Bridgwood v. A.J. Wood Constr., Inc.

480 Mass. 349

105 N.E.3d 224

Terry BRIDGWOOD

v.A.J. WOOD CONSTRUCTION, INC.,¹ & others.²

SJC-12352

Supreme Judicial Court of Massachusetts, Essex..

Argued January 8, 2018

Decided August 29, 2018

Roy D. Toulan, Jr., for the plaintiff.

Lili K. Geller for A.J. Wood Construction, Inc., & another.

Mark C. Darling, Worcester, for Anthony Caggiano.

The following submitted briefs for amici curiae:

Martin J. Rooney, Braintree, for Massachusetts Defense Lawyers Association.

Ryan D. Sullivan, Boston, for Eastern Massachusetts Chapter of the National Association of the Remodeling Industry.

John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation, amicus curiae.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

At issue in this case is whether a claim alleging that a building contractor committed an unfair or deceptive act under G. L. c. 93A, §§ 2 and 9, by violating G. L. c. 142A, § 17 (10), is subject to the six-year statute of repose set forth in G. L. c. 260, § 2B. The plaintiff, Terry Bridgwood, commenced this action in 2016, alleging that renovations performed in 2000 and 2001 by the defendants, A.J. Wood Construction, Inc. (A.J. Wood); its principal, Richard Smith; and its subcontractor, Anthony Caggiano, caused a fire in her home in 2012. On the defendants' motions, a judge in the Superior Court dismissed the complaint as untimely under the statute of repose. Bridgwood appeals, and we transferred the case to this court on our own motion.³ Because we agree that this case is within the ambit of the statute of repose, we affirm.⁴

Facts. The defendants filed what was styled a motion to dismiss pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974) and Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1975). Under either rule, we accept as true all facts pleaded by Bridgwood in her amended complaint. See Jarosz v. Palmer, 436 Mass. 526, 530, 766 N.E.2d 482 (2002) ; Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47, 691 N.E.2d 545 (1998). See Jarosz, supra at 529, 766 N.E.2d 482, quoting J.W. Smith & H.B. Zobel, Rules Practice § 12.16 (1974) (motion pursuant to rule 12 [c] is "actually a motion to dismiss ... [that] argues that the complaint fails to state a claim upon which relief can be granted").

On October 30, 2000, the city of Newburyport, through its housing rehabilitation program, awarded A.J. Wood and Smith a contract for the rehabilitation of Bridgwood's home in Newburyport. Smith and A.J. Wood retained Caggiano as the electrical subcontractor for the rehabilitation of the premises. Newburyport's contractor agreement for the housing program provided that Smith and A.J. Wood were to be responsible for the performance of the specified rehabilitation work in accordance with certain standards, including that all rehabilitation, alterations, repairs, or extensions be in compliance with all applicable Federal, State, and local codes; before commencing work, contractors or subcontractors obtain all necessary permits; the contractor and subcontractor must personally inspect the premises and give full attention to any and all areas of their involvement; the contractor certify compliance with all Federal, State, and local regulations including G. L. c. 142A, the home improvement contractor law; the contractor take all responsibility for the work done under the contract, for the protection of the work, and for preventing injuries to persons and damage to property and utilities on or about the work; and all work performed meet or exceed all building and fire codes of Newburyport. Bridgwood relied on these specific covenants promised by the defendants in authorizing the work to be performed in her premises.

None of the defendants obtained a permit to replace or repair certain ceiling light fixtures in the premises. None of the defendants gave proper notice to the Newburyport inspector, or arranged or provided for an inspection by the inspector, of the electrical wires used by Caggiano to replace or repair the ceiling light fixtures before the wires were concealed. The electrical rehabilitation work with respect to the ceiling light fixtures was not performed in compliance with any applicable Federal, State, or local codes with respect to such work, as required by the contractor agreement. Bridgwood was not aware of this compliance failure until the concealed wiring work done by Caggiano caused a substantial fire in and damage to her home on January 31, 2012, causing in excess of $40,000 in damage and significant emotional and physical distress to Bridgwood. The amended complaint does not state when the work was performed, but Bridgwood concedes that it was completed in January, 2001. This action was commenced in January, 2016, about fifteen years later.

