News & Thought Leadership from Sulloway & Hollis
Passing Time with the Statute of Repose
It is Monday morning and a new Complaint or claim is sitting in your inbox. It alleges that construction or an installation that occurred over a decade ago caused an accident. Perhaps it is time to look at the statute of repose in your jurisdiction.
What is a statute of repose? Generally speaking, it is a law that simply eliminates a potential cause of action if it a lawsuit is not filed within a specific period without regard to when the accident occurred. Many jurisdictions have a statute of repose and they can vary greatly, from which types of defendants can assert it as a defense and the time frame in which they operate. Massachusetts’ statute of repose is codified a G.L. c. 260, § 2B and applies to actions for tort damages (for comparison purposes, New Hampshire’s statute of repose is 8 years and uses different language). In order to use it as a defense, a defendant needs to do is prove:
- The act at issue involved the “design, planning, construction or general administration of an improvement to real property ….” Massachusetts does not follow a rigid fixture analysis in determining if a particular improvement falls within the statute. See Dighton v. Federal Pacific Elec. Co., 399 Mass. 687, 696, 506 N.E.2d 509, 515 (1987).
- The act at issue was the type that fits within the statute and occurred six (6) years before the Complaint was filed. That is, the statute of repose is not available to a defendant because of its status as an architect, engineer, or builder, but because of the act that resulted in the claim. In Rosario v. M.D. Knowlton Co., 54 Mass.App.Ct. 796, 767 N.E.2d 1126 (2002), the Appeals Court discussed how protected actor status operates under the state of repose.
Massachusetts’ statute of repose has some unique features:
- They are not like a statute of limitations, so the issue of when a cause of action accrues is immaterial. Tindol v. Boston Housing Authority, 396 Mass. 515, 517, 487 N.E.2d 488, 490 (1986). The only dates that matter are the dates of opening of the improvement for use or substantial completion and the date of the Complaint.
- The statute of repose is not subject to a tolling defense. See e.g. Coca-Cola Bottling Co. v. Weston & Sampson Engineers, Inc., 45 Mass.App.Ct. 120, 125, 695 N.E.2d 828, 692 (1998).
- The statute of repose bars the relation back of amendments to an original Complaint. See Tindol, 396 Mass. at 518-519, 487 N.E.2d at 490-491.
A statute of repose can have harsh effects, which the Supreme Judicial Court observed in Klein v. Catalano, 386 Mass. 701, 713, 437 N.E.2d 514, 522 (1982):
“In upholding G.L. c. 260, § 2B, we realize that is some cases, this statute may impose great hardship on a plaintiff who has suffered an injury and has a meritorious claim. However, ‘arguments as to hardship … [are] appropriate respecting the enactment of legislation. They are not controlling in the interpretation of existing statutes.'”
As a result, the statute of repose precludes even wrongful death claims that seek tort damages. See e.g. McDonough v. Marr Scaffolding Co., 412 Mass 636, 591 N.E.2d 1079 (1992).
In light of this, a recent decision from the U.S. District Court for the District of Massachusetts is noteworthy for how it applied Massachusetts’ statute of repose. In Stearns v. Metropolitan Life Ins. Co., — F.Supp.3d — (D.Mass. 2018), the plaintiffs brought a wrongful death claim on behalf of the estate of a decedent who died of mesothelioma after exposure to asbestos during the construction of two power plants. The construction of the plants occurred between 1971 and 1978. The plaintiffs filed the lawsuit in 2015 and the operative (amended) complaint in 2017. One of the defendants, General Electric Company, designed, manufactured, and sold steam turbine generators for installation at both plants and its engineers supervised each installation. The Court ruled that the steam turbine generators were an improvement to real property.
Given the requirements of G.L. c. 260, § 2B it would appear that GE satisfied its basic requirements given that over 30 years elapsed between substantial completion and the date of the complaint, but that is not how this case worked out.
Instead, the Court focused on the plaintiffs’ claims in the context of GE’s conduct, which involved “asbestos-related work.” From the outset, this is an interesting framework for the analysis of a G.L. c. 260, § 2B defense because the statute is framed more broadly – “Action of tort for damages ….” In distinguishing Klein, the Court explicitly noted the potentially harsh results of the statute, the Court declined to apply the statute of repose because it determined that the policy reasons for the statute did not apply to an asbestos-related case. It reasoned that the dangers of asbestos were well-known by 1971, so unlike the installation of a plate-glass window, GE did not have a “reasonable expectation that the slate has been wiped clean of ancient obligations.” “The realities of [an] asbestos claim are fundamentally different than the claims contemplated by the Klein court,” citing the extended latency periods after exposure to asbestos. Finally, the Court reasoned, “staleness of evidence is not as important a factor in a case like [the plaintiff’s].” The last sentence of the Court’s analysis under this section is telling: to apply the statute of limitation “would transform a statute intended to limit liability into one that creates absolute immunity.”
In effect, the Court declined to apply the statute of limitations based on policy reasons, i.e., fairness. The effect of this decision is not clear. Because it is a decision by a Federal Court construing state law it is not precedent. The Court even noted that neither party requested that the question be certified to the Supreme Judicial Court, and although the issue met the requirements for certification, the Court declined to exercise its discretion to do so.
Perhaps this analysis is limited to asbestos-related claims, as the Court indicated. Even this, however, is difficult to reconcile due to the Appeals Court ruling in Commonwealth v. Owens-Corning Fiberglas Corp., 38 Mass.App.Ct. 600, 650 N.E.2d 365 (1995), which applied Massachusetts’ asbestos revival statute to carve out a category of claims for damages that are not subject to the statute of repose. In that case, it took a legislative act to justify avoiding the hardship that Klein noted.
Ultimately, whether a statute of repose will help defend against the claim depends on the facts of the claim/case and your jurisdiction’s specific statute.