# Safety Insurance Company v. Marlette Homes, Inc.

> District Court, D. Massachusetts · December 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10199911

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** December 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________________
)
SAFETY INSURANCE COMPANY, )
as subrogee of WALTER NEAS, )
)
Plaintiff, ) Civil Action No.
) 19-12012-FDS
v. )
)
MARLETTE HOMES, INC. and )
CMH MANUFACTURING, INC., )
)
Defendants. )
_______________________________________)

MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

SAYLOR, C.J.

This is a lawsuit arising from a fire that occurred in a manufactured home. Plaintiff
Safety Insurance Company, as subrogee of Walter Neas, alleges that defendants Marlette Homes,
Inc. and CMH Manufacturing, Inc., were negligent and breached the warranty of merchantability
because an allegedly faulty electrical connection started a fire in the home. Jurisdiction is based
on diversity of citizenship.
Defendant CMH has moved for summary judgment on the grounds that plaintiff’s claims
are foreclosed by the Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B, or,
alternatively, that plaintiff has failed to put forth sufficient facts concerning the origins of the
fire. Because the statute of repose applies to the claims, the motion will be granted.
I. Background
A. Factual Background
The following facts are stated as set forth in the record and are undisputed except as
noted.
Pine Hill Estates is a manufactured-home park in Raynham, Massachusetts. Pine Hill
Estates, Inc., is the management company that operates the park. It collects rent, pays the park’s
bills, maintains common areas, and keeps the streets in repair. (Bumila Dep. at 15, ECF No. 35-

5). Residents of Pine Hill Estates lease a plot of land and then purchase a manufactured home to
put on the property. (Id. at 15). Those purchases are made through June Sales, LLC, which is a
retailer of manufactured homes for Pine Hill Estates. (Id. at 17). June Sales purchases the
structure from CMH, which then adapts one of its model homes in accordance with any
customized features requested by the purchaser. (Weldy Dep. at 122-24, ECF No. 35-4; Bumila
Dep. at 46-47).
The homes are manufactured at CMH’s facility in Lewistown, Pennsylvania. Prior to
leaving the facility, the structure is inspected to ensure it meets the National Manufactured Home
Construction and Safety Standards and complies with other regulations promulgated by the
Department of Housing and Urban Development. (Weldy Dep. at 145, 148-49; Bumila Dep. 75-

76).
The structure at issue in this matter was manufactured and shipped in two sections.
When such a structure arrives on site from the factory, construction is nearly complete—all
plumbing and electrical wiring is installed and the interior trim is finished. (Bumila Dep. at 31).
All that remains is for subcontractors hired by June Sales to join the pieces of the structure
together and connect the utilities; June Sales finishes the driveway and landscaping. (Id. at 30).
The residents then occupy the new home as owners of the structure and leaseholders of the
underlying property. (Id. at 15).
In 2004, Walter Neas purchased a home through June Sales known as a “Marlette Schult
Smart Buy II Sectional, Model No. 6828-316,” which he customized in a variety of different
ways. (Ex. 3 at 1-2, ECF No. 35-3). Among other things, he picked the flooring, the appliances,
and the slope of the roof. (Id.). He chose a home designed to be suitable for New England
weather, with a roof capable of withstanding 30 pounds of snow per square foot and thermal

insulation sufficient to withstand low temperatures. (See id.).
CMH then manufactured the home according to the requested specifications and shipped
it in two pieces to Pine Hill Estates. (Id. at 4; Bumila Dep. at 26-31). The two pieces were then
joined together by subcontractors into a completed building. At some point thereafter, Walter
and his wife Angela took up residence in their new home. (Ex. 6 at 4, ECF No. 35-6).
On August 17, 2016, a fire occurred at the Neas’s home. (Ex. 7 at 2, ECF No. 35-7).
The Raynham Fire Department responded to the incident; notes from the day of the fire indicated
that the fire was unintentional and identified “electrical wiring” as the “equipment involved in
ignition.” (Id. at 4). Peter Bumila, the president of Pine Hill Estates and the manager of June
Sales, also visited the home on the day of the fire. (Bumila Dep. at 64). He reported that the

