1. Home
  2.  » 
  3. Real Estate Law
  4.  » Statue of Repose Precludes Wrongful Death Claim Filed Within Three Years of Death But More Than Six Years After Installation of Water Heater

Statue of Repose Precludes Wrongful Death Claim Filed Within Three Years of Death But More Than Six Years After Installation of Water Heater

M.G.L.c. 260, § 2B, also known as a statute of repose, governs tort claims arising from  improvements made to real property. The statute of repose was passed to protect providers “of individual expertise” in the business of planning, constructing, and administering improvements to real estate. It eliminates certain tort claims filed more than six years after the work, regardless of whether an injury has occurred by then. The six-year period starts on “the earlier date of (1) the opening of the improvement to use; or (2) substantial completion of improvement and the taking of possession for occupancy by the owner.”

In Szulc v. Siciliano Plumbing & Heating, Inc., the Appeals Court addressed the scope of the statute of repose in connection with a wrongful death claim arising out of the installation of a water heater by a licensed plumber.

In 2012, the plumber designed and installed a piping system in a residential property.  He also installed several water heaters and tested the water temperature in each apartment. Shortly thereafter, the city issued a certificate of occupancy for the building.  In 2016, while taking a shower, the decedent suffered a seizure and was found in the bathtub with several inches of steaming hot water, which caused him third degrees burns and later resulted in his death. Within three years of the decedent’s death, but more than six years after the installation of the water heater and issuance of the certificate of occupancy, the personal representative filed a wrongful death claim against the plumbing company for negligent installation. The plumbing company obtained judgment in its favor arguing that the wrongful death claim was barred by the statute of repose. The personal representative appealed.

On appeal, the personal representative argued that the statute of repose was not triggered because the installation of a water heater did not involve the required “individual expertise” or “particularized services.” In making that argument, the personal representative relied on Columba v. Fulchini Plumbing, where the Appeals Court declined to apply the statute of repose, holding that the mere installation of a replacement boiler is not considered “design, planning, construction, or general administration” required under the statute.

The Appeals Court disagreed with the personal representative’s argument, noting that Columba v. Fulchini Plumbing was distinguishable for several reasons. In Columba, the plumber did not show that he provided any individual expertise in installing the replacement boiler and even conceded that his work did not involve any design or structural work. In Szulc, however, the plumber had designed and installed the piping system, requiring some professional judgment.

The personal representative further argued that its claim had nothing to do with the design and installation of the piping system. The Appeals Court found that argument unavailing because the statute contemplates three phases to any improvement to real property – a design phase, a construction phase and an administration phase – all of which are part of the same continuous project. It concluded the installation of the water heater is part of the construction project and, therefore the statute, of repose applies. The Court ruled that, since the claim had not been brought within six years after the city issued the certificate of occupancy for the building, the wrongful death claim was time-barred.

Categories

Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.