Bridgwood v. A.J. Wood Construction, Inc.

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SJC-12352

TERRY BRIDGWOOD vs. A.J. WOOD CONSTRUCTION, INC.,1 & others.2

Essex. January 8, 2018. - August 29, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.

Home Improvement Contractors. Consumer Protection Act, Unfair
or deceptive act. Repose, Statute of. Practice, Civil,
Consumer protection case, Claim barred by statute of
repose.

Civil action commenced in the Superior Court Department on
January 22, 2016.

A motion to dismiss was heard by James F. Lang, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Roy D. Toulan, Jr., for the plaintiff.
Lili K. Geller for A.J. Wood Construction, Inc., & another.
Mark C. Darling for Anthony Caggiano.
The following submitted briefs for amici curiae:
Martin J. Rooney for Massachusetts Defense Lawyers
Association.

1 Also known as A.J. Wood Construction.

2 Richard Smith and Anthony Caggiano.
 2

Ryan D. Sullivan for Eastern Massachusetts Chapter of the
National Association of the Remodeling Industry.
John Pagliaro & Martin J. Newhouse for New England Legal
Foundation, amicus curiae.

CYPHER, J. At 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.3 Because we agree that

this case is within the ambit of the statute of repose, we

affirm.4

3 Terry Bridgwood filed a notice of appeal as to Caggiano
and a separate notice of appeal as to A.J. Wood Construction,
Inc., and Smith. We consolidated the two appeals when we
transferred them.

4 We acknowledge amicus briefs submitted by Massachusetts
Defense Lawyers Association, Eastern Massachusetts Chapter of
the National Association of the Remodeling Industry, and New
England Legal Foundation.
 3

Facts. The 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").

On 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
 4

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.

None of 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
 5

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.

Discussion. Bridgwood 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.

Statutes 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
 6

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 id. 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. Balt. 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'l 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

define substantive rights than to alter or modify a remedy");

Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995) ("[The]

distinction has prompted courts to hold that statutes of repose

are substantive and extinguish both the right and the remedy,
 7

while statutes of limitation are merely procedural,

extinguishing only the remedy"). See Bain, supra.

General Laws c. 260, § 5A, which establishes the

limitations period for G. L. c. 93A claims, provides that

"[a]ctions arising on account of violations of any law intended

for the protection of consumers, including but not limited to

. . . [G. L. c. 93A] . . . whether for damages, penalties or

other relief and brought by any person, including the attorney

general, shall be commenced only within four years next after

the cause of action accrues." Section 5A is solely a statute of

limitation; it contains no statute of repose.

The statute of repose contained in G. L. c. 260, § 2B,

provides in relevant part:

"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 . . .
shall be commenced only within three years next after the
cause of action accrues; provided, however, that in no
event shall such actions be commenced more than six years
after the earlier of the dates of: (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" (emphasis added).

"Like all statutes of repose, '[t]he effect . . . is to place an

absolute time limit on the liability of those within [its]

protection and to abolish a plaintiff's cause of action

thereafter, even if the plaintiff's injury does not occur, or is

not discovered, until after the statute's time limit has
 8

expired.'" Nett v. Bellucci, 437 Mass. 630, 635 (2002), quoting

McGuinness v. Cotter, 412 Mass. 617, 622 (1992).

As we discussed in Klein v. Catalano, 386 Mass. 701, 708

(1982), the repose statute at issue there "was enacted in

response to case law abolishing the rule that once an architect

or builder had completed his work and it had been accepted by

the owner, absent privity with the owner, there was no liability

as a matter of law." The abolition of that rule exposed "those

involved in construction . . . to possible liability throughout

their professional lives and into retirement." Id. at 708-709.

