claims arising out of the
defendants' alleged misrepresentations, however, are not barred.
Kelley v. Iantosca, 78 Mass. App. Ct. 147, 154-155 (2010),
discussing Sullivan v. Iantosca, 409 Mass. 796, 799-800 (1991).
"'Section 2B [of G. L. c. 260] grants protection to designers,
planners, builders, and the like. . . . It does not do so for
people who sell real estate.' . . . Thus, while G. L. c. 260,
§ 2B, bars any claim arising out of what [the defendants] did
when they built the house, it does not bar claims under G. L.
c. 93A arising out of misrepresentations they made about what
they did." Kelley, supra at 154-155, quoting Sullivan, supra at
799.
14
G. L. c. 260, § 2B. Were we to hold otherwise, no contractor
would ever be able to "put a project to rest."
We also have followed this analytic framework when
determining whether G. L. c. 228, § 1, which states that a tort
survives a plaintiff's death, applied to claims presented under
G. L. c. 93A. In Klairmont v. Gainsboro Restaurant, Inc., 465
Mass. 165, 178-179 (2013), we concluded that a G. L. c. 93A
claim survived the plaintiff's death because it was, in
substance, an action in tort. Thus, even though G. L. c. 93A is
not referenced in G. L. c. 228, § 1, the statute applied to the
plaintiff's claim and the estate could continue the action.
It is not apparent that, by enacting G. L. c. 142A, § 17,7
and making the building laws enforceable through G. L. c. 93A,
the Legislature intended to deprive contractors of the
protection of the statute of repose. General Laws c. 260, § 2B,
the statute of repose applicable to building professionals, was
enacted by the Legislature in 1968 and amended in 1973 and 1984.
See St. 1968, c. 612; St. 1973, c. 777, § 2; St. 1984, c. 484,
§ 53. As recently as 2018, the Legislature had proposed
amendments to the statute to specifically include condominiums.8
7 General Laws c. 142A, § 17, was enacted in 1991, and
amended in 1998 and 2009. See St. 1991, c. 453; St. 1998,
c. 161, § 507; St. 2009, c. 4, §§ 20, 21.
8 In Commonwealth v. Owens-Corning Fiberglas Corp., 38 Mass.
App. Ct. 600, 601 (1995), the Appeals Court held that the
15
See 2018 House Doc. No. 4236. The consumer protection act,
G. L. c. 93A, was passed by the Legislature in 1967, see
St. 1967, c. 813, § 1, and various sections have been amended
throughout the years. Section 2 was last amended in 1978. See
St. 1978, c. 459, § 2. Section 9 was amended in 1970, 1971,
1973, 1978, 1979 (twice), 1986, 1987, 1989, and 2004. See
St. 1970, c. 736, §§ 1, 2; St. 1971, c. 241; St. 1973, c. 939;
St. 1978, c. 478, §§ 45, 46; St. 1979, c. 72, § 1; St. 1979,
c. 406, §§ 1, 2; St. 1986, c. 557, § 90; St. 1987, c. 664, § 3;
St. 1989, c. 580, § 1; St. 2004, c. 252, § 1.
As we have already discussed, G. L. c. 260, § 2B, was
enacted to shield contractors from the burden of liability
asbestos revival statute, which established time periods during
which the Commonwealth and its subdivisions could bring actions
which would otherwise be time barred by the statute of repose,
revived claims against installers of asbestos notwithstanding
that the revival statute did not mention the statute of repose.
The court reasoned that the phrase is "[s]o foreign to
legislative usage" that the Legislature is not expected "to use
it or refer to it when enacting [statutes] specially designed to
breathe new life . . . into liability that would otherwise have
been extinguished by passage of time." Id. at 603. The court
noted that "[i]t is also worth bearing in mind that the
Commonwealth is not bound by a statute of limitations unless it
expressly consents to be bound by such a statute. Id., citing
United States v. Commissioner of Banks, 254 Mass. 173, 176
(1925), and Boston v. Nielsen, 305 Mass. 429, 430 (1940). The
statutory expression of that principle appears in G. L. c. 260,
§ 18, which provides that "[t]he limitations of the preceding
sections of this chapter . . . shall apply to actions brought by
or for the [C]ommonwealth." In thus making itself subject to
the bars of c. 260, the consent section does not distinguish
between the conventional statutes of limitations that appear in
other sections of c. 260 and the statute of repose, which
appears in § 2B.
