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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 commonlaw 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 sixyear 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 threeyear statute of limitations applicable to torts. See Anthony's 

 

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

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.