Nora M. Barraford v. T&N Limited et al

Filing 77

Judge F. Dennis Saylor, IV: MEMORANDUM & ORDER entered granting defendants' 49 Motion for Judgment on the Pleadings. (Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
NORA M. BARRAFORD,
)
Individually and as Executrix of the
)
Estate of DANIEL M. BARRAFORD, by
)
her agent THE FEDERAL-MOGUL
)
Civil Action No.
ASBESTOS PERSONAL INJURY TRUST, )
12-cv-10013-FDS
)
Plaintiff,
)
)
v.
)
)
T&N LIMITED,
)
f/k/a T&N PLC, f/k/a Turner & Newall Plc, )
and f/k/a Turner & Newall Limited; and
)
TAF INTERNATIONAL LIMITED,
)
f/k/a Turners Asbestos Fibres Limited, and )
Raw Asbestos Distributors Limited,
)
)
Defendants.
)
_______________________________________)
)
KATHERINE LYDON,
)
Individually and as Executrix of the
)
Estate of JOHN T. LYDON, JR., by
)
her agent THE FEDERAL-MOGUL
)
Civil Action No.
ASBESTOS PERSONAL INJURY TRUST, )
12-cv-10014-FDS
)
Plaintiff,
)
)
v.
)
)
T&N LIMITED,
)
f/k/a T&N PLC, f/k/a Turner & Newall Plc, )
and f/k/a Turner & Newall Limited; and
)
TAF INTERNATIONAL LIMITED,
)
f/k/a Turners Asbestos Fibres Limited, and )
Raw Asbestos Distributors Limited,
)
)
Defendants.
)
_______________________________________)

MEMORANDUM AND ORDER ON MOTION FOR JUDGMENT ON
THE PLEADINGS AS TO CLAIMS OF PLAINTIFF NORA BARRAFORD
SAYLOR, J.
This is a product liability action arising out of alleged asbestos exposure. Jurisdiction is
based on diversity of citizenship. In the 1960s and 1970s, Daniel Barraford worked as an
electrician and senior engineer on the construction of the Prudential Center in Boston. He died
in 2002 as a result of mesothelioma. His widow, Nora Barraford, has brought suit, contending
that asbestos products produced by T&N Limited and TAF Limited International caused or
contributed to her husband’s illness and death.
The complaint asserts six claims: negligence; breach of express and implied warranties;
fraudulent concealment; malicious, willful, wanton, and reckless conduct or gross negligence;
wrongful death; and loss of consortium. Defendants have moved for judgment on the pleadings
on the ground that the limitations period has expired. For the reasons set forth below, the motion
will be granted.
I.

Factual Background
A more extensive discussion of the facts can be found in the Court’s September 24, 2013

memorandum and order on defendants’ motion for summary judgment. A brief summary of the
facts relevant to this motion are included here, presented in the light most favorable to the nonmoving party, the plaintiff.
A.

The Parties

Plaintiff Nora Barraford is the widow and the executrix of the estate of Daniel Barraford.
She asserts her claim through her agent, the Federal-Mogul Asbestos Personal Injury Trust (the
“Trust”), a Delaware statutory trust.
2

Defendant T&N Limited, formerly known as Turner & Newall Plc, T&N PLC, and
Turner & Newall Limited (“T&N”), and defendant TAF International Limited, formerly known
as Turners Asbestos Fibres Limited and Raw Asbestos Distributors Limited (“TAF”), are foreign
corporations.
B.

Daniel Barraford

From the early 1960s to the 1970s, Daniel Barraford worked for the Prudential Insurance
Company of America as a senior engineer. He worked on the construction of the Prudential
Center in Boston, Massachusetts, which was completed in 1964. Various products that
contained asbestos were used to construct the buildings, including Sprayed Limpet Asbestos, a
product manufactured and sold by defendants. According to plaintiff, because Daniel Barraford
was present on a regular basis at the site while Limpet was being sprayed, he repeatedly inhaled
or ingested asbestos fibers.
In September 2002, doctors diagnosed Daniel Barraford with a malignant right pleural
mesothelioma. He died on October 23, 2002, of mesothelioma and related complications.
Plaintiff alleges that his disease was caused by his exposure to Limpet and other asbestoscontaining products.
C.

Prior Litigation

In 1988, T&N and TAF became a member of the Center for Claims Resolutions, Inc.,
(“CCR”), a consortium of former asbestos manufacturers.1 In 1993, the CCR, as defendants’
agent, entered into two National Class Action Settlement Agreements. One of those settlements
involved a purported class of persons who had been exposed to asbestos and not yet filed suit.
1

For a discussion of the CCR, see generally Amchem Products, Inc. v. Windsor, 521 U.S. 591, 599-601

(1997).