The Legislature therefore "placed an absolute outer limit on the

duration of this liability."5 Id. at 709. The statute thus

protects contractors from claims arising long after the

completion of their work. We recognized in Klein that limiting

the duration of liability is a legitimate public purpose, and we

5 Statutes of repose were a legislative response to the
expanded liability faced by the building industry. One such
change involved the concept of privity. Daugherty & Flora,
Survey of Recent Developments in Real Property Law, 46 Ind. L.
Rev. 1199, 1231-1232 (2013). The liability of building
professionals had been strictly limited based on English common-
law rules of privity, which were based on contract and
terminated upon completion of the improvements. Id. at 1231.
In the early Twentieth Century, courts began to abolish the
privity requirement. Id. Another change was the adoption of
the discovery rule of accrual in numerous jurisdictions. Bain,
Determining the Preemptive Effect of Federal Law on State
Statutes of Repose, 43 U. Balt. L. Rev. 119, 126 (2014). As a
result, statutes of repose were adopted in forty-seven States
and the District of Columbia. Daugherty & Flora, supra at 1231-
1232.
 9

upheld G. L. c. 260, § 2B, over a constitutional challenge, even

though it abolishes a plaintiff's cause of action without

providing any alternative remedy. Klein, supra at 709-713.

Since deciding Klein, we have consistently enforced

statutes of repose according to their plain terms, despite the

hardship they may impose on plaintiffs. "Unlike statutes of

limitation, statutes of repose cannot be 'tolled' for any

reason." Nett, 437 Mass. at 635. For example, although G. L.

c. 260, § 7, tolls any applicable statute of limitations until a

minor plaintiff reaches majority, it does not toll the statute

of repose. Tindol v. Boston Hous. Auth., 396 Mass. 515, 517-518

(1986). The statute of repose eliminates a plaintiff's cause of

action even in cases of fraudulent concealment. Sullivan v.

Iantosca, 409 Mass. 796, 798 (1991). See Joslyn v. Chang, 445

Mass. 344, 350-351 (2005) (statute of repose for medical

malpractice, G. L. c. 260, § 4, not subject to equitable

estoppel or tolling due to fraudulent concealment). In

addition, the statute of repose is not subject to the "relation

back" concept that permits adding a defendant by amending the

complaint after the expiration of the repose period. Tindol,

supra at 518-519. "Simply put, after six years, [G. L. c. 260,

§ 2B,] completely eliminates a cause of action against certain

persons in the construction industry." Klein, 386 Mass. at 702.
 10

Where a claim does not obviously sound in tort, we have

examined the nature of the underlying action to determine

whether a statute of repose applies. See Anthony's Pier Four,

Inc. v Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 823 (1986)

(court must look to "gist of the action" to determine whether

claim is based in contract or tort [citation omitted]);

McDonough v. Marr Scaffolding Co., 412 Mass. 636, 639 (1992)

(breach of warranty claims that sound in tort, not contract, are

barred by statute of repose); Dighton v. Federal Pac. Elec. Co.,

399 Mass. 687, 691 n.6, cert. denied, 484 U.S. 953 (1987) (claim

for breach of warranty states cause of action which sounds, like

negligence, in tort and not in contract); Klein, 386 Mass. at

719 (warranty claim alleged only that defendant promised to

"exercise [the] standard of reasonable care required of members

of his profession" therefore negligence and warranty claims

essentially alleged same elements); Coca-Cola Bottling Co. of

Cape Cod v. Weston & Sampson Eng'rs, Inc., 45 Mass. App. Ct.

120, 124 (1998) (statute of repose applies where implied

warranty claim based in tort).

Bridgwood argues, relying on Kattar v. Demoulas, 433 Mass.

1 (2000), that because the relief available under G. L. c. 93A

is "sui generis," neither wholly tortious nor wholly contractual

in nature, the statute of repose does not apply. Id. at 17,

quoting Greenfield Country Estates Tenants Ass'n, Inc. v. Deep,
 11

423 Mass. 81, 88 (1996). Bridgwood also argues that a violation

of G. L. c. 142A, § 17 (10), constitutes a per se violation of

G. L. c. 93A and, as such, it is not precluded by the statue of

repose. Thus, according to Bridgwood, we need not be concerned

with whether the underlying action sounds in tort because G. L.

c. 93A takes us out of that orbit.

The language relied on by Bridgwood from Kattar, a case

which did not concern the statute of repose, does not prevent a

court from looking to the substance of the action to determine

whether it sounds in tort. Stated another way, it does not

permit a plaintiff to avoid the statute of repose by relabeling

what is essentially a tort claim as a claim under G. L. c. 93A.

Cf. Anthony's Pier Four, Inc., 396 Mass. at 823, quoting

Hendrickson v. Sears, 365 Mass. 63, 85 (1974) ("A plaintiff may

not . . . escape the consequences of a statute of repose . . .

on tort actions merely by labelling the claim as contractual.

