38 N.E.3d 759
Mass. App. Ct.2015Background
- Plaintiff Karl Nurse owned a three-unit building insured by Omega under a policy (4/27/09–4/27/10) that incorporated G. L. c. 175, § 99, Twelfth, providing a two‑year limitation "from the time the loss occurred."
- A soldered joint failed and released water on December 19, 2009, causing substantial damage; Boston Water and Sewer Commission records showed a usage spike beginning that day.
- Nurse discovered the damage on December 28, 2009, filed an insurance claim, and Omega denied coverage on January 14, 2011, after investigation.
- Nurse sued for declaratory relief and breach of contract on December 28, 2011 — more than two years after the December 19, 2009 loss.
- The Superior Court granted Omega summary judgment, holding the suit time‑barred under § 99; the Appeals Court affirmed, concluding the discovery rule does not toll § 99.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discovery rule can toll the two‑year limitations period in G. L. c. 175, § 99 for an insured loss | The discovery rule should apply so the limitations period begins when the insured discovered or reasonably should have discovered the loss | § 99’s two‑year period begins when the loss occurred; discovery rule does not apply to a statute referencing when the loss occurred | Discovery rule does not apply; limitations begin when the loss occurred (Dec. 19, 2009), making the suit untimely |
| Whether factual disputes about when Nurse should have known of the damage preclude summary judgment | Nurse contended there was a factual question about when he should have been aware of the damage (so discovery tolling might apply) | Even if facts were disputed, the discovery rule is inapplicable so the factual timing issue is irrelevant | Court rejected that the factual dispute matters because the discovery rule does not govern § 99; summary judgment proper |
Key Cases Cited
- Hendrickson v. Sears, 365 Mass. 83 (court applied discovery rule in legal malpractice context)
- Bowen v. Eli Lilly & Co., 408 Mass. 204 (discussion of discovery rule and accrual)
- J. & T. Enterprises, Inc. v. Liberty Mut. Ins. Co., 384 Mass. 586 (strict application of § 99 — limitations measured from time of loss)
- Franklin v. Albert, 381 Mass. 611 (use of discovery rule in medical malpractice cases construing accrual language)
- Hawley v. Preferred Mut. Cas. Co., 88 Mass. App. Ct. 360 (statute of limitations for insurance loss begins when loss occurred)