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| Christian Stephens |
While the Supreme Judicial Court's tolling orders were laudably intended to essentially freeze the rights of all parties at a time when court activities were greatly impacted by the pandemic, those orders will challenge civil parties and practitioners alike for years to come.
Relevant Background
Due to COVID-19, on March 17 the Supreme Judicial Court ordered all Massachusetts civil statutes of limitations to be tolled effective that day. The court further ordered all other statutory deadlines ("all deadlines set forth in statutes") to be tolled effective March 17, subject to possible contrary rulings in specific cases ("[u]nless otherwise ordered by the applicable court").
Citing "public health concerns regarding the COVID-19 (coronavirus) pandemic" and the need to "protect the public health by reducing the risk of exposure to the virus and slowing the spread of the disease," the court issued the tolling orders "pursuant to its superintendence authority" — that is, the Supreme Judicial Court's ability to generally supervise Massachusetts' judicial system and lower courts.[1]
On several occasions, including most recently on June 24, the court issued subsequent orders clarifying that all civil statutes of limitations and all other statutory deadlines would be deemed tolled between March 17 and June 30, on which date the tolling period will end. The SJC announced that no further tolling will be ordered "unless there is a new surge in COVID-19 cases in the Commonwealth and the SJC determines that a new or extended period of tolling is needed."
Future Issues and Challenges For Plaintiffs, Defendants and Their Attorneys
For years to come, the Supreme Judicial Court's tolling orders will warrant close consideration whether a party is bringing or defending a lawsuit governed by Massachusetts law, particularly where a claim is potentially time-barred.
As an initial matter, the tolling orders entered earlier this year will necessitate careful calculation of limitations periods, and unfortunately preclude any easy calculation of them.
For example, rather than easily determining whether claims such as conversion, negligence or misappropriation of trade secrets were timely asserted within three years of an alleged event, practitioners and parties must now add to the three-year limitations period another 106 days. This issue (and awkward number) alone is bound to cause problems and disputes.
In cases involving longer statutes of limitations — for example, consumer protection claims under Chapter 93A (four years), contract claims (generally six years), or claims involving obsolete mortgages (35 years in some cases) — the tolling orders issued as a result of COVID-19 will have a lasting effect long into the future, even where no other tolling (i.e., contractual or equitable) applies.
And, suits brought outside of Massachusetts state courts but that are governed by Massachusetts law — for example, where a contract contains a choice-of-law provision — will present particular challenges for litigants who seek to assert or preclude claims based on the applicable statute of limitations before tribunals that may lack familiarity with the Supreme Judicial Court's tolling orders.
More problematically, the Supreme Judicial Court's orders tolling "all deadlines set forth in statutes" will likely not toll and prevent all statutory deadlines from running. Take, for example, statutes of repose.
A statute of repose places an absolute time limit on the liability of those within its protection and abolishes a plaintiff's cause of action thereafter, even if the injury does not occur or is not discovered until later. Supreme Judicial Court precedent makes clear that, unlike statutes of limitations, statutes of repose may not be tolled for any reason.[2] This presents a critical issue for both parties and practitioners alike.
Statutes of repose exist in a variety of contexts, including construction, professional liability and product liability matters, among numerous others. While a potential plaintiff now may have a longer period (by 106 days) to commence an action, the COVID-19 tolling orders likely do not also result in a longer statute of repose period, thereby increasing the risk that claims filed within the extended limitations period may nonetheless still be time-barred. The uncertainty is compounded by the prospect of contrary rulings on a case-by-case basis, as permitted by the tolling orders.
Enterprising (and well-funded) counsel may also seek to directly challenge the validity of the Supreme Judicial Court's tolling orders, particularly in cases where high-exposure claims such as class actions would be time-barred but for the operation of the tolling orders and, thus, where the expenditure of time and resources may be warranted.
For example, Massachusetts General Law Chapter 211, Section 3, which reflects the Supreme Judicial Court's general superintendence authority, expressly precludes the court from acting to "supersede any general or special law" except in a "case or controversy" before it. Arguably, the tolling orders exceeded the court's superintendence authority — at least as set forth in Section 3 — because they declared statutes duly enacted by the Legislature inapplicable on a universal scale affecting all potential civil matters without a specific case or controversy before the SJC.
Indeed, the tolling orders are highly unusual and likely unprecedented in scope, and the Supreme Judicial Court's authority to issue declarations of such broad applicability outside of an actual case or controversy, pursuant to its general superintendence authority, and which override specific contrary legislative determinations as to applicable limitations or repose periods, may be susceptible to separation of powers or other constitutional or legal challenges.
Ultimately, the tolling orders may derive from the Supreme Judicial Court's constitutional or inherent superintendence powers (as opposed to its statutory superintendence power reflected in Section 3), the contours of which are far from clear. While it is unlikely the SJC would deem its own orders legally infirm, another court could — which would only further confuse the operation of limitations and other statutory periods moving forward.
Ultimately, the Massachusetts General Court may see a need to enact legislation approving and codifying the Supreme Judicial Court's tolling orders to eliminate any potential constitutional or legal challenges to them and to provide certainty for civil litigants in the commonwealth. While such retroactive legislation could itself be susceptible to legal challenges, presumably Massachusetts courts would find such legislation, if appropriately drafted, reasonable and enforceable in light of the Supreme Judicial Court's own orders earlier this year and due to the extraordinary circumstances presented by COVID-19.
Conclusion
While the SJC's tolling orders were laudably intended, their ripple effects will present challenges for litigants and practitioners for years to come in Massachusetts — and likely in many other jurisdictions, including California and New York, in which limitations periods were similarly tolled as a result of COVID-19.
Christian B.W. Stephens is a member at Eckert Seamans Cherin & Mellott LLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See Mass. Gen. Laws c. 211, § 3.
[2] See Stearns v. Metro. Life Ins. Co.
, 481 Mass. 529, 533 (2019).For a reprint of this article, please contact reprints@law360.com.