Stearns v. Metropolitan Life Insurance Co.

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SJC-12544
JUNE STEARNS, coexecutrix,1 & another2 vs. METROPOLITAN LIFE
INSURANCE COMPANY & others.3
Suffolk. December 4, 2018. - March 1, 2019.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
JJ.
Asbestos. Repose, Statute of. Negligence, Statute of repose.
Practice, Civil, Claim barred by statute of repose.
Certification of a question of law to the Supreme Judicial
Court by the United States District Court for the District of
Massachusetts.
1 Of the estate of Wayne Oliver.
2 Clifford Oliver, coexecutor of the estate of Wayne Oliver.
3 Foster Wheeler Energy Corporation; Aurora Pump Co.; Crane
Co.; Ingersoll-Rand Company; Marotta Controls, Inc.; The Nash
Engineering Company; Weir Valve & Controls USA, Inc., formerly
known as Atwood & Morrill Co., Inc.; Viking Pump, Inc.; Warren
Pumps, LLC; General Electric Company; IMO Industries, Inc.,
formerly known as Delaval Steam Turbine Company; NSTAR Electric,
formerly known as Boston Edison Company; New England Insulation
Company; O'Connor Constructors, Inc., formerly known as Thomas
O'Connor Company, Inc.; Flowserve Corporation, formerly known as
Byron Jackson Company; and Velan Valve Corp.
General Electric Company (GE) is the only defendant
involved with the questions certified to this court.
2
John A. Heller, of Illinois (Catherine A. Mohan & Benjamin
M. Greene also present) for General Electric Company.
Michael J. McCann (Michael C. Shepard, Lisa M. Conserve, &
Erika A. O'Donnell also present) for the plaintiffs.
John R. Felice & Brad W. Graham for Massachusetts Defense
Lawyers Association, amicus curiae, were present but did not
argue.
The following submitted briefs for amici curiae:
Lawrence G. Cetrulo, Stephen T. Armato, Whitney K. Barrows,
Elizabeth S. Dillon, Lauren K. Camire, & Brian D. Fishman for
Massachusetts Asbestos Litigation Defendants' Liaison Counsel.
Thomas R. Murphy, Kevin J. Powers, & John G. Mateus for
Massachusetts Academy of Trial Attorneys.
CYPHER, J. In this case we are called on to answer a
certified question from the United States District Court for the
District of Massachusetts concerning whether the six-year
statute of repose set forth in G. L. c. 260, § 2B (§ 2B),
operates to bar tort claims arising from diseases with extended
latency periods, such as those associated with asbestos
exposure, where the defendants had knowing control of the
injurious instrumentality at the time of exposure.4 We answer
the question in the affirmative. Consistent with our precedent,
we conclude that § 2B completely eliminates all tort claims
arising out of any deficiency or neglect in the design,
planning, construction, or general administration of an
4 We acknowledge the amicus curiae briefs submitted by the
Massachusetts Defense Lawyers Association and Coalition for
Litigation Justice, Inc.; Massachusetts Asbestos Litigation
Defendants' Liaison Counsel and Coalition for Litigation
Justice, Inc.; and Massachusetts Academy of Trial Attorneys.
3
improvement to real property after the established time period
has run, even if the cause of action arises from a disease with
an extended latency period and even if a defendant had knowing
control of the instrumentality of injury at the time of
exposure. In so doing, we recognize that, considering the
latency period for asbestos-related illnesses, this will have
the regrettable effect of barring all or nearly all tort claims
arising from negligence in the use or handling of asbestos in
construction-related suits. Nonetheless, the appropriate
recourse is in the Legislature, not this court.
Background. Because our task is limited to responding to
the certified question, we do not delve deeply into the factual
complexities of this case.5 The underlying action concerns the
death of Wayne Oliver, who died in 2016 of mesothelioma after
exposure to asbestos during the construction of two nuclear
power plants in the 1970s. Relevant to the issue at hand,
defendant General Electric Company (GE) designed, manufactured,
and sold steam turbine generators for installation at each of
the plants and supervised the installations. GE's installation
specifications called for the use of asbestos-containing
insulation materials. Oliver, who worked as a pipe inspector
for a nonparty, was present while the insulation was cut, mixed,
5 We take our facts as the Federal District Court judge
found them.
4
and applied to certain piping systems and equipment in the
turbine halls of both plants, exposing him to the toxic asbestos
particles within.