16
throughout their careers and into retirement for work that had
long since been completed. "There comes a time when [a
defendant] ought to be secure in his reasonable expectation that
the slate has been wiped clean of ancient obligations, and he
ought not to be called on to resist a claim 'when evidence has
been lost, memories have faded, and witnesses have
disappeared.'" Klein, 386 Mass. at 709, quoting Rosenberg, 61
N.J. at 201. Had the Legislature intended to remove this shield
and expose contractors to indefinite liability for claims
arising long after the completion of their work, it would have
said so explicitly.9
Conclusion. In sum, Bridgwood's G. L. c. 93A claim is
sufficiently tort-like to bring it within the ambit of the
statute of repose. Because this action was commenced more than
six years after the work was completed, it is barred by G. L.
c. 260, § 2B, and the complaint was properly dismissed.
9 If the Legislature desires to narrow the applicability of
the repose period -- for instance, by amending G. L. c. 260,
§ 2B, to state that it does not apply to construction claims
brought under G. L. c. 142A, § 17 (10), or G. L. c. 93A -- it
may do so. Such is the province of the Legislature, not the
courts. We decline to hold that the § 2B statute of repose has
been superseded "in the absence of express words to that
effect." Registrar of Motor Vehicles v. Board of Appeal on
Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981).
Likewise, "[i]mplied repeal of a statute is disfavored," and we
avoid doing so "unless [that statute] 'is so repugnant to, and
inconsistent with, the later enactment that both cannot stand.'"
Commonwealth v. Harris, 443 Mass. 714, 725 (2005), quoting
LaBranche v. A.J. Lane & Co., 404 Mass. 725, 728 (1989). This
is not the case with the statutes at issue.
17
Judgment affirmed.
GANTS, C.J. (dissenting, with whom Lenk and Budd, JJ.,
join). General Laws c. 260, § 5A, provides that "[a]ctions
arising on account of violations of any law intended for the
protection of consumers, including but not limited to . . .
[G. L. c. 93A (c. 93A)] . . . whether for damages, penalties or
other relief and brought by any person, including the attorney
general shall be commenced only within four years next after the
cause of action accrues." Section 5A is solely a statute of
limitations -- it contains no statute of repose. In contrast,
G. L. c. 260, § 2B, which governs actions "of tort for damages
arising out of any deficiency or neglect in the design,
planning, construction or general administration of an
improvement to real property," and G. L. c. 260, § 4, which
governs actions "of contract or tort for malpractice" against
physicians, contain both a statute of limitations and a statute
of repose. Because a statute of repose is, after all, a
creature of statute and not of the common law, and because the
Legislature did not choose in G. L. c. 260, § 5A, to bar
consumers through a statute of repose from bringing c. 93A
claims that are timely under the statute of limitations, I
dissent.
A statute of limitations limits the time in which a
plaintiff may bring an action "after the cause of action
accrues." See G. L. c. 260, §§ 2B, 5A. A cause of action does
2
not accrue until a plaintiff "knows or reasonably should know
that he or she has suffered harm and that the harm was caused by
the [defendant's] conduct." Parr v. Rosenthal, 475 Mass. 368,
378 (2016). Consequently, the statute of limitations clock does
not begin to run until a plaintiff knows, or should know, that
he or she has suffered an injury arising from the defendant's
conduct. See id. See also Hendrickson v. Sears, 365 Mass. 83,
91 (1974). If that knowledge is delayed because the defendant
has fraudulently concealed the injury, or otherwise misled the
plaintiff regarding the cause of his or her injury, the clock is
tolled until the plaintiff is put on reasonable notice of the
defendant's responsibility for his or her injury. See Hays v.
Ellrich, 471 Mass. 592, 603, cert. denied, 136 S. Ct. 503
(2015). The statute of limitations for actions of tort for
damages arising out of any negligence in the design, planning,
improvement, or construction of real property is three years.
See G. L. c. 260, § 2B. The statute of limitations for actions
arising from a violation of a law intended for the protection of
consumers, including c. 93A, is four years. See G. L. c. 260,
§ 5A. Where the same conduct constitutes both a common-law tort
under G. L. c. 260, § 2B, and a violation of a consumer law such
as c. 93A under G. L. c. 260, § 5A, the plaintiff is entitled to
the four-year statute of limitations under § 5A, regarding the
cause of action arising from the violation of c. 93A. See
3
Passatempo v. McMenimen, 461 Mass. 279, 297 (2012) ("the mere
fact that the G. L. c. 93A violations alleged would also support
a common-law tort claim does not make them subject to the
shorter, three-year limitation period"). See also Fine v.
Huygens, DiMella, Shaffer & Assocs., 57 Mass. App. Ct. 397, 404-
405 (2003) ("We reject the contention that a c. 93A claim
necessarily fails because the underlying claim upon which it
depends has been dismissed as not timely filed. . . . The
c. 93A claim need only be dismissed if, under c. 93A's four-year
limitations period . . . , it was not timely filed" [citation
omitted]).
