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14-P-653 Appeals Court

KARL NURSE vs. OMEGA US INSURANCE, INC. 

No. 14-P-653.

Suffolk. January 13, 2015. - October 5, 2015.

Present: Trainor, Vuono, & Hanlon, JJ.

Insurance, Coverage, Water damage. Contract, Insurance.

Limitations, Statute of. Practice, Civil, Summary 

judgment, Declaratory proceeding, Statute of limitations, 

Commencement of action.

Civil action commenced in the Superior Court Department on 

December 28, 2011. 

The case was heard by Edward P. Leibensperger, J., on a 

motion for summary judgment.

James M. Dunn for the plaintiff.

Thomas M. Prokop for the defendant.

VUONO, J. This case arises from the denial of coverage by 

the defendant, Omega US Insurance, Inc. (Omega1), for water 

damage to a multi-unit residence owned by the plaintiff, Karl 

Nurse. The damage is alleged to have been caused by a burst 

 

1 Omega's successor-in-interest is Canopius US Insurance, 

Inc. We use the name Omega as did the judge and the parties. 
2

pipe which resulted from frigid weather. A judge of the 

Superior Court granted summary judgment in favor of Omega on the 

ground that Nurse's action for declaratory relief and breach of 

contract was barred by the two-year statute of limitations set 

forth in G. L. c. 175, § 99, Twelfth (the statute or § 99), and 

incorporated as a provision of the policy.

2 While there is no 

dispute that Nurse did not commence this action within two years 

of the date the loss occurred, he contends that his complaint 

was nevertheless timely because the so-called "discovery rule"

applies to toll the statute of limitations period. We conclude 

that the discovery rule does not apply in these circumstances

and, therefore, summary judgment was proper.

Background. The material facts, in the light most 

favorable to Nurse, the nonmoving party, are as follows.

3 Nurse 

owns a three-unit residence (property or building) located at 

294 Shawmut Avenue in Boston. The property was insured under a 

dwelling policy issued by Omega for the period from April 27, 

 

2 The statute provides, in relevant part: 

"No suit or action against this company for the recovery of 

any claim by virtue of this policy shall be sustained in 

any court of law or equity in this Commonwealth unless 

commenced within two years from the time the loss occurred 

. . . ."

G. L. c. 175, § 99, Twelfth, as appearing in St. 1951, c. 478, 

§ 1. 

3 See Pinti v. Emigrant Mort. Co., 472 Mass. 226, 231 

(2015).
3

2009, to April 27, 2010. The policy was subject to the 

requirements of G. L. c. 175, § 99, Twelfth, which sets forth 

standard terms applicable to all fire insurance policies in the 

Commonwealth including a two-year statute of limitations for any 

claims covered by such policies.

4 

In December, 2009, the property was vacant except for

ongoing construction work in the third-floor unit, which 

required that the plumbing supplying water to that unit remain

active.

5 Both December 17 and December 18 were extremely cold 

days with high temperatures reported at Logan Airport of twentysix and twenty-eight degrees Fahrenheit, respectively. On 

December 19, 2009, which was also a cold day with a high 

temperature of thirty-two degrees, records from the Boston Water 

and Sewer Commission (commission) show that the rate of water 

usage at the property dramatically increased from fifteen cubic 

feet of water every six hours for the period between December 1 

 

4 The pertinent policy language states, "No action can be 

brought unless the policy provisions have been complied with and 

the action is started within two years after the date loss or 

damage occurs."