structure had “heavy smoke damage” and that there was charred wood underneath it at the
“source of the electrical problem” and “source of the fire.” (Id. at 64-65). He noted charring
near an electrical connector located along the wall where the two segments of the structure were
joined during installation. (Id. at 65-66).
The connectors complete the electrical circuits, allowing for power to flow between the
two halves of the building. (See Weldy Dep. at 50-55). Each half of a connector is installed by
stripping insulation from the end of a conductor cable, separating the conductor wires within that
cable, pressing each wire into an assigned slot in one half of a plastic assembly, and then sealing
the assembly covers together. (Ex. 13, ECF No. 37-2; Weldy Dep. at 61-63; Morse Report at 16-
18, ECF No. 35-9).1 The mating end of that sealed plastic assembly connects with the other half
of the connector, which is assembled in the same fashion. (Morse Report at 16). The connector
halves were installed by members of defendant’s electrical team at the factory so that the two
halves could be easily connected by the on-site contractors. (See Weldy Dep. at 57-64; Bumila

Dep. at 87-88).
Experts for both Safety Insurance Company and CMH agree that the fire originated at the
electrical connector. (See Williams Report at 31, ECF No. 35-8; Morse Dep. at 57-58, ECF No.
37-1). However, they disagree as to the fire’s cause. CMH’s expert opines that the connector
overheated at the point of connection between the two halves of the device. (Morse Report at
21). His report states that “[t]he specific mechanism that caused the overheating of the subject
connector is undetermined.” (Id. at 22). Safety Insurance’s expert opines that the fire originated
in one of the connector halves due to “physical damage . . . during factory assembly.” (Williams
Report at 33).
After the fire, in accordance with the insurance policy, Safety Insurance paid for the

damages to the structure and personal property. (Compl. ¶ 11). It then brought this action as a
subrogee of Walter Neas.
B. Procedural Background
On August 19, 2019, Safety Insurance filed this action in Massachusetts Superior Court.
On September 25, 2019, defendant CMH removed the action to this Court, alleging diversity
jurisdiction under 28 U.S.C. § 1332. The complaint alleges that CMH was negligent in the
manufacture of the electrical connection device and the wiring of the home. The complaint also

1 The plastic assembly is called a Molex “Self-Contained Power Connector.” (Ex. 13 at 2, ECF No. 37-2).
alleges that CMH breached its warranty of merchantability. (Compl. ¶¶ 12-43). 2
On May 10, 2021, CMH moved for summary judgment on all counts.
II. Legal Standard
The role of summary judgment is “to pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Summary
judgment shall be granted when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue is
“one that must be decided at trial because the evidence, viewed in the light most flattering to the
nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.”
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In
evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of
the nonmoving party. See O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When “a
properly supported motion for summary judgment is made, the adverse party must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986) (quotation marks omitted). The nonmoving party may not simply “rest
upon mere allegation or denials of his pleading,” but instead must “present affirmative
evidence.” Id. at 256-57.
III. Analysis
CMH has moved for summary judgment on two grounds. First, it asserts that, as a

2 Plaintiff also asserted similar claims against Marlette Homes, Inc. However, Marlette Homes was
voluntarily dissolved effective December 29, 2000. (Def. CMH Notice of Removal, Ex. C at 2-3). Moreover, it
does not appear that it was properly served. (Id., Ex. D). As a result, the Court lacks personal jurisdiction over
Marlette Homes and the claims against it will be dismissed. See Omni Cap. Int’l, Ltd. v. Rudolf Wolf & Co., Ltd.,
484 U.S. 97, 104 (1987).
designer and builder of manufactured homes, it is protected by the Massachusetts statute of
repose, Mass. Gen. Laws ch. 260, § 2B. That statute forecloses tort claims brought more than six
years after the completion of an improvement to real property. Second, it argues that Safety
Insurance has failed to present sufficient evidence that CMH’s alleged negligence caused the

