MA APPEALS COURT ADDRESSES SCOPE OF STATUTE OF REPOSE
Recently, the Massachusetts Appeals Court issued an important decision addressing the scope of the protections that are afforded to design professionals, contractors, subcontractors, and others involved with improvements to real property by what is known as the Massachusetts statute of repose, Mass. Gen. Laws c. 260, § 2B.
The Massachusetts statute of repose limits the time period within which tort claims can be brought in connection with any improvements to real estate.
Specifically, Section 2B provides that no tort action shall be brought “arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property” more than six years after “(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,” whichever date occurs earlier. Similar in some respects to a statute of limitations, the Massachusetts statute of repose establishes a fixed point in time after which a plaintiff’s legal claims will be held time barred if suit has not been commenced before the legal cutoff date.
In UMass Building Authority v. Adams Plumbing & Heating, Inc., the Massachusetts Appeals Court addressed whether breach of warranty and contractual indemnification claims brought beyond the six-year time period survived the bar imposed by the statute of repose.
The UMass case began with the 2013-2014 renovation of a dining hall on the UMass campus. The project was completed and the dining hall opened for use in September of 2014. In 2018, UMass identified a series of alleged deficiencies with ductwork and control systems in the renovated dining hall’s exhaust system. In December of 2020, UMass then brought suit against the architect, general contractor, and various subcontractor involved with the project. Suit was filed slightly more than 6 years after the completion of the work.
Massachusetts courts often point to the precedent that “[w]hile the statute [of repose] applies specifically to actions of tort, a plaintiff may not escape the consequences of the statute by recasting a negligence claim in the form of another claim.”
With regards to the UMass dispute, the Appeals Court held that the breach of warranty and contractual indemnification claims amounted to nothing more than allegations that the defendants allegedly had failed to comply with the implied duty of reasonable care. Although UMass styled its Complaint as non-tort causes of action, the Court held those claims were barred by the Massachusetts statute of repose.
Significantly, the Court noted, however, that if the defendants’ contracts and/or statements amounted to explicit promises or assurances of specific results, the breach of warranty claims potentially would not have been subject to the statute of repose. Similarly, the Court noted that if the claims involved alleged injury to persons or property separate from the defendants’ allegedly deficient work, the contractual indemnification claims potentially also would not have been barred by the statute of repose.
So, you might ask what does this all mean when evaluating potential construction defects and the timeframe for bring a suit? First, this decision in UMass v. Adams Plumbing further clarifies the scope of the Massachusetts statute of repose and serves as yet another reminder to those involved throughout the design and construction industries of the critical importance of having carefully drafted contracts designed to minimize risk under applicable law.
For any property manager or condominium association involved with improvements to real property in Massachusetts, they should always make sure to familiarize themselves with the important protections afforded by the Massachusetts statute of repose, as well as the ways in which contractual language and/or extra-contractual statements potentially may give rise to claims that fall beyond the protections of the statute.
When in doubt, consult with Seth Barnett who can help guide you through the applicable legal requirements.