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By: David Slocum
In a recent decision, the Massachusetts Appeals Court has clarified the scope of the significant protections afforded by the Massachusetts statute of repose to design professionals, contractors, subcontractors, and others involved with improvements to real property.
Background: Affording an important protection to design and construction professionals, the Massachusetts statute of repose limits the time period within which tort claims can be brought in connection with any improvements to real estate. Similar in some respects to a statute of limitations, the Massachusetts statute of repose establishes a fixed point in time after which a plaintiff’s legal claims will be held time barred if suit has not been commenced before the legal cutoff date. Specifically, the Massachusetts statute of repose, in part, places an absolute six-year time limitation on “[a]ctions 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 …”
Recent Judicial Interpretation: In the recent case, UMass Building Authority v. Adams Plumbing & Heating, Inc., the Massachusetts Appeals Court examined whether breach of warranty and contractual indemnification claims brought beyond the six-year time period survived the bar imposed by the statute of repose. The case arose out of the 2013-2014 renovation of a dining hall at the UMass Amherst campus. The project was completed and the dining hall opened for use in September of 2014. In 2018, UMass found significant alleged deficiencies with the the ductwork and control systems of the dining hall’s kitchen exhaust system. In December of 2020, UMass brought suit against numerous defendants involved with the project, including the architect, general contractor, and various subcontractors.
Applying established precedent, the Court explained “[w]hile the statute [of repose] applies specifically to actions of tort, a plaintiff may not escape the consequences of the statute by recasting a negligence claim in the form of another claim.” Based on a close examination of the particular language in the applicable contracts as well as the specific representations allegedly made by the various defendants during the project, the Court held that the breach of warranty and contractual indemnification claims amounted to nothing more than allegations that the defendants allegedly had failed to comply with the implied duty of reasonable care. Thus, although styled in the plaintiff’s Complaint as non-tort causes of action, the Court held those claims were barred by the Massachusetts statute of repose.
Significantly, the Court noted, however, that if the defendants’ contracts and/or statements amounted to explicit promises or assurances of specific results, the breach of warranty claims potentially would not have been subject to the statute of repose. Similarly, the Court noted that if the claims involved alleged injury to persons or property separate from the defendants’ allegedly deficient work, the contractual indemnification claims potentially also would not have been barred by the statute of repose.
Practical Considerations: The Appeals Court’s decision in UMass v. Adams Plumbing clarifies the scope of the Massachusetts statute of repose and serves as an important reminder to practitioners throughout the design and construction industries of the critical importance of having carefully drafted contracts designed to minimize risk under applicable law. Architects, engineers, contractors, suppliers, and others involved with improvements to real property in Massachusetts should take care to familiarize themselves with the important protections afforded by the Massachusetts statute of repose, as well as the ways in which contractual language and/or extra-contractual statements potentially may give rise to claims that fall beyond the protections of the statute. When in doubt, consult with knowledgeable legal counsel who can help guide you through applicable legal requirements.