fire.
Safety Insurance contends that the statute of repose does not apply because defendant did
not engage in the type of design or construction activity protected by the statute. It also contends
that it has presented sufficient evidence from which to infer that the faulty electrical connector
made by CMH ignited the fire.
For the reasons set forth below, the Court concludes that as a matter of law the statute of
repose applies and is dispositive of both claims.
A. The Massachusetts Statute of Repose - Generally
Massachusetts has enacted a statute of repose for tort actions arising from improvements
to real property. Mass. Gen. Laws ch. 260, § 2B. The statute provides that an action alleging
“deficiency or neglect in the design, planning, construction, or general administration of an

improvement to real property” is subject to a six-year limitations period. Id.3 That period begins
to run upon “the opening of the improvement to use” or “substantial completion of the
improvement and the taking of possession for occupancy by the owner,” whichever is earlier. Id.
According to the Supreme Judicial Court, the legislature’s main object in enacting § 2B

3 The statute provides in relevant part:
Action[s] of tort damages arising out of any deficiency or neglect in the design, planning,
construction or general administration of an improvement to real property, other than that of a
public agency . . . shall be commenced only within three years next after the cause of action accrues;
provided, however, that in no event shall actions be commenced more than six years after the earlier
of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the
improvement and the taking of possession for occupancy by the owner.
Mass. Gen. Laws ch. 260, § 2B.
was to limit liability for those in the construction industry in the aftermath of case law that
abolished “the long-standing rule that once an architect or builder had completed his work and it
had been accepted by the owner, absent privity with the owner, liability was cut off as a matter of
law.” Stearns v. Metro. Life Ins. Co., 481 Mass. 529, 533-34 (2019); see Klein v. Catalano, 386

Mass. 701, 708-09 (1982). Thus, the law prevents those involved in the construction industry
from being subject to potential liability “when architectural plans may have been discarded,
copies of building codes in force at the time of construction may no longer be in existence,
persons individually involved in the construction project may be deceased or may not be
located.” Stearns, 481 Mass. at 534. Although “[o]n its face, § 2B defines the protected actor
largely by reference to protected acts,” persons, such as architects, engineers, or contractors, who
employ “individual expertise” in the design, planning, or construction of real property are
generally entitled to the protection of the statute. Dighton v. Fed. Pac. Elec. Co., 399 Mass. 687,
694, 696 (1987).
A defendant invoking the protection of § 2B must satisfy three requirements: the cause

of action must sound in tort; the alleged tort must arise from the defendant’s involvement in an
improvement to real property; and the time period specified in the statute must have run. See
Mass. Gen. Laws ch. 260, § 2B. Here, the parties do not dispute that plaintiff’s actions sound in
tort, nor, if the statute of repose applies, the deadline for bringing an action has long ago passed;
the property was first occupied in 2004, and this action was not commenced until 2019. The
question is therefore whether defendant designed or constructed “an improvement to real
property.”
B. “Improvement to Real Property”
The statute of repose does not define the term “improvement to real property.” Dighton,
399 Mass. at 696. The SJC has interpreted that phrase to mean “a permanent addition to or
betterment of real property that enhances its capital value and that involves the expenditure of
labor or money and is designed to make the property more useful or valuable as distinguished
from ordinary repairs.” Conley v. Scott Products, Inc., 401 Mass. 645, 647 (1988) (quoting
WEBSTER’S THIRD NEW INT’L DICTIONARY 1138 (1961)).

In many circumstances, however, that definition fails to provide meaningful guidance as
to whether the statute’s protection applies. See Dighton, 399 Mass. at 697.4 To discern whether
an actor is a protected party, courts are required to engage in a “fact-based activities analysis”
that considers “the motivation of the actor in producing the improvement.” Snow v.
Harnischfeger Corp., 12. F.3d 1154, 1159 (1st Cir. 1993).
Architects, construction engineers, and builders fall clearly within the statute’s scope.
See Dighton, 399 at 697. The statute, however, does not protect “materialmen” or “mere
suppliers of standardized products.” Id. at 695-96. Rather, those who “render particularized
services for the design and construction of particular improvements to particular pieces of real
property” are covered by the statute. Mass. at 696.