The court must look to the 'gist of the action'").

Recognizing that G. L. c. 260, § 2B, applies only to

actions in tort, the motion judge analogized the claim to an

action for an alleged breach of implied warranty. Although an

untimely action for breach of an implied warranty is barred

where the "breach of warranty claims essentially allege the same

elements as the negligence claims," McDonough, 412 Mass. at 642,

this is not the case with an action for breach of an express
 12

warranty, which is an action in contract. Anthony's Pier Four,

Inc., 396 Mass. at 822. In determining whether a given case is

an action in tort governed by the statute of repose, we "look to

the 'gist of the action.'" Id. at 823, quoting Hendrickson, 365

Mass. at 85. 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." Anthony's Pier Four, Inc., supra at 822,

citing W.L. Prosser & W.P. Keeton, Torts § 92, at 656, 657 (5th

ed. 1984). Because a claim for breach of express warranty,

unlike a negligence claim, requires a plaintiff to prove "that

the defendant promised a specific result," we held that § 2B did

not apply to such a claim. Anthony's Pier Four, Inc., supra at

823.

Similarly, there are a number of Appeals Court cases where

a plaintiff has alleged that a contractor has violated G. L.

c. 93A, that use "gist of the action" to determine whether the

statute of repose applies. For example, in Kelley v. Iantosca,

78 Mass. App. Ct. 147 (2010), the Appeals Court held that, to

the extent the plaintiff alleged that the defendants violated

G. L. c. 93A through their acts and omissions during the

construction of his house, the claim was barred by the statute

of repose, for "those allegations are sufficiently tort-like to
 13

bring them within the statute's ambit."6 Id. at 154, citing

Beaconsfield Townhouse Condominium Trust v. Zussman, 49 Mass.

App. Ct. 757, 761 n.12 (2000). See Fine v. Huygens, DiMella,

Shaffer & Assocs., 57 Mass. App. Ct. 397, 404 (2003) (statute of

repose applies to G. L. c. 93A claims that are "tort-like in

nature"); Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796,

802-803 (2002), quoting McDonough, 412 Mass. at 642 ("[A]ctions

for breach of implied warranty are also barred . . . when the

warranty claims 'essentially allege the same elements as the

negligence claims'").

Applying these principles here, we conclude that

Bridgwood's claim is likewise barred by the statute of repose.

Bridgwood's claim is essentially that the defendants failed to

perform the electrical work in compliance with the standards set

forth in G. L. c. 142A, § 17 (10). It is indistinguishable from

a claim of negligence. Therefore, it sounds in tort and, having

been commenced well beyond the six-year deadline, is barred by

6 Bridgwood's G. L. c. 93A claims arising out of the
defendants' alleged misrepresentations, however, are not barred.
Kelley v. Iantosca, 78 Mass. App. Ct. 147, 154-155 (2010),
discussing Sullivan v. Iantosca, 409 Mass. 796, 799-800 (1991).
"'Section 2B [of G. L. c. 260] grants protection to designers,
planners, builders, and the like. . . . It does not do so for
people who sell real estate.' . . . Thus, while G. L. c. 260,
§ 2B, bars any claim arising out of what [the defendants] did
when they built the house, it does not bar claims under G. L.
c. 93A arising out of misrepresentations they made about what
they did." Kelley, supra at 154-155, quoting Sullivan, supra at
799.
 14

G. L. c. 260, § 2B. Were we to hold otherwise, no contractor

would ever be able to "put a project to rest."

We also have followed this analytic framework when

determining whether G. L. c. 228, § 1, which states that a tort

survives a plaintiff's death, applied to claims presented under

G. L. c. 93A. In Klairmont v. Gainsboro Restaurant, Inc., 465

Mass. 165, 178-179 (2013), we concluded that a G. L. c. 93A

claim survived the plaintiff's death because it was, in

substance, an action in tort. Thus, even though G. L. c. 93A is

not referenced in G. L. c. 228, § 1, the statute applied to the

plaintiff's claim and the estate could continue the action.

It is not apparent that, by enacting G. L. c. 142A, § 17,7

and making the building laws enforceable through G. L. c. 93A,

the Legislature intended to deprive contractors of the

protection of the statute of repose. General Laws c. 260, § 2B,

the statute of repose applicable to building professionals, was

enacted by the Legislature in 1968 and amended in 1973 and 1984.