5 To operate the plumbing while the building was vacant, 

Nurse was obligated under the policy to ensure that the heating 

system was set to at least fifty-five degrees. Records of 

electricity use during the period in question established that 

the heating system was not operating. Nurse maintains, however, 

that he left an electric space heater in the front hallway of 

the building to maintain a minimum level of heating. These 

facts, while relevant to other defenses raised by Omega, have no 

bearing here.
4

and December 18, to approximately 260 cubic feet of water every 

six hours. This rate of water usage continued from December 19 

to December 28, 2009, and in excess of 8,000 cubic feet of water 

was released during that period. The damage for which Nurse 

seeks coverage occurred on December 19, 2009, the day on which 

the water usage first spiked.6 On December 28, 2009, the 

commission notified Nurse of the increased water usage; he went 

to the property that day, where he discovered substantial water 

damage to the building. He traced the damage to a leak under 

the sink in the third-floor unit, and he immediately shut off 

the water supply.7

Nurse subsequently filed a claim for coverage under the 

policy, which Omega denied on January 14, 2011, following a year 

of investigation. On December 28, 2011, Nurse brought this 

action, seeking a declaration that Omega provide coverage for 

 

6 Nurse claims to have entered the property on December 21, 

2009, and to have seen no water damage, but he only entered the 

front hallway and did not observe the third-floor unit where the 

leak occurred. In any event it is undisputed that the leak --

and damage -- occurred on December 19, 2009.

7 A subsequent investigation revealed that a soldered joint 

of a copper pipe supplying water to the kitchen sink in the 

third-floor unit had failed. There was no indication of rust, 

corrosion, or any other structural defect in the pipe or the 

joint. Nurse asserts that he found a sliding door on the deck

open and speculated that it had been left open by the 

contractor.
5

the damage to the property.

8 Omega filed a motion for summary 

judgment asserting, among other defenses, that Nurse's complaint 

was barred by application of the statute of limitations, as the 

loss occurred on December 19, 2009, and Nurse waited until 

December 28, 2011, more than two years later, to file suit.9 The 

judge agreed with Omega and concluded that Nurse's suit was time

barred. In reaching his conclusion, the judge explicitly 

rejected Nurse's argument that the discovery rule should apply 

to toll the statute of limitations in § 99. 

Discussion. Summary judgment is appropriate where there 

are no genuine issues of material fact, and the moving party is 

entitled to judgment as a matter of law. See Mass.R.Civ.P.

56(c), as amended, 436 Mass. 1404 (2002); Kourouvacilis v. 

General Motors Corp., 410 Mass. 706, 716 (1991). We review a 

decision to grant summary judgment de novo. See Ritter v. 

Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). 

 

8 The complaint also alleged that Nurse was entitled to 

recover damages because Omega (1) breached its contract by 

declining to pay damages and (2) engaged in unfair insurance 

practices.

9 The judge considered Nurse's failure to file his suit 

within the limitations period as dispositive, and therefore, the

judge did not reach Omega's additional arguments for summary 

judgment. These were that Nurse had failed to comply with a 

condition precedent (his obligation to use reasonable care to 

maintain heat at the property) and the so-called "freeze-up" 

exclusion contained in the policy. Given our conclusion, we 

likewise do not reach these issues.
6

As we have noted, neither party disputes that the water 

damage or "loss" occurred on December 19, 2009, that Nurse filed 

his complaint on December 28, 2011, or that the two-year statute 

of limitations applies.

10 Instead, Nurse urges us to reject the 

judge's rationale and apply a discovery rule to the commencement 

of the two-year limitations period provided by § 99 and the 

policy.

11 This raises the question whether the discovery rule 

applies in this context. 

A brief review of the history of the discovery rule is 

helpful to our discussion. As the judge explained in his order 

granting summary judgment in favor of Omega, in Massachusetts

the discovery rule operates to toll certain statutes of 

limitations for particular types of claims until the claimant 

discovers, or reasonably should have discovered, the damage. 

Felton v. Labor Relations Commn., 33 Mass. App. Ct. 926, 927 

(1992). The discovery rule was first adopted by the Supreme 

Judicial Court in Hendrickson v. Sears, 365 Mass. 83 (1974). In 

 

10 While our review is de novo, we agree with the judge's 

well-reasoned memorandum of decision. 