Thus, in Dighton, the manufacturer of a circuit-breaker sought protection under § 2B
from liability for an apartment fire, even though the manufacturer had not been involved in the
design or construction of the building. The court eschewed a literal interpretation of § 2B,
adopting a functional inquiry as to whether the manufacturer had rendered individualized

4 The Dighton court illustrated that point by way of a hypothetical where a sculpture was welded to a
building. Although such an addition to the property may be an improvement to real property according to a
dictionary definition, that definition offers little guidance as to whether the sculptor was engaged in the “protected
activity of ‘improvement to real property.’” Dighton, 399 Mass. at 697. The court explained:
If he produced the sculpture on commission by the developer to specifications provided in part by
the architect and the engineer, we might conclude that he is protected by § 2B; but if he mass-
produced the sculpture and sold it for use in a variety of contexts, or for incorporation into any
building, we would conclude that he had been involved merely in the activity of producing and
selling a fungible commodity, and not in the activity of improving real estate.
Id.
services for a specific piece of real estate. See id. at 696-98. It concluded that the manufacturer
was a mere “producer and seller of ‘goods,’” not entitled to the protection of the statute, even
though the product was designed to be, and was in fact, incorporated into a building. Id. at 698;
see also Colomba v. Fulchini Plumbing, 58 Mass. App. Ct. 901 (2003) (statute of repose did not

apply to plumber installing a boiler who otherwise did no structural, design, or customized work
on the property); Fine v. Huygens, 57 Mass. App. Ct. 397, 403 (2003) (statute of repose did not
apply to supplier of “stock windows”).
Whether a supplier of construction services or products is entitled to the protection of the
statute often turns on whether the services were particularized to the project, or the products were
customized for the job. See, e.g., Snow, 12. F.3d 1154 (1st Cir. 1993) (statute of repose applied
to designer and manufacturer of a crane that was designed according to customer specifications
for specific plant); Agri-Mark, Inc. v. Niro, Inc., 214 F. Supp. 2d 33 (D. Mass. 2002) (statute
protected firm providing individualized engineering services and hardware required for milk
evaporator upgrade); McDonough v. Marr Scaffolding Co., 412 Mass. 636 (1992) (statute

protected supplier of bleachers, where supplying the product was incidental to its primary
function of performing particularized construction services in assembling and installing
bleachers); Parent v. Stone & Webster Eng’g Corp., 408 Mass. 108 (1990) (statute protected
construction engineering company that installed an electrical distribution panel at electrical
generating plant); Szulc v. Siciliano Plumbing & Heating, Inc., 99 Mass. App. Ct. 729 (2021)
(applied to plumber installing water heaters where installation required “judgments about the
design and flow of the water to maximize the hot water system”); Fine, 57 Mass. App. Ct. at 403
(statute protected a supplier of manufactured wall panel system that was “not a fungible product
designed for public sale or for general use,” but “a component of an exterior wall system “ that
was “manufactured specifically” for the project “pursuant to the specifications of architects and
engineers,” and the supplier “collaborated in the design and erection of the panels’); Rosario v.
M.D. Knowlton Co., 54 Mass. App. Ct. 796 (2002) (statute protected a supplier of a hydraulic lift
who provided individualized expertise and services, collaborated in its design, supervised its

installation, and specified and supervised building modifications). However, suppliers of
products that are only minimally modified or customized to meet the requirements of the project
are not protected. See Fine, 57 Mass. App. Ct. at 403 (“Many products that are mass produced
may also be produced to order, or cut to fit the needs of a particular project, but this alone is not
sufficient to bring a supplier within the purview of § 2B.”).
1. Statute of Repose as Applied to the Manufactured Home
At first blush, it appears that the manufactured home in this case was an “improvement to
real property,” as that term has been interpreted by the SJC. The construction of the home was a
“permanent addition” to real property; it “enhance[d] the capital value” of the property; it
“involve[d] the expenditure of labor or money”; and it was “designed to make the property more
useful and valuable” than before. Conley, 401 Mass. 647. Defendant designed, engineered, and