See St. 1968, c. 612; St. 1973, c. 777, § 2; St. 1984, c. 484,

§ 53. As recently as 2018, the Legislature had proposed

amendments to the statute to specifically include condominiums.8

7 General Laws c. 142A, § 17, was enacted in 1991, and
amended in 1998 and 2009. See St. 1991, c. 453; St. 1998,
c. 161, § 507; St. 2009, c. 4, §§ 20, 21.

8 In Commonwealth v. Owens-Corning Fiberglas Corp., 38 Mass.
App. Ct. 600, 601 (1995), the Appeals Court held that the
 15

See 2018 House Doc. No. 4236. The consumer protection act,

G. L. c. 93A, was passed by the Legislature in 1967, see

St. 1967, c. 813, § 1, and various sections have been amended

throughout the years. Section 2 was last amended in 1978. See

St. 1978, c. 459, § 2. Section 9 was amended in 1970, 1971,

1973, 1978, 1979 (twice), 1986, 1987, 1989, and 2004. See

St. 1970, c. 736, §§ 1, 2; St. 1971, c. 241; St. 1973, c. 939;

St. 1978, c. 478, §§ 45, 46; St. 1979, c. 72, § 1; St. 1979,

c. 406, §§ 1, 2; St. 1986, c. 557, § 90; St. 1987, c. 664, § 3;

St. 1989, c. 580, § 1; St. 2004, c. 252, § 1.

As we have already discussed, G. L. c. 260, § 2B, was

enacted to shield contractors from the burden of liability

asbestos revival statute, which established time periods during
which the Commonwealth and its subdivisions could bring actions
which would otherwise be time barred by the statute of repose,
revived claims against installers of asbestos notwithstanding
that the revival statute did not mention the statute of repose.
The court reasoned that the phrase is "[s]o foreign to
legislative usage" that the Legislature is not expected "to use
it or refer to it when enacting [statutes] specially designed to
breathe new life . . . into liability that would otherwise have
been extinguished by passage of time." Id. at 603. The court
noted that "[i]t is also worth bearing in mind that the
Commonwealth is not bound by a statute of limitations unless it
expressly consents to be bound by such a statute. Id., citing
United States v. Commissioner of Banks, 254 Mass. 173, 176
(1925), and Boston v. Nielsen, 305 Mass. 429, 430 (1940). The
statutory expression of that principle appears in G. L. c. 260,
§ 18, which provides that "[t]he limitations of the preceding
sections of this chapter . . . shall apply to actions brought by
or for the [C]ommonwealth." In thus making itself subject to
the bars of c. 260, the consent section does not distinguish
between the conventional statutes of limitations that appear in
other sections of c. 260 and the statute of repose, which
appears in § 2B.
 16

throughout their careers and into retirement for work that had

long since been completed. "There 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.'" Klein, 386 Mass. at 709, quoting Rosenberg, 61

N.J. at 201. Had the Legislature intended to remove this shield

and expose contractors to indefinite liability for claims

arising long after the completion of their work, it would have

said so explicitly.9

Conclusion. In sum, Bridgwood's G. L. c. 93A claim is

sufficiently tort-like to bring it within the ambit of the

statute of repose. Because this action was commenced more than

six years after the work was completed, it is barred by G. L.

c. 260, § 2B, and the complaint was properly dismissed.

9 If the Legislature desires to narrow the applicability of
the repose period -- for instance, by amending G. L. c. 260,
§ 2B, to state that it does not apply to construction claims
brought under G. L. c. 142A, § 17 (10), or G. L. c. 93A -- it
may do so. Such is the province of the Legislature, not the
courts. We decline to hold that the § 2B statute of repose has
been superseded "in the absence of express words to that
effect." Registrar of Motor Vehicles v. Board of Appeal on
Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981).
Likewise, "[i]mplied repeal of a statute is disfavored," and we
avoid doing so "unless [that statute] 'is so repugnant to, and
inconsistent with, the later enactment that both cannot stand.'"
Commonwealth v. Harris, 443 Mass. 714, 725 (2005), quoting
LaBranche v. A.J. Lane & Co., 404 Mass. 725, 728 (1989). This
is not the case with the statutes at issue.
 17

Judgment affirmed.
 GANTS, C.J. (dissenting, with whom Lenk and Budd, JJ.,

join). General Laws c. 260, § 5A, provides that "[a]ctions

arising on account of violations of any law intended for the

protection of consumers, including but not limited to . . .

