Split Mass. Top Court Says Strict Time Bar Can Apply To 93A | Summer 2018

Boston-based Day Pitney partner Jonathan I. Handler was quoted in an article, "Split Mass. Top Court Says Strict Time Bar Can Apply To 93A," published by Law360. The article discusses a recent 4-3 split decision in the Massachusetts Supreme Judicial Court, which held for the first time that the state's consumer protection law and claims brought under it are not immune to a blanket statute of repose on tort claims. As noted in the article, in response to expanded liability faced by the construction industry, Massachusetts enacted a statute of repose for improvements to real property in 1968. The statute provides that negligence claims arising from such improvements to real property are barred after six years from the date the structure is opened for use or reaches substantial completion. In this recent ruling, the court held that the repose statute also applies to consumers seeking to recover under the state's unfair or deceptive business practices statute, Chapter 93A of the General Laws.

Handler told Law360 that tension between the majority decision and the dissent was particularly interesting—each side argued that its own approach honored the wishes of the Legislature and that any alternative conclusion would require the SJC to improperly impinge on the authority of the legislative branch. "Obviously they have different views of what the current law actually provides," Handler said of the majority and dissent. "They both accuse the other of taking on excessive authority beyond what the court should be doing, but, nonetheless, they come to directly opposite conclusions."

Handler commented further that the rare division was a testament to the difficulty the court had in deciding whether the statute of repose should ever apply to 93A claims. "You don't get a ton of dissents from the [Supreme Judicial Court], especially on things that aren't constitutional issues, which tells you that they struggled with this and it was a really close call," he said.

The case is Bridgwood v. A.J. Wood Construction Inc.