constructed the home in its entirety, with the exception of the final assembly of the two halves at
the site.
The disputed issue arises from the fact that defendant manufactured the structure in an
off-site factory, not on the property where it was erected. Plaintiff thus contends that defendant
was a mere supplier of a stock “product,” not a customized building designed for a specific piece
of property.
Massachusetts courts have not had occasion to address specifically the applicability of
§ 2B to builders of manufactured homes. Nonetheless, the weight of authority suggests that
manufactured homes should be treated similarly to homes constructed on-site using traditional
methods.
First, as noted, defendant performed all of the principal roles—architect, engineer, and
builder—that the statute is designed to protect. The fact that those services were performed off-
site does not obviously compel the conclusion that the statute does not apply. Presumably, even

with the most complex and customized structures, virtually all architectural and engineering
services are performed off-site. And it is commonplace for builders to employ prefabricated
components, such as rafter systems, even when building a customized home.
Thus, in Cournoyer v. Massachusetts Bay Transportation Authority, 744 F.2d 208, 210
(1st Cir. 1984), the defendant was the designer and manufacturer of a “pre-fabricated, pre-
engineered metal building,” which (according to the plaintiff) was “mass-produced in much the
same way as a metal tool shed from Sears Roebuck.” Plaintiff asserted that defendant was not
protected by § 2B because the building was a factory-manufactured product rather than an
improvement to real property. The First Circuit disagreed. Applying a dictionary definition of
“improvement,” the court stated that “there is nothing inherent in the nature of a prefabricated

building that would take it out of this definition.” Id. The court therefore held that § 2B applied
because the case fell “squarely within the terms” of the statute of repose. Id. 5
At least two state courts from other jurisdictions have applied a similar statute of repose

5 In Klein, the SJC stated that the Massachusetts legislature may have excluded suppliers and manufacturers
from protection under § 2B because manufacturers can adopt high quality-control standards in a factory setting,
whereas architects and contractors utilize expertise that is applied to projects individually and consequently not
“susceptible to the quality control standards of the factory.” 386 Mass. 701, 716-717 (1982). That suggests that
Cournoyer, which involved a manufactured product, might be in some tension with Klein. However, the SJC was
responding to an equal-protection challenge to § 2B and therefore positing rational bases that the legislature could
have entertained for limiting the liability of those in the construction industry; it was not outlining the scope of the
statute. In addition, the SJC has cited Cournoyer as support in later decisions, suggesting that Klein and Cournoyer
are not at odds. See Sullivan v. Iantosca, 409 Mass. 796, 799-800 (1991); Parent v. Stone & Webster Eng’g Corp.,
408 Mass. 108, 111 n.5 (1990). In the Cournoyer decision itself, the First Circuit upheld the constitutionality of
§ 2B by citing the rational bases stated in Klein, including the rationale that the work of architects and contractors is
not easily subjected to quality control. 744 F.2d at 212-13.
to manufactured homes. See Miles v. Deluxe Bldg. Sys. Inc., 2009 WL 2224258, at *4 (N.J. Sup.
Ct. App. Div. 2009) (“[W]e perceive no reason to exclude modular or mass-produced homes
from the meaning of ‘improvements to real property.’”); Frankenmuth Mut. Ins. Co. v. Marlette
Homes, Inc., 456 Mich. 511, 517 (1998) (“[W]e can identify no bright line that causes a

traditional home, constructed on the property where it will remain, to be so fundamentally
different from a ‘manufactured’ home that is largely constructed off-site.”). But see George v.
Western Homes Corp., 2007 WL 2138602, at *2 (D. Or. 2007) (finding that manufactured home
was not real property but rather a product encompassed by product-liability statute of repose).
Although those cases involved facts and law not identical to the present matter, they support the
conclusion that manufactured homes are improvements to real property, and otherwise-protected
architectural, engineering, or construction activities should not be deprived of the statute’s
protection merely because of the location of the home’s construction.6
Plaintiff argues that suppliers of standard products that have been only minimally
modified do not qualify as protected actors under the statute. See Fine 57 Mass. App. Ct. at 403.