[G. L. c. 93A (c. 93A)] . . . whether for damages, penalties or

other relief and brought by any person, including the attorney

general shall be commenced only within four years next after the

cause of action accrues." Section 5A is solely a statute of

limitations -- it contains no statute of repose. In contrast,

G. L. c. 260, § 2B, which 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," and G. L. c. 260, § 4, which

governs actions "of contract or tort for malpractice" against

physicians, contain both a statute of limitations and a statute

of repose. Because a statute of repose is, after all, a

creature of statute and not of the common law, and because the

Legislature did not choose in G. L. c. 260, § 5A, to bar

consumers through a statute of repose from bringing c. 93A

claims that are timely under the statute of limitations, I

dissent.

A statute of limitations limits the time in which a

plaintiff may bring an action "after the cause of action

accrues." See G. L. c. 260, §§ 2B, 5A. A cause of action does
 2

not accrue until a plaintiff "knows or reasonably should know

that he or she has suffered harm and that the harm was caused by

the [defendant's] conduct." Parr v. Rosenthal, 475 Mass. 368,

378 (2016). Consequently, the statute of limitations clock does

not begin to run until a plaintiff knows, or should know, that

he or she has suffered an injury arising from the defendant's

conduct. See id. See also Hendrickson v. Sears, 365 Mass. 83,

91 (1974). If that knowledge is delayed because the defendant

has fraudulently concealed the injury, or otherwise misled the

plaintiff regarding the cause of his or her injury, the clock is

tolled until the plaintiff is put on reasonable notice of the

defendant's responsibility for his or her injury. See Hays v.

Ellrich, 471 Mass. 592, 603, cert. denied, 136 S. Ct. 503

(2015). The statute of limitations for actions of tort for

damages arising out of any negligence in the design, planning,

improvement, or construction of real property is three years.

See G. L. c. 260, § 2B. The statute of limitations for actions

arising from a violation of a law intended for the protection of

consumers, including c. 93A, is four years. See G. L. c. 260,

§ 5A. Where the same conduct constitutes both a common-law tort

under G. L. c. 260, § 2B, and a violation of a consumer law such

as c. 93A under G. L. c. 260, § 5A, the plaintiff is entitled to

the four-year statute of limitations under § 5A, regarding the

cause of action arising from the violation of c. 93A. See
 3

Passatempo v. McMenimen, 461 Mass. 279, 297 (2012) ("the mere

fact that the G. L. c. 93A violations alleged would also support

a common-law tort claim does not make them subject to the

shorter, three-year limitation period"). See also Fine v.

Huygens, DiMella, Shaffer & Assocs., 57 Mass. App. Ct. 397, 404-

405 (2003) ("We reject the contention that a c. 93A claim

necessarily fails because the underlying claim upon which it

depends has been dismissed as not timely filed. . . . The

c. 93A claim need only be dismissed if, under c. 93A's four-year

limitations period . . . , it was not timely filed" [citation

omitted]).

Under a statute of repose, however, the repose clock starts

to run, not at the time the cause of action accrues, but at a

time established by statute. For common-law tort actions under

G. L. c. 260, § 2B, the clock starts to run from the earlier of

the date of "the opening of the improvement to use" or the date

the owner takes possession of the improvement for occupancy

after its "substantial completion." Consequently, under G. L.

c. 260, § 2B, even if the limitations clock has yet to accrue

because the injury from a contractor's misconduct is not yet

apparent, or because the contractor has concealed the misconduct

from the property owner, the property owner is barred from

bringing any tort claim after the six-year statute of repose

period. See Sullivan v. Iantosca, 409 Mass. 796, 798 (1991)
 4

("Section 2B, in its statute of repose aspect, forbids us from

considering the fact that a plaintiff did not discover or

reasonably could not have discovered the harm before the six-

year period of the statute of repose expired," and "[w]e

similarly reject the plaintiff's claim that the fraudulent

concealment provisions of G. L. c. 260, § 12 . . . [and any

common law estoppel] prevent [the statute of repose in G. L.

c. 260, § 2B,] from applying here" [citations omitted]). In

short, as is alleged in this case, the property owner may be

barred by the statute of repose from bringing a claim before he

or she knows, or reasonably should know, that he or she even has

a claim -- even where the defendant has fraudulently concealed

the claim from the plaintiff. Consequently, a statute of repose

reflects a legislative decision that it is more important to

protect certain defendants from old claims than it is to protect

the right of plaintiffs to enforce otherwise valid and timely

claims.

