Real property – Condominium – Mold – Discovery rule

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Where a judge dismissed as untimely the negligence counts in a complaint filed by a plaintiff whose condominium unit was infiltrated by toxic mold, the dismissal order must be reversed based on the applicability of the discovery rule.

“The plaintiff claims that the limitations clock began running when Gordon Mycology reported the existence of ‘hazardous mold in unsafe levels’ in her unit, and she became aware of the potential injury she was facing. The report in question was issued on March 10, 2006, within the three-year limitations period. The defendants argue that the harm occurred at the time of the initial leak, as the plaintiff ‘appreciated the leak, the cause and the potential for harm from the leak’ at that time.

“The question whether the discovery rule applies to circumstances involving a water intrusion outside the limitations period, followed by the later development and discovery of toxic mold, is novel and has not yet been addressed in Massachusetts. Other jurisdictions that have addressed it have applied the rule to such cases. Those courts have held, at the least, that ‘when the claimant in a toxic mold case experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms, that is the point at which the statute of limitations begins to accrue.’ …

“We agree with the foregoing cases that without some indication of a hazardous contamination, the plaintiff could not have been aware that she was being exposed to toxic mold, regardless of when the leak began. Contrary to the defendants’ argument, it is not a certainty that all water infiltration will eventually evolve into toxic mold. To conclude otherwise would encourage, and possibly even require, a plaintiff to preemptively file suit the moment water starts to infiltrate a dwelling or other building, before any mold or mold-related injury has even occurred. We accordingly hold that the plaintiff’s complaint should not have been dismissed, as the discovery rule applies to the negligence allegations as put out in her complaint.”

Other claims

“The plaintiff next claims that her trespass and nuisance claims are not barred by the statute of limitations because her property was the subject of a continuing water infiltration. …

“… Read together, the factual allegations, which are incorporated into each count of the complaint, can only lead to the inference that the leaks were continuous from 2004 until the filing of the complaint. Those allegations state that following the initial leak in 2004, the plaintiff had a rotting deck in 2005, then more water infiltration in February, 2006, followed by a report of ‘water intrusions and chronic dampness’ in March, 2006. Later paragraphs note the presence of ‘leaks,’ rather than a single leak, and allege that the leaks and chronic dampness have not been repaired, leading to the inference that the leaks were continuing up until the point the complaint was filed. Drawing all reasonable inferences in favor of the plaintiff, as we must, … the complaint alleges sufficient facts to support claims of trespass and nuisance from leaks that occurred during the statutory period. …

“The plaintiff alleges in counts VI and VII of her complaint that both Lundgren [Management Group] and [Construction by] Design [Ltd.] entered into contracts to repair with the [defendant] trust, and that she was an intended third-party beneficiary of those contracts. …

“… [T]he plaintiff’s bare allegation as to each count that she ‘was an intended beneficiary of said contract,’ with no additional facts regarding the defendants’ intent, fails to state a claim for relief as an intended third-party beneficiary to a contract. …

“Count V of the first complaint alleges breach of contract against the trust, stating that the trust ‘entered into an agreement with the plaintiff to maintain the common areas and elements of the condominium.’ The proposed amended complaint alleges that the trust ‘entered into an agreement with the plaintiff to stop the leaks into her unit.’ Thus, the proposed amendment significantly changes the operative contract from general agreements contained in the master deed, trust document or condominium by-laws, to a specific and separate contract entered into between the trust and the plaintiff. A separate contract would give rise to none of the issues the trust has raised in relation to the pleading in the first complaint. Given this significant change in the cause of action pleaded, the judge should have granted the motion to amend as to count V, and abused his discretion in failing to do so. As noted, leave to amend should be freely given, particularly in this instance where the motion was not unduly delayed and the trust has made no attempt to argue actual prejudice by the amendment.”

Doherty v. Admiral’s Flagship Condominium Trust, et al. (Lawyers Weekly No. 11-139-11) (15 pages) (Cypher, J.) (Appeals Court) Case heard by Connolly, J., on a motion to dismiss, and a motion to amend complaint heard by Troy, J., in Superior Court. Robert J. Doyle, of Steinberg, Doyle, for the plaintiff; Edmund A. Allcock, of Marcus, Errico, Emmer & Brooks, for Admiral’s Flagship Condominium Trust; William P. Rose, of Tucker, Heifetz & Saltzman, for Construction by Design Ltd. (Docket No. 10-P-840) (Aug. 15, 2011).