M.T. Realty Corp. v. Van Allen

1983 Mass. App. Div. 257, 1983 Mass. App. Div. LEXIS 91
CourtMassachusetts District Court, Appellate Division
DecidedAugust 18, 1983
StatusPublished

This text of 1983 Mass. App. Div. 257 (M.T. Realty Corp. v. Van Allen) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.T. Realty Corp. v. Van Allen, 1983 Mass. App. Div. 257, 1983 Mass. App. Div. LEXIS 91 (Mass. Ct. App. 1983).

Opinion

Larkin, J.

This is an action for breach of warranty and negligence in which the appellant (plaintiff-below) seeks to recover claimed damages allegedly suffered as a result of the sale and negligent installation by the appellee (defendant-below) Bay State Gas Company (hereinafter “Bay State”) of a defective boiler. Bay State responded to the complaint by filing a motion to dismiss under Rule 12 (b) (6), M.R.C. P., asserting that the claims for negligence and breach of warranty were barred by the applicable statute of limitation and that the breach of warranty claim was also barred because of an asserted lack of privity under G.L.c. 106, § 2-318.

The trial judge held a hearing on Bay State’s Motion and, thereafter, ordered that the motion be granted, dismissing plaintiff’s action against Bay State. It is this action of the trial judge in dismissing plaintiffs (appellant-here) action against Bay State which is the subject of this appeal.

The facts which ground this appeal are as follows:

On December 27,1979, the appellant purchased an apartment building located at 19-25 Maple Street and 6-8-10 Temple Street, Springfield, Massachusetts from Anna Van Allen and Shawmut First Bank and Trust Company acting as trustee u/w Harvey Van Allen.2 Some twenty years earlier, in 1958 or thereabouts, the record shows that appellee Bay State had supplied and installed a boiler in the [258]*258apartment building subsequently purchased by the appellant in 1979.

Thereafter, according to the complaint, the boiler which Bay State had installed in 1958, was found to be faulty, defective and inadequate to service the said apartment building, despite the fact that the boiler had been in use for only one-half of its expected 40-year normal useful life. It was further asserted by appellant that the boiler supplied and installed by Bay State in 1958 was, at the time of installation, inadequate to service the building in which it was installed, and as a result the boiler failed to last its expected normal useful life.

The boilerwas removed and replaced by the appellant in September of 1981 at an approximate cost of $8,100, and thereafter appellant commenced this suit.

The first issue which we address is whether the actions brought by the appellant against Bay State were barred by the applicable statute of limitations.

The complaint filed in the District Court alleged that the plaintiffs damages were suffered in 1979, and that the plaintiff, as a subsequent purchaser of the boiler, was a person whom Bay State might reasonably have expected to use or be affected by said boiler or furnace. On the issue of limitations, Bay State argued at the District Court hearing and in its supporting brief, that the applicable statute of limitations was contained in G.L.c. 260, § 2A, as it existed in 1958, the date of the sale. That section then provided:

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.

The defendant further argued that the plaintiff’s cause of action for negligence accrued at the date of the negligent act in 1958, and thus the two year period of limitations contained in G.L.c. 260, § 2A, had lapsed prior to the institution of suit.

With respect to the plaintiff s breach of warranty claim, the defendant argued that the controlling statute of limitations was contained in G.L.c. 106, § 2-725, which sets a limitations period of “four years after the cause of action has occurred” and that a “cause of action accrues when the breach occurs regardless ofthe aggrieved party’s lack of knowledge of the breach.” Bay State argued that since the alleged breach occurred in 1958, the limitations period had lapsed on plaintiff s claim for breach of warranty. The trial court was persuaded by this reasoning. We disagree.

As noted above, the actions commenced by appellant against Bay State were for negligence and breach of warranty in connection with a boiler supplied and installed by Bay State. The actions therefore are governed by G.L.c. 106, § 2-318, as amended, which provides:

Lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer, seller, lessor or supplier of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant if the plaintiff was a person whom the manufacturer, seller, lessor or supplier might reasonably have expected to use, consume or be affected by the goods. The manufacturer, seller, lessor or supplier may not exclude or limit the operation of this section. Failure to give notice shall not bar recovery under this section unless the defendant proves that he was prejudiced thereby. All actions under this section shall be commenced within three years next after the date the injury and damage occurs.

A review of the relevant statutory history in this area shows that the defense of lack of privity was first eliminated by the legislature by Section 1 of Chapter 670 [259]*259of the Acts of 1971, amending G.L.c. 106, § 2-318. As the section was promulgated in 1971, it contained no statute of limitation provisions. Furthermore, section 2 of Chapter 670 specifically provided:

Section 2-318 of chapter 106 of the General Laws, as amended by section one of this act shall apply to sales made on or after the effective date of this act.

Therefore, it seems clear that under Section 2-318, as it appeared in 1971, the section would not have been applicable to an action based on a transaction occurring in 1958, well before the effective date of the 1971 amendment to section 2-318. See Marcil v. John Deere Industrial Equipment Co., Mass. App. Ct. Adv. Sh. (1980) 841, 844-845, holding that a plaintiff did not benefit from the enactment of St. 1971, c. 670, § 1, which amended section 2-318 where the product was purchased before the effective date of the amendment, citing section 2 of chapter 670, Acts of 1971.

However, the legislature again amended section 2-318 in 1973 by chapter 750 of the Acts of 1973, completely rewriting the statute to read as it is quoted above, except for the last sentence which in the 1973 amendment required that actions be commenced within two years next after the date of the injury.3 In addition to rewriting section 2-318, the legislature also provided in section 2 of St. 1973, c. 750 the following:

Section 2-318 of chapter one hundred and six of the General Laws, as amended by section one of this act, shall apply to leases which are made and to injuries which occur after the effective date of this act, (emphasis added)

It seems clear, therefore, that the old limitation on the 1971 version of section 2-318 found in St. 1971, c. 670, § 2, was no longer applicable because the 1971 version had been completely stricken out by the legislature. Additionally, section 2 of St. 1973, c. 750, specifically provides that the 1973 version of section 2-318 applies to injuries occurring after the effective date of the amendment (90 days from September 7,1973). It is clear, therefore, that in determining whether the 1973 version of Section 2-318 applies, it is the date of the injury and damage that is crucial and the date of the sale is no longer relevant.

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Bluebook (online)
1983 Mass. App. Div. 257, 1983 Mass. App. Div. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mt-realty-corp-v-van-allen-massdistctapp-1983.