Under a statute of repose, however, the repose clock starts
to run, not at the time the cause of action accrues, but at a
time established by statute. For common-law tort actions under
G. L. c. 260, § 2B, the clock starts to run from the earlier of
the date of "the opening of the improvement to use" or the date
the owner takes possession of the improvement for occupancy
after its "substantial completion." Consequently, under G. L.
c. 260, § 2B, even if the limitations clock has yet to accrue
because the injury from a contractor's misconduct is not yet
apparent, or because the contractor has concealed the misconduct
from the property owner, the property owner is barred from
bringing any tort claim after the six-year statute of repose
period. See Sullivan v. Iantosca, 409 Mass. 796, 798 (1991)
4
("Section 2B, in its statute of repose aspect, forbids us from
considering the fact that a plaintiff did not discover or
reasonably could not have discovered the harm before the six-
year period of the statute of repose expired," and "[w]e
similarly reject the plaintiff's claim that the fraudulent
concealment provisions of G. L. c. 260, § 12 . . . [and any
common law estoppel] prevent [the statute of repose in G. L.
c. 260, § 2B,] from applying here" [citations omitted]). In
short, as is alleged in this case, the property owner may be
barred by the statute of repose from bringing a claim before he
or she knows, or reasonably should know, that he or she even has
a claim -- even where the defendant has fraudulently concealed
the claim from the plaintiff. Consequently, a statute of repose
reflects a legislative decision that it is more important to
protect certain defendants from old claims than it is to protect
the right of plaintiffs to enforce otherwise valid and timely
claims.
The statute of repose was added to G. L. c. 260, § 2B, in
1968. See St. 1968, c. 612. At that time, it could not have
been intended to cover claims under c. 93A, because there was no
private right of action for consumers under c. 93A, § 9, until
1969. See St. 1969, c. 690.
General Laws, c. 260, § 5A, which established a four-year
statute of limitations for actions claiming a violation of
5
c. 93A, was enacted in 1975. See St. 1975, c. 432, § 2. By
1975, it was well established that new home construction claims
may fall within the rubric of G. L. c. 93A, § 9, because in
1971, § 9 was amended to protect any person injured through an
unfair or deceptive act or practice who "purchases or leases
goods, services or property, real or personal" (emphasis added).
See St. 1971, c. 241, amending St. 1970, c. 736, § 1.1 This
revision of § 9 was meant specifically to extend the scope of
c. 93A private causes of action to the sale of real estate,
which is made apparent by the act's title: "An Act extending
certain equitable remedies under the consumer protection law to
certain aggrieved persons who purchased real estate for personal
or family use." See St. 1971, c. 241. At the time, then
Governor Francis W. Sargent submitted official remarks, stating
that the "bill will help answer complaints of those who have
been victimized by the few fly-by-night builders who try to
leave expensive corrective repairs to the hapless new
homeowner." See 1971 House Doc. No. 5221. Even though c. 93A
1 The language of G. L. c. 93A, § 9, has since been amended,
and now § 9 affords a remedy to "[a]ny person . . . who has been
injured by another person's use or employment of any method, act
or practice declared to be unlawful by section two or any rule
or regulation issued thereunder . . . ." See St. 1979, c. 406,
§ 1. This amendment broadens even further the protection
afforded to persons injured through an unfair or deceptive act
or practice, insofar as § 9 "may no longer contain limits based
on the nature of the transaction." Murphy v. Charlestown Sav.
Bank, 380 Mass. 738, 743 (1980). See id. at 743 n.7.
6
claims were recognized as potentially including actions alleging
deficiency or neglect in the design and construction of new
homes, no statute of repose was included in G. L. c. 260, § 5A,
to protect those responsible for the design or construction of
defective homes.
In 1991, the Legislature enacted G. L. c. 142A. See St.
1991, c. 453. Section 17 protects consumers from unsavory
contractors and subcontractors by identifying seventeen types of
prohibited acts by contractors and subcontractors, including
violating the building laws of the Commonwealth or of any
political subdivision, and sets forth three separate and
distinct avenues to enforce these prohibitions. See G. L.
c. 142A, § 17. First, the statute provides that any violation
of § 17 "shall constitute an unfair or deceptive act under the
provisions of [c. 93A]," and thus creates a private right of
action under c. 93A, § 9, for such violations. See G. L.
c. 142A, § 17. Second, the statute provides that "[v]iolations
of this section shall subject the violator to the administrative
sanctions of [G. L. c. 142A, § 18]," which include revocation or
suspension of the contractor's or subcontractor's certificate of
registration, and administrative penalties of up to $2,000 for
each violation. See G. L. c. 142A, §§ 17, 18. Third, the
statute provides that "[v]iolations of this section shall
subject the violator to . . . criminal prosecution as prescribed
7
in [G. L. c. 142A, § 19]," which authorizes the Attorney General
or any district attorney to prosecute any person who knowingly
and wilfully violates any provision of § 17 and, unless another
statute provides for a greater penalty, subjects the violator
upon conviction to imprisonment of up to one year or a fine of
up to $2,000, or both, in addition to any administrative
penalty. See G. L. c. 142A, §§ 17, 19.