Oliver came into contact with the tainted insulation
between 1971 and 1978,6 received his malignant mesothelioma
diagnosis in April 2015, and commenced the underlying action in
the Superior Court in August 2015. He alleged, among other
things, that GE had negligently exposed him to asbestos during
the construction of the two power plants and caused him to
contract mesothelioma. Thereafter, the case was removed to the
Federal District Court and, when Oliver passed away in July
2016, that court allowed the plaintiffs, as coexecutors of
Oliver's estate, to submit an amended complaint and continue the
litigation.
GE moved for summary judgment on the ground that the
plaintiffs' claims against it were barred by § 2B, which sets a
firm six-year time limit for tort actions arising out of any
deficiency or neglect in the design, planning, construction, or
general administration of an improvement to real property. The
plaintiffs disputed that § 2B was intended to apply to cases
involving diseases with extended latency periods because it
6 The plants opened commercial operations in 1972 and 1975,
respectively.
5
otherwise would have the effect of extinguishing meritorious
claims before they even come into existence.
The judge found that GE's turbine generators, including
their insulation materials, were "indisputably" improvements to
real property under the statute. Notwithstanding this finding,
she denied GE's motion as to Oliver's claims arising from the
alleged asbestos exposure because it was "not at all clear" that
the statute was designed to bar a category of claims "known
uniformly to have a latency period of at least twenty years,"
particularly where "GE had control of the site at the time of
Oliver's asbestos exposure, conducted regular on-site
maintenance and inspections for at least two decades after
construction was complete, and continues . . . to perform
[routine] refueling outages", removing it from the category of
defendants customarily protected by the statute. GE
subsequently moved for the judge either to reconsider her
decision or certify the ruling for an interlocutory appeal to
the United States Court of Appeals. The plaintiffs opposed
interlocutory appeal but, in the event of any such appeal, moved
instead for certification to this court pursuant to S.J.C. Rule
1:03, as appearing in 382 Mass. 700 (1981). The judge denied
GE's motion and certified to us the following question:
"whether or not the Massachusetts statute of repose, [G. L.
c.] 260, § 2B, can be applied to bar personal injury claims
arising from diseases with extended latency periods, such
6
as those associated with asbestos exposure, where
defendants had knowing control of the instrumentality of
injury at the time of exposure."
We conclude that the answer to the reported question is
controlled by the language of § 2B, the history of this and
related statutes of repose, and our previous cases.
Discussion. We interpret a statute according to the intent
of the Legislature, which we ascertain from all its words,
"construed by the ordinary and approved usage of the language"
and "considered in connection with the cause of its enactment,
the mischief or imperfection to be remedied and the main object
to be accomplished" (citation omitted). Harvard Crimson, Inc.
v. President & Fellows of Harvard College, 445 Mass. 745, 749
(2006). See generally G. L. c. 4, § 6, Third. Where, as here,
the language is clear and unambiguous, it is conclusive as to
the Legislature's intent. Sharris v. Commonwealth, 480 Mass.
586, 594 (2018).
It is well established that a statute of repose "eliminates
a cause of action at a specified time, regardless of whether an
injury has occurred or a cause of action has accrued as of that
date." Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349, 352
(2018). See Sisson v. Lhowe, 460 Mass. 705, 709 (2011) (statute
of repose focuses on date defendant's negligent acts or
omissions were alleged to have occurred regardless of whether
cause of action has accrued or whether any injury has resulted
7
[quotations and citation omitted]); Joslyn v. Chang, 445 Mass.
344, 347 (2005) (same). It places "an absolute time limit on
the liability of those within its protection" and "abolish[es] a
plaintiff's cause of action thereafter, even if the plaintiff's
injury does not occur, or is not discovered, until after the
statute's time limit has expired." Bridgwood, supra at 353,
quoting Nett v. Bellucci, 437 Mass. 630, 635 (2002). See
Black's Law Dictionary 1637 (10th ed. 2014) (defining statute of
repose as "[a] statute barring any suit that is brought after a
specified time since the defendant acted [such as by designing
or manufacturing a product], even if this period ends before the
plaintiff has suffered a resulting injury"). The effect is to
"abolish the remedy . . . not merely to bar the action." Tindol
v. Boston Hous. Auth., 396 Mass. 515, 518 (1986). See
Bridgwood, supra at 352 (statutes of repose provide substantive
right to be free from liability after given period of time has
elapsed from defined event).
In stark contrast to statutes of limitation, "statutes of
repose may not be 'tolled' for any reason" (emphasis added).
