By Hugh J. Gorman III
Contractors can breathe a sigh of relief
following the recent SJC decision clarifying the statute of repose
and its
applicability to claims asserted under M.G.L. c.93A relating to
building code violations and construction defects.
The Bridgewood v.
A.J. Wood Construction decision (Bridgewood v. A.J. Wood Constr., Inc.,
No. SJC-12352, 2018 WL 4100644, at *2 (Mass. Aug. 29, 2018)) impacts the rights
of consumers to bring an M.G.L. c.93A action against builders and protects
builders from eternal liability for past projects. The Bridgewood case came about after a
customer’s home sustained serious damages as a result of an electrical fire.
The homeowner, Bridgewood, sued the construction company which, fifteen
years prior, had allegedly performed faulty electrical work on her house,
resulting in the fire. Even though the homeowner subsequently discovered
that the contractor had failed to obtain proper permits and had violated state
and federal building codes in performing its work, the Court found that the six-year
statute of repose barred any claims for unfair or deceptive business practices
under M.G.L. c. 93A.
While the homeowner’s claims logically support a
93A cause of action (as a per se violation of 93A due to building code
violations), the Court determined that the statute of repose rendered the claim
invalid, ruling that the statute of repose provides a “substantive right to be
free from liability after a given period of time has elapsed from a defined
event.” This stands in contrast to the more familiar statute of limitations,
which is a procedural limitation on the amount of time permitted to lapse
before a cause of action can be commenced. Under the statute of repose, if a
claim for damages is not asserted within six years of either the “opening of
the improvement for use” or “substantial completion of the improvement and
possession by the owner,” then the cause of action is extinguished. In Bridgewood, the SJC held that a
construction liability claim that would otherwise meet the requirements of 93A
never legally arises if it occurs outside of the six-year window established by
the statute of repose.
This decision has significant implications for
contractors and their customers. Even where there is clear negligence or
deceptive business practices on the part of the contractor, customers are
barred by the statute of repose where the injury is discovered and the claims
are asserted beyond the six-year period of repose.
Chair of Prince Lobel Tye LLP’s
construction law group, Hugh Gorman focuses his practice on construction law,
creditors’ rights, and general business litigation. Hugh can be contacted
by email at hgorman@princelobel.com. Thanks and appreciation to law clerk
Lauren Koslowsky (Northeastern School of Law, 2019), for her assistance with
this article.