11 In addition to urging us to apply the discovery rule, 

Nurse also argues that the question whether he should have been 

aware of the water damage before December 28, 2009, the date he 

was notified by the commission of the increase in water usage, 

is one of fact that should be decided by a fact finder. See 

Silvestris v. Tantasqua Regional Sch. Dist., 446 Mass. 756, 766-

767 (2006). However, given our conclusion that the discovery 

rule does not apply, the date on which Nurse reasonably should 

have been aware of the damage is not relevant.
7

Hendrickson, the court applied the rule to a claim of legal 

malpractice and "held that, if an attorney's negligent title 

search overlooked an easement of record and the title defect 

was, in the circumstances, inherently unknowable by his clients, 

their cause of action against him did not accrue until they 

discovered or should reasonably have discovered the attorney's 

misrepresentation concerning the record title." Bowen v. Eli 

Lilly & Co., 408 Mass. 204, 206 (1990) (summarizing the holding

in Hendrickson v. Sears, supra). The rule was later applied to 

claims of fraudulent misrepresentation, see Friedman v. 

Jablonski, 371 Mass. 482, 485 (1976), and to medical malpractice 

actions, see Franklin v. Albert, 381 Mass. 611, 618-619 (1980). 

See also Harrington v. Costello, 467 Mass. 720, 724 (2014)

(relying on Friedman v. Jablonksi, supra). In each instance, 

the court was construing statutes that set forth limitations

periods that began when a cause of action "accrued." As the 

court noted in Bowen, it developed "a discovery rule for the 

purpose of determining when a cause of action accrues." Bowen

v. Eli Lilly & Co., 408 Mass. at 205. In this case we are not 

construing language pertaining to when a cause of action 

"accrues." 

We see no basis for extending the discovery rule to 

insurance cases governed by § 99. Unlike the situations where 

the discovery rule was initially applied, such as Hendrickson v. 
8

Sears, supra, the damage here was not "inherently unknowable." 

Also, neither party has provided us with a case directly on 

point, nor have we found one.12 However, J. & T. Enterprises, 

Inc. v. Liberty Mut. Ins. Co., 384 Mass. 586 (1981), is 

instructive. In that case, the Supreme Judicial Court held that 

the two-year statute of limitations set forth in § 99 barred an 

action on a fire insurance policy commenced more than two years 

after a fire occurred at the insured property (a restaurant)

even though it was unclear when the plaintiff, a mortgagee of 

the property, first learned of the fire. Of significance is the 

court's strict application of § 99 in ruling that the action was 

barred as untimely regardless of who had authority to bring 

suit. Id. at 587-588, 590. 

More recently in Hawley v. Preferred Mut. Cas. Co., 88 

Mass. App. Ct. 360, 364 (2015), we cited J. & T. Enterprises, 

Inc., noting that "it is well settled that the statute of 

limitations begins to run at the time the loss occurred." 

Specifically at issue in Hawley was whether the provision of 

§ 99 providing for the tolling of the statute of limitations

applied in the circumstances presented; this court determined 

that it did not and that the limitations period was not tolled.

 

12 Nurse's reliance on Providence Builders, LLC v. 

Philadelphia Indem. Ins. Co., 83 Mass. App. Ct. 1127 (2013), a 

summary decision issued pursuant to our rule 1:28, does not help 

him. The decision has no precedential value and, in any event, 

is distinguishable. 
9

In construing Massachusetts law in Nunheimer v. Continental 

Ins. Co., 68 F. Supp. 2d 75, 78 n.5 (D. Mass. 1999), a Federal 

District Court judge determined that the discovery rule does not 

apply to the statute of limitations in § 99. There, the judge 

concluded that the "loss" referenced by the statute is the 

incident "causing the damage to the property" rather than the 

denial of insurance benefits, reasoning that prior State court 

decisions reflected this interpretation "unequivocally." See 

id. at 78.13 Outside of Massachusetts, the application of the 

discovery rule in this context varies across jurisdictions, and 

we draw no clear guidance from the relevant decisions.

14 

 

13 In Mulhern v. Philadelphia Indem. Ins. Co., 802 F. Supp. 

2d 317, 322 (D. Mass. 2011), the insurer moved for partial 

summary judgment on statute of limitations grounds. A different 

Federal District Court judge, construing Massachusetts law, 

assumed that the discovery rule applied to a loss governed by 

§ 99 in a situation where the damage occurred gradually and 

there was a question of fact as to when it could reasonably have 

been perceived. Consequently, the judge denied the insurer's 

motion. (It is noteworthy that the decision does not contain 

any analysis of the distinction between the Massachusetts cases 

that adopt the discovery rule -- construing statutes with 

"accrual" language -- and cases under § 99 using "loss occurred" 

as the starting date for the running of the limitations period.)