Nett, 437 Mass. at 635. See, e.g., Rudenauer v. Zafiropoulos,
445 Mass. 353, 358 (2005) (medical malpractice statute of repose
not subject to tolling, even where medical treatment is
ongoing); Joslyn, 445 Mass. at 350-351 (statute of repose not
subject to any form of equitable estoppel or tolling, even in
8
instances of fraudulent concealment); Sullivan v. Iantosca, 409
Mass. 796, 798-799 (1991) (statute of repose bars action even if
knowing and intentional wrongdoing is involved); Tindol, 396
Mass. at 517-518 (statute of repose is not tolled by minority or
mental illness). Indeed, "[t]he only way to satisfy the
absolute time limit of a statute of repose is to commence the
action prior to the expiration of that time limit" (emphasis
added; quotations and citation omitted). Nett, 437 Mass. at
635. See Sisson, 460 Mass. at 716. We previously concluded,
and do so again, that § 2B is no exception to these rules.
Bridgwood, 480 Mass. at 353 (§ 2B protects contractors from
claims arising long after completion of work); Aldrich v. ADD
Inc., 437 Mass. 213, 221 (2002), quoting Klein v. Catalano, 386
Mass. 701, 702 (1982) ("Simply put, after six years, [§ 2B]
completely eliminates a cause of action against certain persons
in the construction industry").
The statute provides in relevant part:
"Action[s] of tort for damages arising out of any
deficiency or neglect in the design, planning, construction
or general administration of an improvement to real
property . . . shall be commenced only within three years
next after the cause of action accrues; provided, however,
that in no event shall such 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."
9
We recently had occasion to discuss both the language of and the
legislative purpose behind the enactment of § 2B in Bridgwood,
480 Mass. at 351-358. In that case, we reiterated that the
Legislature's primary objective in enacting § 2B was to limit
the liability of architects, engineers, contractors, and others
involved in the design, planning, construction, or general
administration of an improvement to real property in the wake of
case law abolishing 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. Id. at 353, discussing Klein,
386 Mass. at 708-709. The abolition of that rule exposed many
participants in the construction industry "to possible liability
throughout their professional lives and into retirement,"
liability that the Legislature sought to curtail with the
enactment of § 2B. Klein, 386 Mass. at 708-709. "Otherwise,
those engaged in the design and construction of real property
may have to mount a defense 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"7 (quotations and citation omitted). Id. at 709–710.
7 Suppliers and manufacturers are not included in the class
of persons protected from suit under G. L. c. 260, § 2B (§ 2B).
10
See Joslyn, 445 Mass. at 351 ("The object of a statute of repose
. . . is to suppress fraudulent and stale claims from springing
up at great distances of time, and surprising the parties, or
their representatives, when all the proper vouchers and
evidences are lost, or the facts have become obscure, from the
lapse of time, or the defective memory, or death, or removal of
witnesses" [quotation and citation omitted]).
We have held that limiting the duration of liability in
this way serves a legitimate public purpose, even though it may
abolish a plaintiff's cause of action without providing any
alternative remedy. Bridgwood, supra at 353. See Klein, 386
Mass. at 712 n.16 (Legislature may enact statute that abolishes
common-law cause of action without providing substitute remedy
if statute is rationally related to permissible legislative
objective). And we have concluded that "[i]n establishing the
six-year limit, the Legislature struck what it considered to be
a reasonable balance between the public's right to a remedy and
the need to place an outer limit on the tort liability of those
McDonough v. Marr Scaffolding Co., 412 Mass. 636, 641 (1992).
See Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 694 n.10,
cert. denied, 484 U.S. 953 (1987) ("It is clear from the
language of the statute, and our decisions, that § 2B does not
apply to materialmen and suppliers. Any ambiguity that may
arise in the application of § 2B arises only from the question
whether a party acted as a materialman or supplier . . . .").
In addition, Massachusetts has not limited products liability
actions with a statute of repose. Cosme v. Whitin Mach. Works,
Inc., 417 Mass. 643, 648 (1994).
11
involved in construction." Klein, supra at 710. See Aldrich,
437 Mass. at 221. The plaintiffs' case is no exception.
The plaintiffs contend that § 2B does not shield a
defendant that was in control of the improvement to real
property at the time of the incident giving rise to the cause of
action, nor does it apply to diseases with extended latency
periods, such as those associated with asbestos exposure. We do
not agree.
The language of § 2B is unequivocal. It provides that "in
no event shall [an action of tort for damages covered herein] be
commenced more than six years" after the earlier of two
specified dates: "(1) the opening of the improvement to use; or
(2) the substantial completion of the improvement and the taking
of possession . . . by the owner" (emphasis added). The
apparent intent of the Legislature was to place an absolute time
limit on the liability of those protected by the statute.
