Massachusetts Appellate Court Holds Discovery Rule Does Not Toll Statute of Limitations for Water Damages Suit

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Nurse v. Omega US Insurance, Inc., No. 14-P-653, (Mass. App. Ct., Oct. 5, 2015). The Massachusetts Appeals Court held that the state’s “discovery rule,” which tolls the statute of limitations until a claimant discovers damage, did not apply to an apartment building owner’s lawsuit against his insurance company seeking coverage for water damages. The applicable statutory language, found in Mass. Gen. Laws ch. 175, § 99, was incorporated into the insurance policy and provides that “no suit or action against this company for the recovery of any claim . . . shall be sustained in any court . . . unless commenced within two years from the time the loss occurred . . . .” Here, it was undisputed that the loss occurred on December 19, 2009, but was not discovered until December 28, 2009, when the Boston Water and Sewer Commission notified plaintiff of increased water usage and he visited the apartment. Plaintiff filed his complaint on December 28, 2011. After reviewing a history of cases applying the discovery rule, the Appellate Court noted that in each case where the discovery rule was applied, the court was construing statutes that set forth a limitations period that began when a cause of action “accrued.” In this case, the Appellate Court was not construing language pertaining to when a cause of action accrued, but, rather when the loss occurred. Thus, the Appellate Court concluded that the discovery rule does not apply to claims governed by § 99, and that the trial court had properly granted summary judgment to the insurer because plaintiff’s complaint was filed more than two years after the date when the loss occurred.