In an important decision issued March 1, 2019, the Massachusetts Supreme Judicial Court ruled that the the Massachusetts statute of repose applicable to construction projects is likely to bar most “black lung” or asbestos-related mesothelioma claims because the symptoms arise many years after the 6 year statute of repose has already expired. The Court recognized this and suggested that “the appropriate recourse is in the Legislature, not this court.” The case is Stearns v. Metropolitan Life Insurance Company, et al., No. SJC-12544.
The SJC in the case was interpreting the six-year statute of repose set forth in Mass. G. L. c. 260, § 2B (§ 2B). The question presented on a certification was whether the statute “operates to bar tort claims arising from diseases with extended latency periods, such as those associated with asbestos exposure, where the defendants had knowing control of the injurious instrumentality at the time of exposure.” The Court ruled that it did: “we conclude that § 2B completely eliminates all tort claims arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property after the established time period has run, even if the cause of action arises from a disease with an extended latency period and even if a defendant had knowing control of the instrumentality of injury at the time of exposure.”
The court also noted that “In so doing, we recognize that, considering the latency period for asbestos-related illnesses, this will have the regrettable effect of barring all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits.”
The statute provides in relevant part: "Action[s] 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."
The plaintiffs in the case argued that § 2B “does not shield a defendant that was in control of the improvement to real property at the time of the incident giving rise to the cause of action, nor does it apply to diseases with extended latency periods, such as those associated with asbestos exposure.” The SJC rejected this argument.
The court reasoned that the statutory language was clear and that “had the Legislature wanted to exempt claims arising from negligence involving asbestos from § 2B specifically, it has demonstrated that it knows how to do so.” To support this point, it cited G. L. c. 260, § 2D, “the so-called asbestos revival statute,” in which “the Legislature established special time periods during which the Commonwealth and its subdivisions could bring an action, otherwise time-barred by § 2B, to recover the cost of asbestos removal from public buildings.”
The court also reiterated, "As we have stated previously, we recognize that statutes of repose 'may impose great hardship on a plaintiff who has suffered injury and has a meritorious claim' but who does not suffer or discover the injury within the period permitted for initiation of suit." But that “[n]owithstanding this harsh reality, we do not interpret statutes based on such concerns.” Instead, the court must apply the language of the statute and “[i]f doing so results in any ‘inconveniences or hardships,’ then it is for the Legislature, not for the court, to resolve.”
In concluding, the court noted “The plaintiffs point out that a number of other State Legislatures have effectively exempted asbestos-related illnesses from their respective statutes of repose concerning improvements to real property. We encourage our Legislature to consider doing the same should it determine that such an exception is consonant with the Commonwealth's public policy.”