State guide · Northeast
Massachusetts subrogation law guide
The insured recovers as long as its negligence is not greater than the combined negligence of the defendants, with damages reduced by its share. At 51% or more the claim is barred.
Massachusetts at a glanceMA
- Property damage
- 3 years
- Bodily injury
- 3 years
- Fault rule
- Modified, 51% bar
- Gov. notice
- 730 days
Overview
Massachusetts gives subrogation teams a 3-year tort period and a 6-year contract period, but the rules around those periods are what move recovery numbers. The state compares the insured's negligence against all defendants combined, keeps full joint and several liability, and splits contribution among joint tortfeasors pro rata instead of by fault share under M.G.L. c. 231B. Product claims run through negligence and the implied warranty of merchantability because Massachusetts never adopted strict tort liability, and there is no product statute of repose. Auto is a no-fault market: PIP pays up to $8,000 per person, and the PIP carrier holds a statutory reimbursement right against the at-fault party under c. 90, s. 34M whether or not the injured person crosses the $2,000 medical threshold for a tort suit. Collision and property recoveries are untouched by no-fault and follow ordinary negligence rules. Two deadlines deserve their own calendar entries: 2-year presentment to public employers under the Tort Claims Act, and 30-day notice for damage from a defective public way.
Quick reference with citations
- Property damage SOL
- 3 years
- M.G.L. c. 260, s. 2A (torts); c. 260, s. 4 (motor vehicle torts)
- Bodily injury SOL
- 3 years
- M.G.L. c. 260, s. 2A
- Product liability
- 3 years for negligence and breach of warranty claims (M.G.L. c. 260, s. 2A; c. 106, s. 2-318). Massachusetts has no strict tort liability and no product statute of repose; the 6-year repose in c. 260, s. 2B covers improvements to real property only.
- Written contract
- 6 years
- Contract and indemnity recoveries
- Comparative fault rule
- Modified, 51% bar
- M.G.L. c. 231, s. 85
- Government notice of claim
- 730 days
- Massachusetts Tort Claims Act, M.G.L. c. 258, s. 4: written presentment to the public employer's executive officer within 2 years after the cause of action arose; suit may follow a written denial or 6 months of inaction and must be filed within 3 years of accrual. Damage from a defect in a public way also requires written notice within 30 days (M.G.L. c. 84, s. 18). Public employer liability is capped at $100,000 per plaintiff (c. 258, s. 2).
Fault rule in practice
How Massachusetts's rule changes a $50,000 recovery.
The insured recovers as long as its negligence is not greater than the combined negligence of the defendants, with damages reduced by its share. At 51% or more the claim is barred.
Authority: M.G.L. c. 231, s. 85
| Insured's share of fault | Recoverable in MA | Under pure comparative |
|---|---|---|
| 0% | $50,000 | $50,000 |
| 20% | $40,000 | $40,000 |
| 50% | $25,000 | $25,000 |
| 60% | Barred | $20,000 |
Doctrines that move the number
Massachusetts doctrine checklist.
Made-whole doctrine
Massachusetts has never firmly adopted the made-whole doctrine. Courts treat it as a gap filler that applies only when the policy is silent, and clear subrogation or reimbursement language controls (Harris v. Harvard Pilgrim Health Care, Inc., 208 F.3d 274 (1st Cir. 2000)). Some trial courts still require proof of duplicate recovery, so allocate settlements by damage category.
Economic loss doctrine
Purely economic losses are not recoverable in negligence or warranty-based product claims absent personal injury or damage to other property (Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103 (1989)). Federal courts applying Massachusetts law require the other property to belong to the plaintiff.
Joint and several liability
Full joint and several liability survives, so any one defendant can be held for the entire judgment. Contribution among joint tortfeasors is divided pro rata by head count, not by fault (M.G.L. c. 231B, s. 1), and a good-faith release reduces the claim against the others by the amount paid (s. 4), so sequence settlements deliberately.
Anti-subrogation and waiver
A residential tenant is an implied co-insured under the landlord's fire policy unless the lease expressly makes the tenant liable (Peterson v. Silva). Commercial tenancies turn on the lease language (Seaco Ins. Co. v. Barbosa, 761 N.E.2d 946 (Mass. 2002)).