14 Some jurisdictions have adopted a version of the 

discovery rule in the insurance context. See, e.g., PrudentialLMI Commercial Ins. v. Superior Ct., 51 Cal. 3d 674, 686 (1990)

(announcing "delayed discovery rule" for "accrual of a cause of 

action" by which "inception of the loss" occurs when 

"appreciable damage occurs and is or should be known to the 

insured, such that a reasonable insured would be aware that his 

notification duty under the policy has been triggered"); Jackson

v. State Farm Fire & Cas. Co., 108 Nev. 504, 509 (1992)

(limitations period triggered by "manifestation of loss" which 
10

More fundamentally, we agree with the judge that the plain

language of the statute does not support the application of the 

discovery rule. "[C]onsistent with our general practice of 

 

occurs when "appreciable damage occurs and is or should be known 

to the insured") (citations omitted). See also Elsey v. 

Hastings Mut. Ins. Co., 161 Mich. App. 484, 488 (1987)

(implicitly applying discovery rule in concluding that 

plaintiffs' claim was time barred because, "through the exercise 

of reasonable diligence, they should have discovered their 

loss").

However, in extending these principles several courts have 

indicated that the discovery rule is only appropriate where a 

claim is predicated on a "nonobvious injury or loss." See, 

e.g., Parker v. Worcester Ins. Co., 247 F.3d 1, 4 & n.4 (1st 

Cir. 2001) ("no one would expect an insured to be stripped of 

coverage where a reasonable person would not have detected the 

injury or loss"); Prudential-LMI Commercial Ins. v. Superior 

Ct., 51 Cal. 3d at 681 ("delayed discovery rule" appropriate 

where plaintiffs were "blamelessly ignorant" of objective facts 

underlying claim); O'Reilly v. Allstate Ins. Co., 474 N.W.2d 

221, 223 (Minn. Ct. App. 1991) (extending delayed discovery rule 

in cases involving latent or progressive property damage).

 

Other courts have altogether declined to extend the 

discovery rule to limitations periods in the insurance context, 

reasoning that a loss occurs or "has its inception" when the 

casualty insured against takes place irrespective of when the 

damage is discovered. See, e.g., Sager Glove Corp. v. Aetna 

Ins. Co., 317 F.2d 439, 441 (7th Cir.), cert. denied, 375 U.S. 

921 (1963) ("[t]he loss occurs and has its 'inception' whether 

or not the insured knows of it"); Harvey Fruit Mkt., Inc. v. 

Hartford Ins. Co., 294 Ill. App. 3d 668, 669 (1998) ("date 

utilized for determining the date of loss is the date on which 

the actual physical loss of property occurred"); Moore v. Mutual 

of Enumclaw Ins. Co., 317 Or. 235 (1993) (unlike statutes 

referencing accrual of cause of action, statute referencing 

inception of loss not amenable to discovery rule); Borgen v. 

Economy Preferred Ins. Co., 176 Wis. 2d 498, 505 (Ct. App. 1993)

("'inception of the loss' clearly and unambiguously means the 

date on which the loss occurs . . . '[i]nception' means 

'beginning; start; commencement'") (citations omitted).
11

statutory interpretation, we look first to the language of the 

statute because it is 'the principal source of insight' into the 

intent of the Legislature." Sisson v. Lhowe, 460 Mass. 705, 708 

(2011), quoting from Bishop v. TES Realty Trust, 459 Mass. 9, 12 

(2011). In instances where the discovery rule has been 

extended, the governing statute of limitations required a 

determination of when the cause of action accrued, as opposed to 

when the "loss occurred."15 By contrast, § 99 does not reference 

accrual.16

 

15 As discussed previously, the Massachusetts cases that 

have both adopted and extended the discovery rule construe 

language pertaining to the accrual of a cause of action. 

