Supreme Judicial Court Clarifies Breadth of COVID-19 Tolling Order
During the early days of the COVID-19 pandemic, the Supreme Judicial Court of Massachusetts (“SJC”) entered an order tolling the statutes of limitations applicable to civil claims. Although some practitioners interpreted the order as tolling only those statutes of limitations set to expire while the order was in effect, in Shaw’s Supermarkets, Inc. v. Melendez, SJC-13054 (Sept. 3, 2021), the SJC rejected such a narrow interpretation and held that its order tolled all statutes of limitations, regardless of their expiration date. Employers should take note of Melendez and consider whether they have any other timeliness arguments when faced with stale claims.
In Melendez, the plaintiff alleged that she was injured because of the defendant’s negligence on September 3, 2017. Although M.G.L. c. 260, § 2A requires plaintiffs to file tort claims within three years “after the cause of action accrues,” the plaintiff filed suit on September 24, 2020 pursuant to the SJC’s Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic (“COVID-19 Order”), which provided that “[a]ll civil statutes of limitations were tolled . . . from March 17, 2020, through June 30, 2020.”
The defendant moved to dismiss the plaintiff’s claim as barred by the statute of limitations. In support of its motion, the defendant argued that the COVID-19 Order tolled only those statutes of limitations that were set to expire from March 17, 2020, through June 30, 2020. Because the statute of limitations applicable to the plaintiff’s claim would have expired on September 3, 2020, the defendant contended that the COVID-19 Order was inapplicable.
Based on the “plain language” of the COVID-19 Order, “which tolled all civil statutes of limitations regardless of their expiration,” the district court rejected the defendant’s argument. On appeal, the SJC affirmed the district court’s decision, reasoning that the phrase “[a]ll civil statutes of limitations” “encompasse[d] each and every civil statute of limitations, not just those where the statutory period of limitation expired between March 17, 2020, and June 30, 2020.”
Considerations for Employers
Melendez makes clear that the COVID-19 Order essentially tacks additional time onto the statute of limitations applicable to any cause of action that accrued on or before June 30, 2020. Accordingly, it may require employers to litigate claims that they otherwise would have been able to dismiss based on the applicable statute of limitations. However, employers may still have three timeliness arguments to defeat late-filed claims after Melendez.
First, employers should consider whether the statute at issue is truly a statute of limitations, or whether it is a statute of repose. In Klein v. Catalano, 386 Mass. 701 (1982), the SJC explained the difference between the two types of statutes as follows:
A statute of limitations normally governs the time within which legal proceedings must be commenced after the cause of action accrues. . . . A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action. The injury need not have occurred, much less have been discovered.
By its terms, the SJC’s COVID-19 Order applies only to statutes of limitations, not statutes of repose. More importantly, on numerous occasions, the SJC has held that, unlike statutes of limitations, statutes of repose may not be tolled for any reason. As a result, a statute of repose may provide employers with a basis for defeating a time-barred claim.
Second, the SJC’s COVID-19 Order likely does not toll an employee’s 300-day deadline to file a discrimination or retaliation claim under M.G.L. c. 151B with the Massachusetts Commission Against Discrimination (“MCAD”). The COVID-19 Order focused on the operation of Massachusetts’ courts, and the SJC issued it pursuant to the SJC’s “superintendence and rule-making authority” over the court system. As such, administrative filing deadlines are presumably beyond its reach. In addition, on April 1, 2020, the MCAD issued Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis providing that “extending filing deadlines . . . will be determined on a case-by-case basis . . . by submitting a motion to the investigator or staff member assigned to [the] case.” That the MCAD adopted its own guidelines on tolling further suggests that the SJC’s COVID-19 Order is inapplicable to MCAD proceedings. Accordingly, employers faced with an untimely claim at the MCAD may be able to secure its dismissal if they can show that traditional tolling doctrines (such as equitable tolling, the continuing-violation doctrine, and fraudulent concealment) do not apply.
Finally, it is unclear whether Melendez affects arbitration agreements that shorten the limitations period applicable to claims subject to the agreement. Employers with such arbitration agreements may be able to enforce their contractually shortened limitations periods, provided that the shortened period is reasonable.
Employers dealing with potentially time-barred claims should consult with counsel about these and other defenses.