The statute of repose was added to G. L. c. 260, § 2B, in

1968. See St. 1968, c. 612. At that time, it could not have

been intended to cover claims under c. 93A, because there was no

private right of action for consumers under c. 93A, § 9, until

1969. See St. 1969, c. 690.

General Laws, c. 260, § 5A, which established a four-year

statute of limitations for actions claiming a violation of
 5

c. 93A, was enacted in 1975. See St. 1975, c. 432, § 2. By

1975, it was well established that new home construction claims

may fall within the rubric of G. L. c. 93A, § 9, because in

1971, § 9 was amended to protect any person injured through an

unfair or deceptive act or practice who "purchases or leases

goods, services or property, real or personal" (emphasis added).

See St. 1971, c. 241, amending St. 1970, c. 736, § 1.1 This

revision of § 9 was meant specifically to extend the scope of

c. 93A private causes of action to the sale of real estate,

which is made apparent by the act's title: "An Act extending

certain equitable remedies under the consumer protection law to

certain aggrieved persons who purchased real estate for personal

or family use." See St. 1971, c. 241. At the time, then

Governor Francis W. Sargent submitted official remarks, stating

that the "bill will help answer complaints of those who have

been victimized by the few fly-by-night builders who try to

leave expensive corrective repairs to the hapless new

homeowner." See 1971 House Doc. No. 5221. Even though c. 93A

1 The language of G. L. c. 93A, § 9, has since been amended,
and now § 9 affords a remedy to "[a]ny person . . . who has been
injured by another person's use or employment of any method, act
or practice declared to be unlawful by section two or any rule
or regulation issued thereunder . . . ." See St. 1979, c. 406,
§ 1. This amendment broadens even further the protection
afforded to persons injured through an unfair or deceptive act
or practice, insofar as § 9 "may no longer contain limits based
on the nature of the transaction." Murphy v. Charlestown Sav.
Bank, 380 Mass. 738, 743 (1980). See id. at 743 n.7.
 6

claims were recognized as potentially including actions alleging

deficiency or neglect in the design and construction of new

homes, no statute of repose was included in G. L. c. 260, § 5A,

to protect those responsible for the design or construction of

defective homes.

In 1991, the Legislature enacted G. L. c. 142A. See St.

1991, c. 453. Section 17 protects consumers from unsavory

contractors and subcontractors by identifying seventeen types of

prohibited acts by contractors and subcontractors, including

violating the building laws of the Commonwealth or of any

political subdivision, and sets forth three separate and

distinct avenues to enforce these prohibitions. See G. L.

c. 142A, § 17. First, the statute provides that any violation

of § 17 "shall constitute an unfair or deceptive act under the

provisions of [c. 93A]," and thus creates a private right of

action under c. 93A, § 9, for such violations. See G. L.

c. 142A, § 17. Second, the statute provides that "[v]iolations

of this section shall subject the violator to the administrative

sanctions of [G. L. c. 142A, § 18]," which include revocation or

suspension of the contractor's or subcontractor's certificate of

registration, and administrative penalties of up to $2,000 for

each violation. See G. L. c. 142A, §§ 17, 18. Third, the

statute provides that "[v]iolations of this section shall

subject the violator to . . . criminal prosecution as prescribed
 7

in [G. L. c. 142A, § 19]," which authorizes the Attorney General

or any district attorney to prosecute any person who knowingly

and wilfully violates any provision of § 17 and, unless another

statute provides for a greater penalty, subjects the violator

upon conviction to imprisonment of up to one year or a fine of

up to $2,000, or both, in addition to any administrative

penalty. See G. L. c. 142A, §§ 17, 19.