There is no reason to believe that the Legislature intended
to limit the private right of action to remedy violations of
G. L. c. 142A, § 17, through civil actions under c. 93A by
imposing a statute of repose. Not only did the Legislature fail
to include any statute of repose in G. L. c. 260, § 5A, but it
deemed the conduct in G. L. c. 142A, § 17, so serious that it
provided three separate and distinct means to enforce any
violation, including criminal prosecution. Why would the
Legislature seek to protect those who engaged in such unfair and
deceptive acts from c. 93A actions brought within the statute of
limitations by granting them a statute of repose that could
potentially shield such violations from any private cause of
action by injured consumers? And why would the Legislature
provide an incentive to those who engage in such unfair and
deceptive acts to conceal those acts from the consumer until six
years have passed, so that the statute of repose could thwart a
8
consumer from obtaining a remedy for his or her injury under
c. 93A?
The court's opinion appears to rest on four Appeals Court
opinions for its conclusion that we look "to the gist of the
action to determine whether the statute of repose applies."
Ante at . But a closer look at these cases demonstrates that
they offer scant support for this conclusion. In the earliest
of the four cases, Beaconsfield Townhouse Condominium Trust v.
Zussman, 49 Mass. App. Ct. 757 (2000), the Appeals Court ordered
all the claims, including the c. 93A claim, dismissed not
because of the statute of repose, but because of the statute of
limitations. See id. at 757 ("We decide that the grounds for
the causes of action against the defendants were knowable by the
trust as early as February, 1978, and were barred by the
applicable statutes of limitations by the time the complaint was
filed in 1986 against the residual defendants. Accordingly, we
reverse the judgment"). Although the Appeals Court declared
that all the claims against the relevant defendants, including
the c. 93A claims, were "in the nature of tort" in that they all
relied on alleged misrepresentations regarding the quality of
the roof that was delivered, the court recognized that the c.
93A claims were subject to the four-year statute of limitations
under G. L. c. 260, § 5A, not the three-year statute of
9
limitations under G. L. c. 260, § 2B. See id. at 760-761 &
n.12. The term "repose" was never used in the opinion.
In the second opinion, Rosario v. M.D. Knowlton Co., 54
Mass. App. Ct. 796, 797 (2002), the plaintiff was injured by a
hydraulic lift that had been installed a decade earlier in a
manufacturing facility, and brought claims against the
manufacturer and distributor of the hydraulic lift alleging
negligence, breach of the express and implied warranty, and
unfair or deceptive acts or practices, in violation of c. 93A.
The motion judge granted summary judgment for the defendants on
all claims, finding that the claims were barred under the
statute of repose because the lift was "an improvement to real
property" and, therefore, the claims were governed by the
statute of repose in G. L. c. 260, § 2B. See id. at 797, 800.
The issues on appeal were whether the lift (which was
permanently installed at the manufacturing facility) constituted
"an improvement to real property," and whether the defendants
were "protected actors" under § 2B. See id. at 799-800. The
Appeals Court ruled that the lift was an improvement to real
property, and that the defendants were protected actors,
accordingly affirming the grant of summary judgment. See id. at
800-802. There is no indication from the opinion that the
plaintiff challenged the application of the statute of repose in
G. L. c. 260, § 2B, to his c. 93A claim. As a result, all that
10
the Appeals Court said as to that claim was that the plaintiff's
"c. 93A count is premised on claims dismissed on summary
judgment. This count falls with them." Id. at 803.
In the third opinion, Fine, 57 Mass. App. Ct. at 404, the
Appeals Court determined that each of the c. 93A claims was
based on an alleged breach of the implied warranty of
merchantability, and were therefore "tort-like in nature." But
the Appeals Court nonetheless declared that the claims asserting
unfair and deceptive trade practices under c. 93A were governed
by the four-year statute of limitations period in § 5A, not the
three-year limitations period for torts, and expressly rejected
"the contention that a c. 93A claim necessarily fails because
the underlying claim upon which it depends has been dismissed as
not timely filed." Id. at 404-405. The court provided no
explanation as to why it determined that the statute of repose
in G. L. c. 260, § 2B, applied to claims under c. 93A that are
"tort-like in nature," when the statute of limitations in G. L.
c. 260, § 5A, not the limitations period in G. L. c. 260, § 2B,
applied to these same claims. See id. at 404.
