In a rare split decision, the Massachusetts Supreme Judicial Court (SJC) recently ruled that consumer protection claims premised on violations of the state’s home improvement contractor law may be subject to the six-year statute of repose on tort claims.

The decision stemmed from a controversy arising in Bridgwood v. A.J. Wood Construction, Inc., 480 Mass. 349 (2018), involving renovations defendants performed in the plaintiff’s home in 2001. Certain electrical rehabilitation work the defendants completed did not comply with applicable building laws, in violation of G. L. c. 142A, § 17(10), and the compliance failure caused a substantial fire in the plaintiff’s home in 2012. The plaintiff filed suit in 2016 alleging that the defendants’ violation of § 17(10) constituted an unfair or deceptive act under G. L. c. 93A. In response, the defendants argued that the claim was time barred by the six-year statute of repose under G. L. c. 260, § 2B, and the plaintiff countered that the statute of repose did not apply to consumer protection actions brought under c. 93A.

Before ultimately ruling in the defendants’ favor, the Court’s majority discussed the difference between a statute of repose and a statute of limitation. As the Court explained, a statute of limitation sets a time limit for commencing suit after a cause of action has accrued, whereas a statute of repose prevents a cause of action from accruing at all once a specific period has elapsed from a defined event. In pressing the harsh distinction between the two, the Court underscored that, unlike a statute of limitation, a statute of repose cannot be tolled for any reason—even in cases of fraudulent concealment.

Turning to the parties’ respective positions, the Court acknowledged that c. 93A claims are generally governed by the limitations period outlined in G. L. c. 260, § 5A, but opined that if a claim couched in c. 93A sounds in tort, it may nevertheless be subject to the statute of repose contained in § 2B. Section 2B governs 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.” Unlike § 5A, which contains a statute of limitation but not a statute of repose, the repose clock under § 2B starts to run from the earlier of the two: (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.”

In explaining its rationale for extending the statute of repose to claims brought under c. 93A, the Court maintained that § 2B was specifically enacted to protect contractors from claims arising long after a job is completed. So, in the absence of express language stating its intent to do so, the Court declined to adopt the plaintiff’s view that the Legislature meant to deprive contractors of the protection provided by the statute of repose just by making building laws enforceable through c. 93A. As the Court pointed out, “[t]here comes a time when [a defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not to be called on to resist a claim ‘when evidence has been lost, memories have faded, and witnesses have disappeared.’”

As for determining whether a c. 93A claim is subject to the § 2B statute of repose applicable to torts, the Court stressed the importance of looking to the “gist of the action.” The Court highlighted that “[a] key difference between an action in tort and an action in contract is that in the latter, ‘the standard of performance is set by the defendants’ promises, rather than imposed by law.’” In a claim for breach of express warranty, for example, the plaintiff must prove that the defendant promised a specific result, so the Court said that such a claim is not subject to § 2B.

Applying those principles to Bridgwood, the Court opined that, despite being brought under c. 93A, the plaintiff’s action was indistinguishable from a claim of negligence and was therefore subject to the statute of repose applicable to torts under § 2B. Because the action was commenced well beyond the six-year deadline, the Court ruled that the plaintiff’s claim was time barred. The Court was not blind to the hardship its ruling imposed, but stated “[w]ere we to hold otherwise, no contractor would ever be able to ‘put a project to rest.’”

Going Forward

As it stands, an action arising under the Massachusetts home improvement contractor law does not automatically fall outside the ambit of the six-year statute of repose applicable to tort actions simply because it is brought as a c. 93A action. If the gist of an underlying action sounds in tort, it will be subject to G. L. c. 260, § 2B, which prevents a cause of action from accruing six years after “the opening of the improvement to use,” or “the date the owner takes possession of the improvement for occupancy after its substantial completion”—whichever occurs first.