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MA Statute Provides Important Defense to Construction Industry

Massachusetts General Laws c. 260, § 2B, states:

“An action 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.”

The six-year limit in General Laws c. 260, § 2B “is not a statute of limitations but a statute of repose. A statute of limitations normally governs the time within which legal proceedings must be commenced after the cause of action accrues. A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action. The injury need not have occurred, much less have been discovered.” Tindol v. Boston Housing Authority, 396 Mass. 515, 517 (1986) (citations omitted); see also Klein v. Catalano, 386 Mass. 701, 702-703 (1982). “Simply put, after six years, the statute completely eliminates a cause of action against certain persons in the construction industry.” Klein, 386 Mass. at 702. The statute was enacted in response to concerns by the legislature “that the liability of engineers and contractors not be infinite in duration.” Milligan v. Tibbetts Engineering Corp., 391 Mass. 364, 368 (1984).  

For a defendant to be protected by the statute of repose, it must show that:

(1)        The injury the plaintiff claims arose out of the performance of improving real property.

(2)        It “perform[ed] acts of ‘individual expertise’, akin to those commonly thought to be performed by architects and contractors – that is to say, to parties who render particularized services for the design and construction of particular improvements to particular pieces of real property.” Dighton v. Federal Pacific Electric Company, 399 Mass. 687, 696 (1987). 

(3)        Its work involved an improvement to real property. In Milligan, the Supreme Judicial Court stated the definition of “improvement” in the Webster’s Third New Int’l Dictionary at 1138: “a permanent addition to or betterment of real property that enhances its capital value and is designed to make the property more useful or valuable as distinguished from ordinary repairs” to explain the meaning of that word. 391 Mass. at 368, quoting Raffel v. Perley, 14 Mass. App. Ct. 242, 245 (1982) (quotations omitted).

(4)        The plaintiff filed its claim 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. M.G.L. c. 206, § 2B.     

Recently, the Suffolk Superior Court (Kaplan, J.) granted a motion to dismiss we brought on behalf of a general contractor (“the contractor”) on statute of repose grounds; the plaintiff alleged property damage as the result of the contractor’s negligence. See Verizon New England, Inc. v. Lorusso Corp. and United Rentals Highway Technologies, Inc. f/k/a Liddell Bros. Inc., SUCV2008-01052. The contractor had a contract with the Massachusetts Highway Department for Roadway Reconstruction. The contractor finished its performance under its contract with the Massachusetts Highway Department on or about September 17, 2002. Therefore, the plaintiff had until September, 2008 to bring its claim against the contractor without it being time barred by the statute of repose. While the plaintiff filed a complaint against another party relating to the same incident in March, 2008, it did not request leave to amend its complaint to name the contractor as a defendant until June 18, 2009 and did not ultimately file its claim against the contractor until August 6, 2009, almost seven years following the completion of the work. 

We argued that the statute of repose protected the contractor, citing the Supreme Judicial Court’s decision in Milligan, where the Court held that the word “improvement” in M.G. L. c. 260, § 2B includes road construction. 391 Mass. at 368. The Superior Court agreed finding that the contractor’s work was an improvement to real property. In addition, the court concluded that the work performed by the contractor involved “individual expertise” because the plaintiff alleged that the contractor was liable for negligently supervising its subcontractors. The court noted: “The acts of a general contractor in supervising the work of a subcontractor on a roadway construction project clearly involve planning, construction and/or general administration of an improvement to real estate, and therefore, “individual expertise”. See Verizon, supra, Memorandum of Decision and Order on the Defendant’s Motion to Dismiss (Kaplan, J.), pp. 4-5, citing Dighton, 399 Mass. at 695. Further, the court found that even if it treated the June 18, 2009 motion to amend as the date plaintiff commenced its claim against the contractor, the six year period during which the plaintiff could have brought suit expired approximately nine months earlier. Lastly, the court rejected the plaintiff’s contention that even though its complaint against the contractor was not filed until after the six year statute of repose period, it should relate back to the complaint it filed against a separate party in March, 2008.

If you are involved in the construction industry and a tort claim is brought against you in connection with work that you completed over six years earlier, you may be successful in having the claim dismissed as time barred under the statute of repose. Please contact us if you have any questions on the application of the statute to your circumstances.