To be sure, the “Marlette Schult Smart Buy II” house bought by the Neases likely shares a great
many similarities with other houses of the same model. Yet those similarities do not necessarily
place defendant’s design and construction of the home here beyond the protection of the statute.
And even if it is assumed that the homes are “products,” not buildings, plaintiff’s argument still
fails. Courts have held that actors engage in protected activity when they customize a standard

6 Plaintiff contends that Frankenmuth is inapposite because the court held that the statute of repose applied
to a manufactured-home builder who affixed the home to the property, rather than a builder that worked off-site
only. It is true that the facts and law in Frankenmuth do not fully align with this case, but that court’s statement that
manufactured homes are not mass-produced products and bear great resemblance to traditional homes is persuasive.
See 456 Mich. at 515 (1998). Plaintiff’s contention that Miles is not persuasive has even less force—even though
the injury arose from the collapse of a deck and not the manufactured home to which it was attached, the court
affirmed summary judgment partly on the grounds that the company that manufactured the home was a protected
party under the New Jersey analogue to § 2B. See 2009 WL 2224258, *4-5.
design to meet the specific needs of a particular piece of property. See Snow, 12 F.3d at 1158-59
(holding that § 2B applied to designer of crane made from allegedly standardized materials and
components and according to a design drawing that was duplicated from previous project and
then modified); see also McDonough, 412 Mass. at 643-45 (designer of bleachers was protected

actor because bleachers were designed for a specific hockey rink); Rosario, 54 Mass. App. Ct. at
801 (designer of hydraulic lift was protected actor because the lift had been made according to
specifications provided by customer). Thus, defendant need not design and build the entire home
from scratch to render the kind of “particularized services” to which the statute of repose applies.
Here, the evidence suggests that the home was not a superficially modified standardized
product. The sales order for the home enumerates several customized features—including the
desired flooring material, the pitch of the roof, the material for the doors, the design of locks, the
windowsills, the shutters, and the wiring of telephone and television connections. (See Ex. 3).
The design of the house had to be appropriate for New England weather, evidenced by the
Neases paying more for a home capable of withstanding high winds in coastal areas, bearing

significant snowfall on the roof, and maintaining proper warmth despite the winter cold. (See
id.). Defendant’s customers generally make similar specifications, and sometimes more
substantial modifications, such as altering the original floorplan. (Bumila Dep. at 46-47).
Defendant thus adapts each home it sells to each customer’s specifications, even if many aspects
of the structures are standardized.
Plaintiff also notes that manufactured homes are treated elsewhere in the law as either
personal property or commercial goods, not improvements to real property. Plaintiff points out
that manufactured homes are treated as personal property and exempt from real-estate taxes
pursuant to Mass. Gen. Laws ch. 59 § 5, cl. (36), and that they are considered commercial goods
under the Uniform Commercial Code because they are movable at the time of sale.
Plaintiff is correct that manufactured homes are “generally exempted from real property
taxes” and “classified as personal property.” Mass. Attorney General’s Office, The Attorney
General’s Guide to Manufactured Housing Community Law 5 (2017), available at

https://bit.ly/3lKUCSB, (“Attorney General’s Guide”); Mass. Gen. Laws ch. 59, § 5, cl. (36).
However, that is mostly a consequence of the peculiarities of taxing manufactured-home
communities, where the home and the underlying land are owned by two different parties. In
those circumstances, the property owner pays the real-estate taxes, but that cost can be recovered
by charging the manufactured-homeowners rent. See Mass. Gen. Laws ch. 186, § 15C
(explaining that lessors can offset increases in real-estate taxes by increasing lessee’s rent). In
addition, homeowners pay license fees—in lieu of personal property taxes—to the property
owner, who then turns those fees over to the town. Attorney General’s Guide at 5; Mass. Gen.
Laws ch. 140, § 32G. So, while manufactured homeowners do not formally pay real-estate
taxes, those taxes are functionally paid in the form of rent and license fees.

