The Massachusetts Appeals Court recently held that the six-year statute of repose (G.L. c. 260, § 2B) did not bar a homeowner’s insurer’s subrogation claim against a gas company for damages caused by the company’s failure to maintain a gas meter that caused a fire on the homeowner’s property in February 2015.
The gas company, Bay State Gas d/b/a Columbia Gas, had installed the gas meter on the property in 1996, attaching the meter to a high-pressure gas pipe rising out of the ground but not installing supports to brace the pipe. Bay State Gas retained ownership of the meter and maintained it over the years prior to the fire. The incident occurred when the meter broke off from the pipe under the weight of significant snowfall, causing a fire that damaged the homeowner’s property. The insurer, Penn-America, paid the homeowner’s claim and subrogated against Bay State. Bay State obtained summary judgment in the trial court on grounds that the claim was barred by the six-year statute of repose, as the meter had been installed nearly 20 years before the incident.
The Appeals Court vacated the decision, noting that the six-year statutory period applies only to 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.” The Appeals Court rejected Bay State Gas’ argument that the failure to include supports for the pipe was a defect in the original design in 1996. Instead, it agreed with Penn-America that the incident resulted from Bay State Gas’ breach of its continuing duty to maintain the meter – as Bay State had done throughout the years – and was beyond the scope of the statute.
In light of the Penn-America case, those in the construction industry should carefully evaluate whether any ongoing maintenance obligations for older improvements are sufficiently up to code as those obligations are seperate and distinct from issues with the original design, and not within the statute of repose.
Penn-America v. Bay State Gas Co. d/b/a Columbia Gas, No. 19-P-86 (Mass. App. Ct. Dec. 20, 2019)