Practice notes
Working Massachusetts subrogation files.
- 1
Comparative fault is measured against the defendants as a group. On a $60,000 kitchen fire paid to a homeowner whose contractor left a torch unattended, a finding that the insured was 30% at fault for stacking combustibles near the work yields $42,000. At 50% the recovery is $30,000; at 51% it is zero. Because the comparison is aggregate, naming a second responsible contractor can keep a close file above the bar.
- 2
PIP files carry their own recovery track. Under c. 90, s. 34M the PIP carrier can recover benefits paid plus claim processing and enforcement expenses from the at-fault party, regardless of the tort threshold, but only within the adverse liability limits. If the claimant's bodily injury settlement exhausts those limits, nothing remains for PIP. Put the adverse carrier on notice of the PIP interest at first contact.
- 3
Compulsory property damage liability rose from $5,000 to $30,000, and bodily injury minimums to $25,000 per person and $50,000 per accident, for policies issued or renewed on or after July 1, 2025. Collision files against minimum-limits drivers that used to close at $5,000 now have six times the collectible coverage, so pursuit thresholds written into claim system rules before 2025 should be reset.
- 4
Ishqkala opens a c. 84 notice task within one business day when adjuster notes mention a pothole, catch basin, sunken grate or other road defect, because the 30-day public way notice runs from the date of damage. Any file that names a city, town, housing authority or other public employer also gets a c. 258 presentment task dated well inside the 2-year window.
Key cases
Peterson v. Silva
428 Mass. 751 (1999)
A landlord's fire insurer cannot subrogate against a residential tenant for a negligently caused fire unless the lease expressly establishes the tenant's liability. The tenant is treated as an implied co-insured.
Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co.
404 Mass. 103 (1989)
Adopted the economic loss rule for product claims: no tort recovery for damage to the product itself without personal injury or damage to other property, which pushes vessel, vehicle and equipment self-damage recoveries into warranty.
Inter-company arbitration
Massachusetts carriers resolve most inter-company auto physical damage and property subrogation through Arbitration Forums, where signatories must arbitrate claims up to $100,000 in company-paid damages; the insured's deductible is not counted in that figure. Massachusetts is also one of the states a signatory can elect in AF's PIP forum for s. 34M reimbursement disputes. AF filings do not reach uninsured drivers, contractors or self-insured businesses that are not signatories, so those claims still need suit inside the 3-year tort period.
How Ishqkala applies this guide
MA rules, built into every score.
- Opportunities with a Massachusetts loss state are calendared against the 3 years property damage period or the 3 years bodily injury period, whichever controls the claim type.
- The insured's estimated fault share is applied under modified, 51% bar before recoverable dollars are scored.
- Files involving a public entity get a 730-day notice deadline that outranks the general SOL in the priority queue.
- Alerts fire at 180, 90, 45 and 15 days before the controlling deadline.
FAQ
Massachusetts subrogation FAQ
3 years (M.G.L. c. 260, s. 2A (torts); c. 260, s. 4 (motor vehicle torts)). A subrogating carrier generally takes the insured's claim subject to the same limitation period, usually measured from the date of loss.
Modified, 51% bar (M.G.L. c. 231, s. 85). The insured recovers as long as its negligence is not greater than the combined negligence of the defendants, with damages reduced by its share. At 51% or more the claim is barred.
Massachusetts Tort Claims Act, M.G.L. c. 258, s. 4: written presentment to the public employer's executive officer within 2 years after the cause of action arose; suit may follow a written denial or 6 months of inaction and must be filed within 3 years of accrual. Damage from a defect in a public way also requires written notice within 30 days (M.G.L. c. 84, s. 18). Public employer liability is capped at $100,000 per plaintiff (c. 258, s. 2).
Massachusetts has never firmly adopted the made-whole doctrine. Courts treat it as a gap filler that applies only when the policy is silent, and clear subrogation or reimbursement language controls (Harris v. Harvard Pilgrim Health Care, Inc., 208 F.3d 274 (1st Cir. 2000)). Some trial courts still require proof of duplicate recovery, so allocate settlements by damage category.
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