In Rock Built v. Deacon, the Appellate Division of the Northern District of Massachusetts addressed claims arising out of flooring contractor Rock Built’s work on homeowner Alan Deacon’s Littleton, MA home. After a failed water heater caused substantial water damage requiring replacement of a portion of the home’s wood floor, Deacon negotiated a contract with Rock Built for repairs. With a final work estimate of $13,475.39, Rock Built agreed to perform repairs and warranty all labor for one year after completion.
Litigation ensued when Deacon failed to pay Rock Built. This appeal primarily focused on homeowner Deacon’s counterclaim for violations of the Home Improvement Contractors Statute, G.L. c. 142A. The question was important because violations of the Contractors statute are deemed to be per se violations of the Massachusetts Consumer Protection Act, G.L. c. 93A, which provides homeowners with powerful remedies, including treble damages in certain situations.
Deacon alleged that Rock Built violated G.L. c. 142A § 2 by failing to give a specific enough of description of the work to be performed, and further violated § 2 by failing to include notice of a three-day right of rescission, a right to claim arbitration, and Rock Built’s contractor license numbers in its contract. The Court held that none of these claims were cognizable because ultimately there was no evidence that “Deacon suffered any loss or injury as a result of the violations of G.L. c. 142A.” Id. at 6. Applying Heshenow v. Enterprise Rent-A -Car of Boston, 445 Mass. 790, 798–799 (2006), the court found that, “any homeowner seeking relief for violation of G.L. c. 142A does so under G.L. c. 93A since G.L. c. 142A authorize[s] homeowners to obtain relief under G.L. c. 93A, and did not create any new causes of action.” Therefore, a plaintiff must, “demonstrate that even a per se deception caused a loss.”
What is striking about the decision is its retreat from automatically finding Contractor Regulation violations to be compensable Consumer Protection Act violations. In a previous case, a defendant contractor unsuccessfully argued that the “real world” should not subject every builder or contractor to the full brunt of remedies of G.L. c. 93A for any violation of G.L. c. 142A, § 2, “however de minimis it may be.” The Appellate Division for the Western District disagreed and held that the language of the statute was clear and unambiguous: “Violations of any of the provisions of this chapter shall constitute an unfair or deceptive act under the provisions of chapter ninety-three A.” Debettencourt v. Aronson, 2009 Mass. App. Div. 183 (2009) vacated in part by DeBettencourt v. Aronson, 2011 Mass. App. Div. 27 (Dist. Ct. 2011).
Rock Built’s change in G.L. c. 142A interpretation signals to contractors and construction firms that their liability may be limited only to instances where the violations cause actual harm to their customers and provides them with a colorable defense in such cases.
Hugh Gorman leads Prince Lobel’s Construction Practice Group and focuses his practice on the representation of Developers, Owners, Contractors and Subcontractors with respect to all legal issues impacting the construction industry. If you have questions about any of the information listed above, or would like to know more about how this decision will affect contractors or subcontractors, please contact Hugh at 617.456.8093 or at hgorman@PrinceLobel.com