There is no reason to believe that the Legislature intended

to limit the private right of action to remedy violations of

G. L. c. 142A, § 17, through civil actions under c. 93A by

imposing a statute of repose. Not only did the Legislature fail

to include any statute of repose in G. L. c. 260, § 5A, but it

deemed the conduct in G. L. c. 142A, § 17, so serious that it

provided three separate and distinct means to enforce any

violation, including criminal prosecution. Why would the

Legislature seek to protect those who engaged in such unfair and

deceptive acts from c. 93A actions brought within the statute of

limitations by granting them a statute of repose that could

potentially shield such violations from any private cause of

action by injured consumers? And why would the Legislature

provide an incentive to those who engage in such unfair and

deceptive acts to conceal those acts from the consumer until six

years have passed, so that the statute of repose could thwart a
 8

consumer from obtaining a remedy for his or her injury under

c. 93A?

The court's opinion appears to rest on four Appeals Court

opinions for its conclusion that we look "to the gist of the

action to determine whether the statute of repose applies."

Ante at . But a closer look at these cases demonstrates that

they offer scant support for this conclusion. In the earliest

of the four cases, Beaconsfield Townhouse Condominium Trust v.

Zussman, 49 Mass. App. Ct. 757 (2000), the Appeals Court ordered

all the claims, including the c. 93A claim, dismissed not

because of the statute of repose, but because of the statute of

limitations. See id. at 757 ("We decide that the grounds for

the causes of action against the defendants were knowable by the

trust as early as February, 1978, and were barred by the

applicable statutes of limitations by the time the complaint was

filed in 1986 against the residual defendants. Accordingly, we

reverse the judgment"). Although the Appeals Court declared

that all the claims against the relevant defendants, including

the c. 93A claims, were "in the nature of tort" in that they all

relied on alleged misrepresentations regarding the quality of

the roof that was delivered, the court recognized that the c.

93A claims were subject to the four-year statute of limitations

under G. L. c. 260, § 5A, not the three-year statute of
 9

limitations under G. L. c. 260, § 2B. See id. at 760-761 &

n.12. The term "repose" was never used in the opinion.

In the second opinion, Rosario v. M.D. Knowlton Co., 54

Mass. App. Ct. 796, 797 (2002), the plaintiff was injured by a

hydraulic lift that had been installed a decade earlier in a

manufacturing facility, and brought claims against the

manufacturer and distributor of the hydraulic lift alleging

negligence, breach of the express and implied warranty, and

unfair or deceptive acts or practices, in violation of c. 93A.

The motion judge granted summary judgment for the defendants on

all claims, finding that the claims were barred under the

statute of repose because the lift was "an improvement to real

property" and, therefore, the claims were governed by the

statute of repose in G. L. c. 260, § 2B. See id. at 797, 800.

The issues on appeal were whether the lift (which was

permanently installed at the manufacturing facility) constituted

"an improvement to real property," and whether the defendants

were "protected actors" under § 2B. See id. at 799-800. The

Appeals Court ruled that the lift was an improvement to real

property, and that the defendants were protected actors,

accordingly affirming the grant of summary judgment. See id. at

800-802. There is no indication from the opinion that the

plaintiff challenged the application of the statute of repose in

G. L. c. 260, § 2B, to his c. 93A claim. As a result, all that
 10

the Appeals Court said as to that claim was that the plaintiff's

"c. 93A count is premised on claims dismissed on summary

judgment. This count falls with them." Id. at 803.

In the third opinion, Fine, 57 Mass. App. Ct. at 404, the

Appeals Court determined that each of the c. 93A claims was

based on an alleged breach of the implied warranty of

merchantability, and were therefore "tort-like in nature." But

the Appeals Court nonetheless declared that the claims asserting

unfair and deceptive trade practices under c. 93A were governed

by the four-year statute of limitations period in § 5A, not the

three-year limitations period for torts, and expressly rejected

"the contention that a c. 93A claim necessarily fails because

the underlying claim upon which it depends has been dismissed as

not timely filed." Id. at 404-405. The court provided no

explanation as to why it determined that the statute of repose

in G. L. c. 260, § 2B, applied to claims under c. 93A that are

"tort-like in nature," when the statute of limitations in G. L.

c. 260, § 5A, not the limitations period in G. L. c. 260, § 2B,

applied to these same claims. See id. at 404.