Under some circumstances, manufactured homes have been classified as real property
and taxed as such. In Ellis v. Board of Assessors of Acushnet, the SJC upheld an Appellate Tax
Board decision that a manufactured home, despite being situated in a manufactured housing
community and subject to a license fee, was not exempt from real-estate taxes under Mass. Gen.
Laws ch. 59, § 5, cl. (36). 358 Mass. 473 (1970). In that case, the SJC reviewed an Appellate
Tax Board decision stating that a manufactured home installed upon a permanent foundation
was, for all intents and purposes, real estate in the traditional sense: “[I]n almost every practical
respect concerning the design, architecture, size, accommodations, durability, permanence,
character, and use, the structure looks like and serves the purpose of a conventional home.” Id.
at 475. As a consequence, the Tax Board had held that the assessment of a real-estate tax was
appropriate. Id. The SJC agreed and opined (albeit in dicta) that in light of the similarities
between manufactured homes and traditional dwellings, to hold otherwise would create a “dual
standard of taxation” in violation of the Massachusetts Constitution. Id. at 477. As a result,

under certain circumstances, manufactured homes are taxed as real property. See Gouck v. Bd. of
Assessors of Town of N. Attleboro, 2009 WL 1366279, at *5-6 (Mass. App. Tax. Bd. 2009)
(upholding assessment of real-estate tax upon property improved by manufactured home
installed upon permanent foundation); cf. 4 MASS. PRAC., TAX’N § 11:18 (5th ed. 2021 update)
(“The [Department of Revenue’s] position is that if the mobile home is affixed to real property,
its sale is not taxable. If it is not so affixed, it will be considered as tangible personal property
and subject to sales tax.”).
It is also true that sales of modular homes constitute “transactions in goods” under the
Uniform Commercial Code, because the homes are “movable at the time of identification to the
contract for sale.” Burnham v. Mark IV Homes, Inc., 387 Mass. 575, 581 (1982) (holding

manufacturer subject to breach of implied warranty of merchantability claim for sale of home
with defective roof). But installed manufactured homes are “largely immobile as a practical
matter.” Craw v. Hometown America, LLC, 2019 WL 1298588, at *1 (D. Mass. 2019) (quoting
Yee v. City of Escondido, Cal., 503 U.S. 519, 523 (1992)). They are fixed to the land, draw
power and water from utilities, and otherwise possess the characteristics of real property, and the
law generally treats them accordingly. For example, the construction of manufactured homes is
subject to federal regulations promulgated by the Department of Housing and Urban
Development. See 24 C.F.R. § 5401, et seq. Under Massachusetts law, the Manufactured
Housing Act “establishes a statutory scheme intended to protect tenants of manufactured housing
communities” because “[b]oth the Legislature and the courts of the Commonwealth have
recognized that [those communities] provide a viable, affordable housing option” to many who
are “often lacking in resources and deserving of legal protection.” Greenfield Country Ests.
Tenants Ass’n, Inc. v. Deep, 423 Mass. 81, 83 (1996). To protect those communities, that law

sets forth provisions designed to “avoid discontinuances of manufactured housing communities
and to ensure tenants of such communities are not left at the peril of their landlords due to a
practical inability to relocate a manufactured housing unit.” Id. at 86. And when lawsuits
concerning manufactured homes arise under the Massachusetts Consumer Protection Law, Mass.
Gen. Laws. ch. 93A, those actions fall within the subject-matter jurisdiction of the Housing
Court, even though similar actions involving movable goods do not. See Patry v. Liberty
Mobilhome Sales, Inc., 15. Mass. App. Ct. 701, 704-05 (1983).
In any event, whether manufactured houses are goods or real estate for other purposes is
not the question at issue. The text of § 2B does not distinguish between objects governed by
contract law or property law. Nor is the statute’s scope determined by property-law doctrines,