Bridgwood, 480 Mass. at 352-353. Indeed, it "forbids us from
considering the fact that a plaintiff did not discover or
reasonably could not have discovered the harm before the six-
year period of the statute of repose expired," or any other
circumstances that might have tolled the running of a statute of
limitations. Sullivan, 409 Mass. at 798. See id. at 798-799
(as § 2B is written, it makes no difference whether defendant
caused deficiency or neglect "by gross negligence, wanton
12
conduct, or even knowing and intentional wrongdoing"). The
plaintiffs are requesting that we imply exceptions to § 2B where
there are none. We decline to do so. The "Legislature has
fashioned an ironclad rule," Joslyn, 445 Mass. at 351, and we
will not read into it any exception that the Legislature did not
see fit to put there, whether by inadvertence or design.
Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014).
See Tze-Kit Mui v. Massachusetts Port Auth., 478 Mass. 710, 712
(2018) ("ordinarily we will not add language to a statute where
the Legislature itself has not done so"), citing Dartt v.
Browning–Ferris Indus., Inc. (Mass.), 427 Mass. 1, 9 (1998)
(court will not add language to statute that Legislature could
have, but did not, include). Accord District Att'y for the
Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 633
(1985), quoting 2A C. Sands, Sutherland Statutory Construction
§ 47.11 (4th ed. 1984) (exceptions to statutes "are not to be
implied"). Accord Porter v. Nowak, 157 F.2d 824, 825 (1st Cir.
1946), quoting United States v. Goldenberg, 168 U.S. 95, 103
(1897) ("No mere omission, no mere failure to provide for
contingencies, which it may seem wise to have specifically
provided for, justify any judicial addition to the language of
the statute"). "Had the Legislature intended to remove this
shield and expose contractors to indefinite liability for claims
13
arising long after the completion of their work, it would have
said so explicitly." Bridgwood, 480 Mass. at 357–358.8
Our conclusion is bolstered by the fact that the
Legislature has expressly provided for an exception in another,
similar statute of repose. See G. L. c. 260, § 4 (statute of
repose applicable to medical malpractice actions excludes
actions arising from foreign object left in body); Joslyn, 445
Mass. at 350 ("the Legislature allowed only one exception to the
statute of repose, that pertaining to actions arising from a
foreign object left in the body"). The fact that the
8 The plaintiffs argue, relying on Klein v. Catalano, 386
Mass. 701, 717 (1982), that GE is not protected by § 2B because
it was in "control" of the improvement to real property at the
time Wayne Oliver was exposed to the asbestos-tainted
insulation. We are not persuaded. In Klein, we noted that the
Legislature could have reasonably concluded that it was
appropriate to place different time limits on the liability of
builders and other design professionals "from those placed on
persons in possession or control as owner, tenant, or otherwise"
because "[a]fter . . . acceptance of the work by the owner,
there exists the possibility of neglect, abuse, poor
maintenance, mishandling, improper modification, or unskilled
repair of an improvement to immovable property by the owner,
lessor or tenant," which could result in an injury that could
not be prevented by the builder or design professional. Id. at
715-716. We noted also that the Legislature could have
reasonably concluded that "[a] limit on liability may be
necessary to encourage those professionals to experiment with
new designs and materials." Id. at 717. We did not, and do
not, suggest that the degree of control over the improvement at
the time of the alleged negligence should weigh on the
consideration of whether a builder or other design professional
is covered by the statute. Indeed, it would seem that in every
case the defendant would have some degree of control over the
improvement for its actions to give rise to a viable claim of
deficiency or negligence.
14
Legislature saw fit to specify an exception to the statute of
repose applicable to medical malpractice actions and did not
similarly do so in the circumstances of this case strengthens
the inference that no exceptions were intended here. Joslyn,
445 Mass. at 350. See Fernandes, 470 Mass. at 129 ("The
omission of particular language from a statute is deemed
deliberate where the Legislature included such omitted language
in related or similar statutes").
Moreover, had the Legislature wanted to exempt claims
arising from negligence involving asbestos from § 2B
specifically, it has demonstrated that it knows how to do so.
In G. L. c. 260, § 2D, the so-called asbestos revival statute,
see Commonwealth v. Owens-Corning Fiberglas Corp., 38 Mass. App.
Ct. 600, 603 (1995), the Legislature established special time
periods during which the Commonwealth and its subdivisions could
bring an action, otherwise time-barred by § 2B, to recover the
cost of asbestos removal from public buildings.9 See Boston v.
