Heard: January 8, 2018.
action commenced in the Superior Court Department on January
22, 2016. A motion to dismiss was heard by James F. Lang, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Toulan, Jr., for the plaintiff.
K. Geller for A.J. Wood Construction, Inc., & another.
C. Darling for Anthony Caggiano.
following submitted briefs for amici curiae: Martin J. Rooney
for Massachusetts Defense Lawyers Association.
D. Sullivan for Eastern Massachusetts Chapter of the National
Association of the Remodeling Industry.
Pagliaro & Martin J. Newhouse for New England Legal
Foundation, amicus curiae.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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. Because we agree that
this case is within the ambit of the statute of repose, we
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 (2002); Warner-Lambert Co. v.
Execuquest Corp., 427 Mass. 46, 47 (1998). See
Jarosz, supra at 529, 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").
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.
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.
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.
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 (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 Jd. 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. Bait. 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'1 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 (1990).
See Rosenberg v. North Bergen, 61 N.J. 190, 199
(1972) ("The function of [a] statute [of repose] is thus
rather to ...