Discussion. Bridgwood alleges that the defendants violated G. L. c. 93A by violating G. L. c. 142A, § 17 (10). General Laws c. 142A, § 17 (10), prohibits contractors and subcontractors from "violat[ing] the building laws of the commonwealth or of any political subdivision thereof." Section 17 also provides that "[v]iolations of any of the provisions of this chapter shall constitute an unfair or deceptive act under the provision of [G. L. c. 93A]." Bridgwood claims that the defendants failed to perform the electrical work in compliance with those standards and, therefore, committed unfair or deceptive acts. The defendants argue that the claim is barred by the statute of repose set forth in G. L. c. 260, § 2B. According to Bridgwood, however, the statute of repose does not apply to consumer protection claims under G. L. c. 93A.

Statutes of repose and statutes of limitations are different kinds of limitations on actions. A statute of limitations specifies the time limit for commencing an action after the cause of action has accrued, but a statute of repose is an absolute limitation which prevents a cause of action from accruing after a certain period which begins to run upon occurrence of a specified event. See Rudenauer v. Zafiropoulos, 445 Mass. 353, 358, 837 N.E.2d 278 (2005). A statute of repose eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date. See id. Statutes of limitations have been described as a "procedural defense" to a legal claim, whereas statutes of repose have been described as providing a "substantive right to be free from liability after a given period of time has elapsed from a defined event." Bain, Determining the Preemptive Effect of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev. 119, 125 (2014). The statutes are independent of one another and they do not affect each other directly as they are triggered by entirely distinct events. Moore v. Liberty Nat'l Life Ins. Co., 267 F.3d 1209, 1218 (11th Cir. 2001), quoting First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862, 865-866 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990). See Rosenberg v. North Bergen, 61 N.J. 190, 199, 293 A.2d 662 (1972) ("The function of [a] statute [of repose] is thus rather to define substantive rights than to alter or modify a remedy"); Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995) ("[The] distinction has prompted courts to hold that statutes of repose are substantive and extinguish both the right and the remedy, while statutes of limitation are merely procedural, extinguishing only the remedy"). See Bain, supra.

General Laws c. 260, § 5A, which establishes the limitations period for G. L. c. 93A claims, provides that "[a]ctions arising on account of violations of any law intended for the protection of consumers, including but not limited to ... [G. L. c. 93A] ... whether for damages, penalties or other relief and brought by any person, including the attorney general, shall be commenced only within four years next after the cause of action accrues." Section 5A is solely a statute of limitation; it contains no statute of repose.

The statute of repose contained in G. L. c. 260, § 2B, provides in relevant part:

"Actions 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" (emphasis added).

"Like all statutes of repose, '[t]he effect ... is to place an absolute time limit on the liability of those within [its] protection and to abolish a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired.' " Nett v. Bellucci, 437 Mass. 630, 635, 774 N.E.2d 130 (2002), quoting McGuinness v. Cotter, 412 Mass. 617, 622, 591 N.E.2d 659 (1992).

As we discussed in Klein v. Catalano, 386 Mass. 701, 708, 437 N.E.2d 514 (1982), the repose statute at issue there "was enacted in response to case law abolishing the rule that once an architect or builder had completed his work and it had been accepted by the owner, absent privity with the owner, there was no liability as a matter of law." The abolition of that rule exposed "those involved in construction ... to possible liability throughout their professional lives and into retirement." Id. at 708-709, 437 N.E.2d 514. The Legislature therefore "placed an absolute outer limit on the duration of this liability."⁵ Id. at 709, 437 N.E.2d 514. The statute thus protects contractors from claims arising long after the completion of their work. We recognized in Klein that limiting the duration of liability is a legitimate public purpose, and we upheld G. L. c. 260, § 2B, over a...