The fourth opinion, Kelley v. Iantosca, 78 Mass. App. Ct.
147 (2010), cites both Beaconsfield Townhouse Condominium Trust
and Fine for its conclusory declaration that the c. 93A "claim
is barred by the statute of repose, for although focusing on
c. 93A, those allegations are sufficiently tort-like to bring
11
them within [G. L. c. 260, § 2B's] ambit." Kelley, supra at
154.2
These cases have led the court to conclude that, if a
c. 93A claim is "tort-like" in nature, the statute of repose in
§ 2B applies. But we only look to the nature of the underlying
claim where the claim arises under the common law. Thus, where
a plaintiff frames what is essentially a common-law claim
sounding in tort as a contract claim in an attempt to obtain the
benefit of the six-year statute of limitations under G. L.
c. 260, § 2 -- rather than the three-year statute of limitations
under G. L. c. 260, § 2A (for actions in tort or contract to
recover for personal injuries, and actions in replevin) or § 2B
-- we "look to the 'gist of the action'" and apply the three-
year statute of limitations applicable to torts. See Anthony's
The court's opinion also looks for support from Klairmont
2
v. Gainsboro Rest., Inc., 465 Mass. 165, 178-179 (2013), where
we held that a c. 93A claim survived the death of the plaintiff
under the Massachusetts survival statute, G. L. c. 228, § 1.
Section 1 makes no reference to c. 93A claims, but did provide
for the survival of "'[a]ctions of tort for . . . other damage
to the person." Klairmont, supra at 179. We held that the
c. 93A claim, which rested on persistent and knowing violations
of the building code that created hazardous conditions in a bar
and restaurant, "is substantively akin to the types of torts
within the scope of G. L. c. 228, § 1, and that, therefore, the
claim survives." Id. In Klairmont, we interpreted a statute
(G. L. c. 228, § 1) that we described as "flexible" and
"dynamic," see id., quoting Harrison v. Loyal Protective Life
Ins. Co., 379 Mass. 212, 215 (1979), to permit the survival of a
c. 93A claim after the death of the plaintiff. Our ruling in
that case does not provide support for this court's attempt to
deprive the plaintiff of her ability to bring a c. 93A claim
that is timely under the statute of limitations.
12
Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass.
818, 823 (1986), quoting Hendrickson, 365 Mass. at 85 ("A
plaintiff may not . . . escape the consequences of a statute of
repose or statute of limitations on tort actions merely by
labelling the claim as contractual. The court must look to the
'gist of the action'"). But where the underlying claim is a
"tort-like" statutory claim brought under c. 93A, our case law
makes clear that we apply the four-year statute of limitations
specified in G. L. c. 260, § 5A, see supra, not the three-year
statute of limitations in G. L. c. 260, § 2A or 2B. See
Passatempo, 461 Mass. at 297; Beaconsfield Townhouse Condominium
Trust, 49 Mass. App. Ct. at 761. In doing so, we not only
respect the statutory mandate in G. L. c. 260, § 5A, but also
recognize that a c. 93A claim "is neither wholly tortious nor
wholly contractual in nature, and is not subject to the
traditional limitations of preexisting causes of action."
Kattar v. Demoulas, 433 Mass. 1, 12 (2000), quoting Slaney v.
Westwood Auto, Inc., 366 Mass. 688, 704 (1975).
In addition, where we apply the statute of limitations in
G. L. c. 260, § 2B, we also apply the statute of repose in § 2B.
See Kelley, 78 Mass. App. Ct. at 150; Fine, 57 Mass. App. Ct. at
401-404. It does not make sense to exempt c. 93A claims from
the statute of limitations in § 2B and yet still subject such
claims to the statute of repose in § 2B. Where the Legislature
13
did not choose to include a statute of repose under G. L.
c. 260, § 5A, to shield those who engaged in unfair and
deceptive acts in violation of c. 93A from six-year old claims
that are timely brought under the statute of limitations, it is
not the appropriate role of this court to do it ourselves.
Because this opinion, in effect, adds a statute of repose to
G. L. c. 260, § 5A, for c. 93A claims to protect contractors and
subcontractors from liability for unfair and deceptive acts that
arise out of deficiency or neglect in their design, planning, or
construction, and because this is a usurpation of a distinctly
legislative prerogative, I dissent.