3

Daniel Barraford, presumably, was a member of the class, having been allegedly exposed to
asbestos in the 1960s. The 1993 settlement agreement, among other things, tolled the limitations
period as to the claims of all class members.2 The district court conditionally certified an opt-out
class and appointed as class counsel members of the Ness Motley law firm.
In 1996, the class certification was overturned by the Third Circuit. That action nullified
the settlement by its own terms. See Georgine v. Amchem Products, Inc., 83 F.3d 610 (3d Cir.
1996), aff’d sub nom. Amchem Prods. v. Windsor, 521 U.S. 591 (1997). The class was formally
decertified in August 1997.
In July 2000, the CCR and the Ness Motley law firm, which had been appointed as class
counsel and which apparently represented a large number of plaintiffs, entered into an
agreement.3 Specifically, they agreed to extend the tolling agreement set forth in the 1993
settlement agreement as to “claims represented by [Ness Motley].” The extension was from May
5, 1996, the date of the Third Circuit’s decision in Georgine, “until such time” as Ness Motley
received “written notification from the CCR that the tolling agreement extension is terminated.”
(Pl. Opp., Ex. D).4 There is no evidence that Daniel Barraford or his wife were clients of Ness

2

In 1993 and 1995, Ness Motley and the CCR entered into two other agreements that essentially tolled the
statute of limitations for Ness Motley clients who made future claims based on non-malignant diseases against
members of the CCR and allowed them to participate in Alternative Dispute Resolution with the CCR in the event
that the Georgine settlement was overturned. (See Pl. Opp., Exs. C, M). The agreements do not appear to apply to
plaintiff, because Daniel Barraford was diagnosed with a malignant disease, mesothelioma.
3

Plaintiff also submitted a copy of a letter dated February 16, 2000, from Joseph Rice of Ness Motley to an
individual at the CCR that begins, “Enclosed please find a letter I am proposing concerning our long standing tolling
agreement.” (Pl. Ex. E). The enclosure does not appear to be part of the record.
4

The 1993 settlement agreement and the July 2000 letter refer to “T&N plc,” but not TAF or any
predecessor entities. Both parties appear to assume that T&N and TAF should be treated the same for these
purposes.

4

Motley in July 2000.5
On October 1, 2001, Federal-Mogul Global, Inc., and its subsidiaries, which included
T&N and TAF, filed a bankruptcy petition under Chapter 11. The bankruptcy petition imposed
an automatic stay on all pending claims and litigation against Federal-Mogul and its subsidiaries.
(Def. Memo., Ex. B-1 at 3).
The following day (October 2, 2001) Federal-Mogul terminated its membership in the
CCR. (Def. Reply, Exs. A, D). The CCR’s governing documents provide as follows:
Upon suspension or termination of membership and thereafter, a Center Member
shall have none of the rights or obligations of a Center Member . . . except that,
notwithstanding termination of membership, a Center Member . . . shall continue
to have and to honor all of the obligations incurred by it hereunder and under the
Original Producer Agreement or on its behalf as a Center Member prior to the
effective date of its membership termination . . . .
(Def. Reply, Ex. C at 3-4; see also Pl. Opp., Ex. L at 9).
One of the assets owned by T&N and TAF was an insurance policy that had been
purchased in 1996 from Curzon Insurance Company, called the “Hercules Policy.” The parties
covered by that policy, including defendants, are referred to as “Hercules Protected Entities”
(“HPE”). The Hercules Policy indemnified HPEs for asbestos claims in excess of the “Retained
Limit.”
As noted, Daniel Barraford was diagnosed with mesothelioma in September 2002, and
died in October 2002, after the bankruptcy petition was filed. On October 18, 2004, Nora
Barraford, individually and as executrix of the estate of Daniel Barraford, filed an asbestos
exposure-related action in Massachusetts Superior Court against thirty defendants. Her

5
Plaintiff is, however, represented in the present action by the successor to the Ness Motley law firm, now
called Motley Rice LLC.

5

complaint did not name either T&N or TAF as a defendant (both were in bankruptcy) and she
did not seek relief from the automatic stay in the bankruptcy court in order to do so. There is no
evidence that either Daniel or Nora Barraford filed a claim in the bankruptcy proceeding.
The Bankruptcy Court approved a plan of reorganization for Federal-Mogul (the “Plan”)
that, in part, created a process for handling asbestos-related claims. (Def. Memo., Exs. B, C).
Article 4 of the Plan created the Trust. The Plan provided that each holder of an “Asbestos
Personal Injury Claim” was deemed to have assigned to the Trust the proceeds of that claim,
discharged all other obligations and liabilities of the HPEs to those holders, and appointed the
Trust to assert such a claim, now called a “Debtor HPE Asbestos Claim,” against the reorganized
HPEs, which include T&N and TAF. The Plan, after approval by the District Court, became
effective December 27, 2007. (Def. Memo., Ex. E).
D.

