Six Years is Long Enough

Posted by Ryan Sullivan, Partner at Curran Antonelli, LLP, EM NARI Government Affairs Committee on 17 October 2018 | 0 Comments

The Massachusetts Supreme Judicial Court Holds That Regardless of Labels, Claims Against Contractors Arising Out of Their Work Must be Brought Within Six Years from Completion or Occupancy

Supported by an Amicus Brief filed on behalf of EM NARI, the Massachusetts Supreme Judicial Court recently affirmed the decision of the Superior Court holding that the six-year statute of repose for construction related tort actions (e.g. negligence, fraud, etc…) bars a homeowner’s claims under the Massachusetts Home Improvement Contractor Statute, M.G.L. c. 142A, and M.G.L. c. 93A. 

In Bridgwood v. A.J. Wood Construction, Inc., et al., the Court considered whether a homeowner’s claim against the Builder survived the passage of approximately 15 years from the time the work was completed.  The home in question was destroyed by fire caused by faulty electrical work.  The electrical work was alleged to have been performed without a proper permit, and without inspection. 

The fire occurred in 2012, long after work at the property had been completed. As such, the homeowner contended that he did not know and could not have known about the negligent work until after the fire. Outside of the construction context, “discovery” of negligent conduct starts the clock on the time frame to bring any legal proceeding relating to the negligent conduct.  Massachusetts has, however, a hard six-year deadline for the filing of any tort claims related to construction.  This hard deadline is referred to as a statute of repose and is codified in Massachusetts at M.G.L. c. 260, § 2B.  The statute of repose provides that any tort claims relating to construction must be filed within six years from the earlier of 1) the opening of the property for use, or 2) substantial completion of the work and occupancy by the owner. 

Cognizant of the six-year statute of repose, the homeowner in Bridgwood attempted a clever end-around.  Rather than sue for negligence, the homeowner sued under M.G.L. c. 142A(17) and c. 93A on a theory that the failure to secure the proper permits and have the electrical work inspected was itself in violation of the law and gave rise to an independent claim.  The homeowner argued that the six-year statute of repose was not applicable to claims under M.G.L. c. 142A or c. 93A because they were not “tort” claims. 

Tracking the position of EM NARI and other trade groups, the Supreme Judicial Court held in a narrow 4-3 decision that the homeowner’s claim was “sufficiently tort-like to bring it within the ambit of the statute of repose.  Because the action was commenced more than six years after the work was completed, it is barred…” 

Had the majority swung in the opposite direction, builders and contractors would never have been completely relieved of potential claims arising out of past projects.  Long after files were closed, employees had moved on, and details of the work were forgotten, builders and contractors would face potential liability perceived violations of M.G.L. c. 142A.  Thankfully for our members and their insurers, the majority of the Supreme Judicial Court held that liability, under any theory stops at six years.   

Ryan Sullivan
Curran Antonelli, LLP
www.curranantonelli.com

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