The fourth opinion, Kelley v. Iantosca, 78 Mass. App. Ct.

147 (2010), cites both Beaconsfield Townhouse Condominium Trust

and Fine for its conclusory declaration that the c. 93A "claim

is barred by the statute of repose, for although focusing on

c. 93A, those allegations are sufficiently tort-like to bring
 11

them within [G. L. c. 260, § 2B's] ambit." Kelley, supra at

154.2

These cases have led the court to conclude that, if a

c. 93A claim is "tort-like" in nature, the statute of repose in

§ 2B applies. But we only look to the nature of the underlying

claim where the claim arises under the common law. Thus, where

a plaintiff frames what is essentially a common-law claim

sounding in tort as a contract claim in an attempt to obtain the

benefit of the six-year statute of limitations under G. L.

c. 260, § 2 -- rather than the three-year statute of limitations

under G. L. c. 260, § 2A (for actions in tort or contract to

recover for personal injuries, and actions in replevin) or § 2B

-- we "look to the 'gist of the action'" and apply the three-

year statute of limitations applicable to torts. See Anthony's

The court's opinion also looks for support from Klairmont
2

v. Gainsboro Rest., Inc., 465 Mass. 165, 178-179 (2013), where
we held that a c. 93A claim survived the death of the plaintiff
under the Massachusetts survival statute, G. L. c. 228, § 1.
Section 1 makes no reference to c. 93A claims, but did provide
for the survival of "'[a]ctions of tort for . . . other damage
to the person." Klairmont, supra at 179. We held that the
c. 93A claim, which rested on persistent and knowing violations
of the building code that created hazardous conditions in a bar
and restaurant, "is substantively akin to the types of torts
within the scope of G. L. c. 228, § 1, and that, therefore, the
claim survives." Id. In Klairmont, we interpreted a statute
(G. L. c. 228, § 1) that we described as "flexible" and
"dynamic," see id., quoting Harrison v. Loyal Protective Life
Ins. Co., 379 Mass. 212, 215 (1979), to permit the survival of a
c. 93A claim after the death of the plaintiff. Our ruling in
that case does not provide support for this court's attempt to
deprive the plaintiff of her ability to bring a c. 93A claim
that is timely under the statute of limitations.
 12

Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass.

818, 823 (1986), quoting Hendrickson, 365 Mass. at 85 ("A

plaintiff may not . . . escape the consequences of a statute of

repose or statute of limitations on tort actions merely by

labelling the claim as contractual. The court must look to the

'gist of the action'"). But where the underlying claim is a

"tort-like" statutory claim brought under c. 93A, our case law

makes clear that we apply the four-year statute of limitations

specified in G. L. c. 260, § 5A, see supra, not the three-year

statute of limitations in G. L. c. 260, § 2A or 2B. See

Passatempo, 461 Mass. at 297; Beaconsfield Townhouse Condominium

Trust, 49 Mass. App. Ct. at 761. In doing so, we not only

respect the statutory mandate in G. L. c. 260, § 5A, but also

recognize that a c. 93A claim "is neither wholly tortious nor

wholly contractual in nature, and is not subject to the

traditional limitations of preexisting causes of action."

Kattar v. Demoulas, 433 Mass. 1, 12 (2000), quoting Slaney v.

Westwood Auto, Inc., 366 Mass. 688, 704 (1975).

In addition, where we apply the statute of limitations in

G. L. c. 260, § 2B, we also apply the statute of repose in § 2B.

See Kelley, 78 Mass. App. Ct. at 150; Fine, 57 Mass. App. Ct. at

401-404. It does not make sense to exempt c. 93A claims from

the statute of limitations in § 2B and yet still subject such

claims to the statute of repose in § 2B. Where the Legislature
 13

did not choose to include a statute of repose under G. L.

c. 260, § 5A, to shield those who engaged in unfair and

deceptive acts in violation of c. 93A from six-year old claims

that are timely brought under the statute of limitations, it is

not the appropriate role of this court to do it ourselves.

Because this opinion, in effect, adds a statute of repose to

G. L. c. 260, § 5A, for c. 93A claims to protect contractors and

subcontractors from liability for unfair and deceptive acts that

arise out of deficiency or neglect in their design, planning, or

construction, and because this is a usurpation of a distinctly

legislative prerogative, I dissent.