In a recent decision, the Appeals Court held that a condominium owner’s action based upon toxic mold was timely, even though she filed it nearly five years after observing water in her unit. This case sets the tone to make is easier for plaintiffs to sue and it also emphasizes that it is important for condominium owners to properly remedy water leaks and infiltration in an expeditious manner.
In Doherty v. Admiral’s Flagship Condominium Trust, et al., 80 Mass. App. Ct. 104 (2011), the plaintiff purchased a unit in 2002 at Admiral’s condominium development. Plaintiff’s unit had water leaks in 2004 and although she requested that the condominium trust repair the unit, she alleged that the trust’s repairs were not timely. Subsequently, in 2005, an employee of the company managing the condominium noticed that] the threshold of the door from her condo was rotting and plaintiff noticed mushrooms and infiltration in that spot thereafter in 2006. Ultimately, plaintiff hired a company to check for mold. The company reported to plaintiff in 2006 that there were unsafe levels of toxic mold in her unit due to water infiltration. In 2008, the plaintiff’s doctor ordered her to vacate the property and in February of 2009, plaintiff filed suit against the condominium trust, the property manager and the contractor claiming their failure to rectify the water infiltration caused her permanent health problems.
Judge Thomas Connolly initially allowed the defendants’ motion to dismiss on statute of limitations grounds. Upon appeal, the Appeals Court, noted that under the discovery rule, the statute of limitations is tolled until the plaintiff knows or should know of how she was harmed. Because the issue for Massachusetts Courts is a novel one, the Court looked for guidance from other jurisdictions and how they apply the discovery rule to toxic mold cases. Specifically, that the statute of limitations does not begin to run until the plaintiff had some indication of a hazardous contamination, even though she knew about the leaks at an earlier point.
This is the first Massachusetts Appellate case to apply the statute of limitations for toxic mold which will make it easier for plaintiffs to litigate and conversely have a negative impact on defendants. The purpose of the statute of limitations is not perfunctory but rather protects against unfairness and prejudice by delayed prosecution. Insurers and other defendants should be aware that not only will this ruling make it more difficult to defend these types of cases by limiting the applicability of motions to dismiss, but ultimately the ruling may also have negative consequences if it is applied to other claims of delayed discovery that have nothing to do with toxic mold.
Photo Credit: It Takes Time