Colomba v. Fulchini Plumbing

• Decision Date: 07 May 2003
• Docket Number: No. 01-P-327.,01-P-327.
• Citation: 58 Mass. App. Ct. 901,788 N.E.2d 555
• Parties: Giuseppe COLOMBA v. FULCHINI PLUMBING.
• Court: Appeals Court of Massachusetts

788 N.E.2d 555

58 Mass. App. Ct. 901

Giuseppe COLOMBA v. FULCHINI PLUMBING.

No. 01-P-327.

Appeals Court of Massachusetts.

May 7, 2003.

Lauren A. Boice for the plaintiff.

Christine M. Tynan for the defendant.

RESCRIPT.

Joseph Fulchini of Fulchini Plumbing¹ was hired by the plaintiff, Giuseppe Colomba, to install a replacement boiler in the basement of Colomba's two-family house. The work consisted of removing the old boiler and installing the new one in a space close to a wood partition. Seven years later, on or about November 15, 1997, the boiler dry fired and caused a conflagration resulting in substantial property damage. Colomba sued. Fulchini moved for summary judgment on the basis of G.L. c. 260, § 2B, and his motion was granted. Colomba appeals.

The question presented is whether G.L. c. 260, § 2B, as amended by St.1984, c. 484, § 53, the so-called statute of repose, bars Colomba's complaint for negligence, breach of contract, and breach of warranty. The statute reads, in pertinent part: "[An a]ction 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 ... shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after ... the opening of the improvement to use ..."² (emphasis added).

The motion judge ruled that the installation of a new boiler constituted an "improvement to real property" encompassed by G.L. c. 260, § 2B, and granted the defendant's motion for summary judgment on that basis.³ This determination resolves only part of the inquiry. The protections of the statute of repose extend only to those who perform acts of "`individual expertise' akin to those commonly thought to be performed by architects and contractors — that is to say, ... parties who render particularized services for the design and construction of particular improvements to particular pieces of real property." Fine v. Huygens, DiMella, Shaffer & Assocs., 57 Mass.App.Ct. 397, 402, 783 N.E.2d 842 (2003), quoting from Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 696, 506 N.E.2d 509, cert. denied, 484 U.S. 953, 108 S.Ct. 345, 98 L.Ed.2d 371 (1987) (manufacturer of defective circuit breaker panel who did not claim to have rendered any particularized services with respect to design or construction of building in which component was installed could not claim protections of § 2B). Assuming without deciding that the installation of a new boiler enhanced Colomba's property so as to constitute a qualifying improvement, see, e.g., Conley v. Scott Prods., Inc., 401 Mass. 645, 647, 518 N.E.2d 849 (1988) (defining improvement to real property under statute), on this record we cannot conclude that Fulchini's work in simply installing the boiler involved the type of "design, planning, construction or general administration" required by the statute of repose. G.L. c. 260, § 2B. The focus on "individual expertise" and "particularized services" has remained constant in our decisions since the...