MASSACHUSETTS CONSTRUCTION CLAIMS RESOURCES
- 1 Construction Claims
- 2 Construction Damages
- 3 Coverage Trigger of Coverage
Construction Claims
Limitations & Repose Periods
Statute of Repose
No action for defects in the design or construction of an improvement to real property may be commenced more than six (6) 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 possession for occupancy by the owner. G.L. c. 260, § 2B.
Statutes of Limitations
- Breach of Contract: Massachusetts imposes a six (6) year limitations period on breach of contract actions. M.G.L. c. 260, § 2.
- Tort: Massachusetts imposes a three (3) year limitations period on tort claims. M.G.L. c. 260, § 2A.
- Negligence in Construction: Massachusetts imposes a three (3) year limitations period on negligence claims arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property, other than that of a public agency. M.G.L. c. 260, § 2B.
- Consumer Protection/Fraud Statute: Consumer protection actions, including actions under G.L. c. 93A, must be brought within four years of accrual. G.L. c. 260, § 5A.
Right to Repair Laws and/or Pre-Suit Statutory Procedures
There is no right to repair in Massachusetts.
Indemnity and Contribution
Massachusetts permits parties to enter into broad-range indemnification provisions, even allowing indemnification where the indemnitee is concurrently or solely negligent, even where the indemnification clause at issue does not specifically encompass such behavior. See Speers v. H.P. Hood, Inc., 22 Mass.App.Ct. 598, 600 (1986).
Exception to General Rule: In public construction projects, an indemnification provision which requires a subcontractor to indemnify any party for injury to persons or damages to property not caused by the subcontractor or its employees, agents or subcontractors, shall be void. M.G.L. c. 149, § 29C.
Interpretation: Indemnification provisions are to be interpreted like any other contract, with attention to language, background, and purpose. Further, they are to be read without any bias for the indemnitor or against the indemnitee. See Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 784 (1996).
Certificate of Merit – Experts
Massachusetts law does not require the filing of a certificate of merit for a claim against a construction or design professional.
Economic Loss Doctrine
Purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage. See FMR Corp v. Boston Edison Co., 415 Mass. 393, 395 (1993).
Include: damages for inadequate value, costs of repairs and replacement, or consequent loss of profits without any claim of personal injury or damage to other property. See Marcil v. John Deere Indus. Equip. Co., 9 Mass. App. Ct. 625, 630 n.3 (1980).
Contractor Licensing Requirements
http://www.mass.gov/eopss/consumer-prot-and-bus-lic/license-type/csl/construction-supervisor-license.htmlCommon Law & Statutory Claims
NA
Construction Damages
Cost of Repair
When diminution or market value is unavailable or unsatisfactory as a measure of damages, “replacement or restoration costs have also been allowed.” Wyman v. Ayer Properties, LLC, 469 Mass. 64 (2014). “The cost of repairs may be valued as of the time of trial, rather than as of the time of breach, and current cost of repair estimates are evidence of the extent of earlier damage.” Berish v. Bornstein, 2006 Mass. Super. LEXIS 330
Diminution in Value
In Massachusetts, “[t]he general rule for determining property damage is diminution in market value.” Wyman v. Ayer Properties, LLC, 469 Mass. 64 (2014) (citing Hopkins v. American Pneumatic Serv. Co., 194 Mass. 582 (1907)).
Punitive Damages
Punitive damages are prohibited in Massachusetts, except where specifically authorized by statute.
Attorney’s Fees
Massachusetts follows the “American Rule,” whereby the litigant bears his/her own expenses. “[A] prevailing party can recover attorneys fees only if payment of the fees is permitted by statute or court rule or agreed to by the parties by stipulation or contract.” Mustapha v. Daimler Chrysler Co., 2008 Mass. Super. LEXIS 45 (citing Waldman v. American Honda Motor Co., 413 Mass. 320 (1992)).
Joint and Several Liability (specific to construction)
Pure Joint and Several Liability
Cost Incurred to Access Repair Areas
NA
Consequential Damages
Massachusetts courts will enforce waivers of consequential damages via “[s]o-called ‘flow down’ clauses, pursuant to which the contractor's obligations ‘flow down’ to the subcontractor.’” Costa v. Brait Builders Corp., 463 Mass. 65 (2012).
Coverage Trigger of Coverage
Definition of an Occurrence
An “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful condition.” The term “accident” is to be broadly construed in a policy insuring against damage by accident. Beacon Textiles Corp. v. Employers Mut. Liability Ins. Co. of Wis., 355 Mass 643, 645 (1969).
Duty to Defend
Contractual Indemnity
Indemnification clauses are generally valid and enforceable, “even where the indemnitee is found to be ‘concurrently’ negligent and where the indemnitor is free from any negligence.” Kelly v. Dimeo, Inc., 31 Mass. App. Ct. 626 (1991) (citing Whittle v. Pagani Bros. Constr. Co., 383 Mass. App. Ct. 77 (1989))]].
Anti-Indemnity Statutes
“Any provision in a contract for construction reconstruction [or] alteration on any building or structure…or any real property…which requires a subcontractor to indemnify any party for injury or damage to property not caused by the subcontractor or its employees, agents, or sub-contractors, shall be void.” Brown v. Koch Membrane Systems, 2001 Mass. App. Div. 210 LEXIS 90 (citing M.G.L. c. 149, § 29C).
Additional Insureds
1. Coverage for AI’s own negligence vs. vicarious liability for Named Insured
“Any provision in a contract for construction reconstruction [or] alteration on any building or structure…or any real property…which requires a subcontractor to indemnify any party for injury or damage to property not caused by the subcontractor or its employees, agents, or sub-contractors, shall be void.” Brown v. Koch Membrane Systems, 2001 Mass. App. Div. 210 LEXIS 90 (citing M.G.L. c. 149, § 29C).
2. Determining Primary and Non-Contributory vs. Excess Position
NA
3. AI carrier’s rights to reimbursement for defense expenses from other, co-primary carriers
NA
Insureds Right to Independent Counsel and Consequences of Rejecting a Defense
“When a liability insurer seeks to defend its insured under a reservation of rights, and the insured is unwilling that the insurer do so, the insured may require the insurer either to relinquish its reservation of rights or relinquish its defense of the insured and reimburse the insured for its defense costs.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 788 N.E.2d 522, 539 (Mass. 2003).
Coverage Defenses
The insurer bears the burden of proving that an insured’s claim falls within an exclusion. Driscoll v. Providence Mut. Fire Ins. Co., 69 Mass. App. Ct. 341 (2007). “Any ambiguities in the language of an insurance contract are interpreted against the insurer who used them and in favor of the insured." Boston Gas Co. v. Century Indem. Co., 454 Mass. 337 (2009).
Choice of Law (Forum Selection Clauses)
Forum selection clauses are both valid and enforceable in Massachusetts, except where it is shown that enforcement would be unreasonable. Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 572 (1995).
Targeted Tenders
In a recent decision, Ins. Co. of the State of Penn. v. Great Northern Ins. Co., 473 Mass. 745 (Mar. 7, 2016), Massachusetts confirmed that it recognizes the equitable contribution doctrine and held that selective tender as an exception to that doctrine would burden the Massachusetts Insurers Insolvency Fund.
Consent Judgments
NA