Friedman v. Jablonksi, 371 Mass. at 484, involved G. L. c. 260, 

§ 2A, as then in effect, which provided in pertinent part: 

"Except as otherwise provided, actions of tort, actions of 

contract to recover for personal injuries, and actions of 

replevin, shall be commenced only within two years next after 

the cause of action accrues" (emphasis supplied). Franklin v. 

Albert, 381 Mass. at 612 n.3, involved G. L. c. 260, § 4, as 

then in effect, which provided, in pertinent part: "Actions of 

contract or tort for malpractice, error or mistake against 

physicians, surgeons, . . . hospitals . . . shall be commenced 

only within three years next after the cause of action accrues" 

(emphasis supplied).

16 The judge further noted that even if a discovery rule 

applied to Nurse's claim, it was likely the claim would 

nevertheless be barred. The discovery rule starts the running 

of the statute of limitations when a claimant reasonably should 

know of his loss. The policy required Nurse to inspect the 

vacant property on a weekly basis ("You, or a responsible adult 

appointed by you, must inspect the dwelling on a weekly basis to 

ensure that there are no visible signs of loss or damage to the 

insured property . . ."). Nurse visited the premises on 

December 21, 2009, but claims he did not see the damage. As 

already noted (see note 6, supra), during that visit he did not 

inspect the premises beyond the hallway. According to the 
12

Moreover, the phrase "loss occurred" is unambiguous. It 

clearly denotes the time at which the damage to the property

happens. As the court observed in J. & T. Enterprises v. 

Liberty Mut. Ins. Co., 384 Mass. at 588, § 99 "states broadly 

that no action for recovery of any claim by virtue of the policy 

shall be sustained unless brought within two years from the time 

the loss occurred." In Nunheimer v. Continental Ins. Co., 68 F.

Supp. 2d at 78, the court interpreted the word "loss" as the 

incident or event that causes "damage to the property." Accord 

Hawley v. Preferred Mut. Ins. Co., 88 Mass. App. Ct. at 364. It 

is well settled that "statutory language should be given effect 

consistent with its plain meaning and in light of the aim of the 

Legislature." Herrick v. Essex Regional Retirement Bd., 77 

Mass. App. Ct. 645, 649 (2010), S.C., 465 Mass. 801 (2013), 

quoting from Sullivan v. Brookline, 435 Mass. 353, 360 (2001). 

The language we must construe here ("from the time the loss 

occurred") has not changed since the time the provision was 

added in 1881,

17 despite the application of the discovery rule in 

other contexts. The phrase "loss occurred" simply does not rest 

on a determination of when the loss was discovered. Put simply, 

 

judge, "A jury would likely conclude that Nurse should have been 

aware of the damage by no later than December 21, 2009." 

17 See St. 1881, c. 166, § 1.
13

if the aim of the Legislature had been to incorporate the notion 

of accrual into § 99, it would have done so.18 

For the foregoing reasons, we conclude that the discovery 

rule does not apply to claims governed by § 99. Because it was 

beyond dispute the water damage for which Nurse seeks coverage 

occurred on December 19, 2009, the statute of limitations began 

to run on that date. Accordingly, this action is untimely, and 

summary judgment was properly granted.

Judgment affirmed.

 

18 The Supreme Judicial Court's decision in Goldsmith v. 

Reliance Ins. Co., 353 Mass. 99 (1967), provides additional, 

albeit somewhat tangential, support for our conclusion. In that 

case the court was faced with a conflict between G. L. c. 175, 

§ 22, which provides that an insurance policy may not contain a 

provision that limits the time within which a cause of action 

accrues to less than two years, and § 99, which provides that 

the action must be brought within two years of the time that the 

loss occurred. The court determined that the conflict could be 

resolved by confining the application of § 22 to "nonstatutory 

limitations." The court observed that "§ 99, in limiting 

actions to two years from the time the loss occurs, limits them 

to less than two years from the time the cause accrues." Id. at 

102.