It’s Better to Be the Plaintiff Than the Defendant in Massachusetts Superfund Cases

In the early days of Superfund, defense lawyers used to joke that all government lawyers had the same oral argument script.  It was three sentences long.

Good afternoon, your honor.  My name is _____ and I represent the government in this case.  We win.

Lawyers in Massachusetts rightly feel that that pretty much remains the state of affairs in Massachusetts, at least for private cost recovery or property damage claims.  The latest evidence is the Supreme Judicial Court’s opinion in Grand Manor Condominium Association v. City of Lowell, in which the SJC ruled that the plaintiffs had not missed the statute of limitations, notwithstanding that suit was filed more than three years after they learned that the condominiums were on top of a former City landfill and that contamination had been discovered that required reporting under the state Superfund law, Chapter 21E.  The Court stated that:

A plaintiff has notice of a claim under § 5 (a) (iii) once the plaintiff learns whether or not remediation and response costs will fully compensate the plaintiff for the harm he or she has suffered, as well as the identity of the party who caused such harm. This will not ordinarily occur until the plaintiff learns that the damage to his or her property is not reasonably curable by the remediation process.

In so holding, the Court seemed simply to ignore that, traditionally, all that is required to trigger the statute of limitations in property damage cases is the knowledge that one has suffered some harm and of the identity of the person responsible for the damage.  It has never been the case that one could wait until every dollar of damage was quantified before bring suit.

Here, the Court seems to take the position that property damage is an all-or-nothing claim.  Either one has no damage at all or one’s property is irretrievably harmed.  If that were the case, then it would make sense to say that the statute does not run until the plaintiff obtains knowledge of the permanent damage.  What’s weird about the decision is that Court acknowledged that, in some cases, there can be temporary damage, but did not seem to understand the full implications of that acknowledgement.

Indeed, in many, if not most, cases, there will be temporary harms, even apart from the possibility of permanent damage.  There can be odors that cause a loss of quiet enjoyment.  What about someone who is looking to sell the property before the cleanup has been completed?  When does the statute of limitations run on those claims?  Are there multiple statutes of limitations for different types of property claims?

Avoiding such questions is precisely why there has always been one simple rule – the statute runs when the plaintiff knows it has suffered some harm, and knows who caused the harm.

Instead, the rule in Massachusetts seems to be that the statute of limitations begins no earlier than the date which still allows the SJC to preserve the claims.

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