such as the law of fixtures. Dighton, 399 Mass. at 697 (explaining that word “improvement” in
statute does not implicate “that tangle of highly technical meanings, often distinct in diverse
legal contexts, which is the law of fixtures”).
Finally, plaintiff contends that defendant failed to engage in any activity protected by
§ 2B because it sold the home to a retailer, not the ultimate owner; it was not directly involved
with the installation of the home on the plot in Pine Hill; and, indeed, it had no knowledge where
the home would be installed. But nothing in the law mandates that a protected party must
directly implement the improvements on the property itself. The statute protects parties involved
in the “design, planning, construction, or general administration of an improvement to real
property.” Mass. Gen. Laws ch. 260, § 2B. That protection is not lost if a party fails to set foot
on the physical property. See Snow, 12 F.3d at 1156, 1158 (designer of customized crane
encompassed by statute even though not involved in physical construction of facility on
property). To find otherwise would countenance a hyper-technical reading of the statute that

undermines the functional inquiry set forth by the SJC.
In summary, CMH is entitled to the protection of the statute of repose based on the fact
that the manufactured home was an “improvement to real property.”
2. Statute of Repose as Applied to the Electrical Connector
Alternatively, plaintiff contends that defendant was a mere supplier of goods with respect
to the connector that allegedly caused the fire. See Cournoyer 744 F.2d at 210-11 (stating that
the statute of repose may not apply to designer of building if injury arose from designer’s
negligent act “committed in its role as supplier”) (emphasis in original); Dighton, 399 Mass. at
695 (stating that the court may conclude that an actor served solely as a supplier if it finds that it
did not “performed protected acts,” such as “render[ing] architectural or engineering services for
the construction of the building.”).

Here, defendant was the actor primarily responsible for designing and constructing the
home. When the structure arrived at Pine Hill, it was “95 percent complete” with the interior
completed and the plumbing and electrical wiring installed. (Bumila Dep. at 31). All that
remained to be done on site was to join the two pieces of the home and connect the utilities.
(Id.). As a consequence, the defendant was intimately involved in the construction of the home
and not solely a supplier of component materials. Plaintiff cannot seek to circumvent the statute
of repose by casting defendant as a supplier of a component part when its primary role was to
design and build the house. See Stearns v. Metro. Life. Ins. Co., 379 F. Supp. 3d 102, 104-05 (D.
Mass. 2019).
It is true that a builder may be held liable for an injury arising from a defective appliance
for which the builder acted merely as a supplier. See Cournoyer, 744 F.2d at 211 n.1. (“[W]ere a
single defendant to have designed a residential structure and supplied, say, a faulty, mass-
produced plumbing fixture that resulted in an injury, we do not think that he would necessarily

be protected by [§ 2B] in his role as supplier.”); cf. McMillan v. Sears Roebuck & Co., Inc., 2002
WL 1676365, at *1 (Mass. App. Ct. 2002) (holding that alleged tort arose out of the role of Sears
as contractor for bathroom remodeling and not as supplier of bathroom fixtures). In this case,
whether defendant benefits from the protections of § 2B depends on whether it acted as a builder
or supplier when it furnished the electrical connection device.
Nothing in the record suggests that defendant was a manufacturer, a wholesaler, or a
retailer of Molex connectors. Instead, defendant utilized the connectors only in its capacity as
the home’s builder, in the same way it used nails, lumber, or other components; the electrical
connector was a component incorporated into the overall wiring system for the house. The home
is not simply an assortment of fungible component parts, all of which are “supplied” by
defendant.7 Defendant’s use of the connectors thus arose directly from its primary role as the

home’s builder.
For those reasons, plaintiff’s contention that defendant was a mere supplier of electrical
connector devices is without merit.

7 Plaintiff mischaracterizes the installation of the devices as the “manufacture” of a fungible product. As is
evident from the assembly process, defendant does not manufacture a fungible connector; rather, members of
defendant’s electrical team use connectors to facilitate what is essentially the splicing together of the conductor
cables.
IV. Conclusion
For the foregoing reasons, defendant’s motion for summary judgment is GRANTED.
So Ordered.

/s/ F. Dennis Saylor, IV
F. Dennis Saylor, IV
Dated: December 3, 2021 Chief Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199911. Public record. Not legal advice.