Keene Corp., 406 Mass. 301, 303 (1989) (Keene); Owens-Corning
9 General laws c. 260, § 2D, provides:
"Any action brought by . . . the [C]ommonwealth or any
other political subdivision thereof to recover any costs
associated with asbestos related corrective actions . . .
shall be commenced only within six years next after . . .
the [C]ommonwealth or any other political subdivision
thereof knew of the presence of and the hazard or damage
caused by the presence of such asbestos or material
containing asbestos within its buildings."
15
Fiberglas Corp., 38 Mass. App. Ct. at 603-604. The effect of
the legislation was, among other things, to revive asbestos
claims on which the statute of repose period set forth in § 2B
had already run. Id. at 603. That the Legislature excepted the
Commonwealth from the ambit of § 2B, if only in limited
circumstances and for only a limited time, and did not similarly
except private plaintiffs in those or any circumstances,
reinforces our conclusion that the Legislature did not intend to
establish an exception here. Moreover, we noted in Keene that
in declining to provide a similar benefit to private plaintiffs,
the Legislature "could well have concluded that the asbestos
problem was most acute in public buildings, and thus decided to
address that aspect of the crisis first." Keene, 406 Mass. at
309. If the Legislature sees fit to likewise afford relief to
private plaintiffs, now or in the future, then it is the
Legislature's exclusive prerogative to do so. Joslyn, 445 Mass.
at 352 ("No exceptions ought to be made [to a statute of
repose], unless they are found therein; and if there are any
inconveniences or hardships growing out of such a construction,
it is for the [L]egislature, which is fully competent for that
purpose, and not for the court, to apply the proper remedy").
See Keene, supra, quoting Mobil Oil Corp. v. Attorney Gen., 361
Mass. 401, 417 (1972) ("When legislative authority is exerted
within a proper area, it need not embrace every conceivable
16
problem within that field. The Legislature may proceed one step
at a time, addressing itself to the phase of the problem which
seems most acute to the legislative mind").
"As we have stated previously, we recognize that statutes
of repose 'may impose great hardship on a plaintiff who has
suffered injury and has a meritorious claim' but who does not
suffer or discover the injury within the period permitted for
initiation of suit." Joslyn, 445 Mass. at 351, quoting Klein,
386 Mass. at 713. Notwithstanding this harsh reality, we do not
interpret statutes based on such concerns. See Bridgwood, 480
Mass. at 353 ("Since deciding Klein, we have consistently
enforced statutes of repose according to their plain terms,
despite the hardship they may impose on plaintiffs"); Klein,
supra ("In upholding [§ 2B], we realize that in some cases this
statute may impose great hardship on a plaintiff who has
suffered injury and has a meritorious claim. However,
'arguments as to hardship . . . are appropriate respecting the
enactment of legislation. They are not controlling in the
interpretation of existing statutes.'" [citation omitted]).
Accord Joslyn, supra at 351-352, quoting Zayre Corp. v. Attorney
Gen., 372 Mass. 423, 433 (1977) (principle of judicial restraint
includes recognition of inability and undesirability of
judiciary substituting its notions of correct policy for that of
popularly elected Legislature); Keene, 406 Mass. at 305 ("The
17
sole issue is whether the statute falls within the legislative
power to enact, not whether it comports with a court's idea of
wise or efficient legislation").
Although the six-year time limit "is in some manner
arbitrary," it is the Legislature's task to draw the line, not
ours (citation omitted). Joslyn, 445 Mass. at 351. See
Rudenauer, 445 Mass. at 359 (court will not undo Legislature's
"studied determination"). Our obligation is to adhere to the
terms of the statute "and not, upon imaginary equitable
considerations, to escape from the positive declarations of the
text" (citation omitted). Joslyn, supra at 352. If doing so
results in any "inconveniences or hardships," then it is for the
Legislature, not for the court, to resolve10 (citation omitted).
Id.
Conclusion. We answer the certified question as follows:
Section 2B completely eliminates all tort claims arising out of
any deficiency or neglect in the design, planning, construction,
or general administration of an improvement to real property
after the established time period has run, even if the cause of
action arises from a disease with an extended latency period and
The plaintiffs point out that a number of other State
10
Legislatures have effectively exempted asbestos-related
illnesses from their respective statutes of repose concerning
improvements to real property. We encourage our Legislature to
consider doing the same should it determine that such an
exception is consonant with the Commonwealth's public policy.
18
even if a defendant had knowing control of the instrumentality
of injury at the time of exposure.
The Reporter of Decisions is to furnish attested copies of
this opinion to the clerk of this court. The clerk in turn will
transmit one copy, under the seal of the court, to the clerk of
the United States District Court for the District of
Massachusetts, as the answer to the question certified, and will
also transmit a copy to each party.