Procedural History

On November 22, 2011, the Trust, on behalf of Nora Barraford, filed the present action
against defendants T&N and TAF in the Massachusetts Superior Court. On January 4, 2012,
defendants removed the action to this Court on the basis of diversity jurisdiction.
The Court entered a scheduling order on November 5, 2012, pursuant to Fed. R. Civ. P.
16. The scheduling order imposed deadlines for certain pre-trial events, including an April 12,
2013 deadline for the filing of dispositive motions. (Dkt. No. 20). Defendants moved for
summary judgment on the ground that plaintiff failed to provide sufficient proof of causation.
The Court denied the motion on September 24, 2013. (Dkt. No. 37).
II.

Analysis
Defendants have now moved for judgment on the pleadings under Fed. R. Civ. P. 12(c).

6

Although defendants have moved under Rule 12(c), the exhibits attached to their motion and the
facts referred to in their supporting memorandum go well beyond the limited allegations of the
complaint and answer. Under Rule 12(d), courts may treat such motions as motions for
summary judgment.6 The fact that a party has submitted additional materials outside the
pleadings is sufficient notice that the motion will be converted to a summary judgment motion.
Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 38 (1st Cir. 2004). The decision whether to
exclude the materials is within the court’s discretion. Trans–Spec Truck Serv. v. Caterpillar
Inc., 524 F.3d 315, 321 (1st Cir. 2008).
The parties here have had an opportunity to conduct discovery, and plaintiff has
responded in full to defendants’ motion, and have presented additional evidence outside the
pleadings. Accordingly, the Court will apply the standard of review applicable to motions for
summary judgment under Rule 56.
Summary judgment is appropriate when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that “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). The Court
must view “the record in the light most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). 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) (quoting Fed. R. Civ. P. 56(e)). The non-moving party may not simply

6

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

7

“rest upon mere allegation or denials of his pleading,” but instead must “present affirmative
evidence.” Id. at 256–57.
Initially, plaintiff challenges defendants’ motion on procedural grounds. Plaintiff
contends that because defendants filed this motion long after the April 2013 dispositive motion
deadline, the Court should deny it as untimely. This filing is undoubtedly belated; indeed,
defendants submitted the motion after the initial pretrial conference, which among other things
had the effect of delaying the trial. It would be well within the discretion of this Court simply to
deny the motion as untimely. See Moringlane-Ruiz v. Trujillo-Panisse, 232 F. App’x 8, 9 (1st
Cir. 2007). However, denying the motion on that ground would not resolve the issue; the matter
would merely become a question for trial. Such an outcome would be highly inefficient if, as
defendants contend, the statute of limitations does in fact bar the suit. Under the circumstances,
the Court will decide the motion on the merits.7
The parties here agree that the limitations period applicable to plaintiff’s claims is three
years after accrual of the claim. Mass. Gen. Laws ch. 229, § 2; Mass Gen. Laws ch. 260, § 2A;
Riley v. Presnell, 409 Mass. 239, 243 (1991). The latest possible date that the limitations period
could have begun to run is October 23, 2002, the date of Mr. Barraford’s death. Therefore, the
limitations period expired on October 23, 2005, at the latest, unless some form of tolling applies.

7

Defendants make the argument that this Court would lack subject-matter jurisdiction over the matter if the
claims were barred by the statute of limitations. (Def. Memo. at 6.) That contention is clearly incorrect. It is wellestablished that the statute of limitations is an affirmative defense. Fed. Deposit Ins. Corp. v. Cardona, 723 F.2d
132, 134-35 (1st Cir. 1983). See Silvestris v. Tantasqua Reg’l Sch. Dist., 446 Mass. 756, 766 (2006) (recognizing
that the statute of limitations is an affirmative defense that properly is raised in a defendant’s answer to the
complaint). As such, it “does not affect a court’s subject matter jurisdiction.” Vega-Encarnacion v. Babilonia, 344
F.3d 37, 42 (1st Cir. 2003) (rejecting defendant’s argument that limitations period on Bivens action had expired
thereby relieving district court of subject-matter jurisdiction). But see Braun v. Yaratz, 2010 WL 3824109, at *2 (D.
Mass. Sept. 24, 2010) (dismissing pro se complaint on ground that a district court “lacks subject matter jurisdiction
over diversity claims that fall outside the applicable statute of limitations”).

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Plaintiff contends that the limitations period should be tolled for three reasons: (1) the
Bankruptcy Code imposed a stay that has not been lifted; (2) the July 2000 letter agreement
between Ness Motley and the CCR tolled the limitations period; and (3) the claim should be
subject to equitable tolling.
A.

Bankruptcy Code

When an entity files for bankruptcy, a stay of all legal proceedings automatically goes
into effect. 11 U.S.C. § 362. Absent a court granting relief, the stay remains in effect in a
Chapter 11 case until the earliest of three enumerated events: (1) “the time the case is closed”;
(2) “the time the case is dismissed”; or (3) “the time a discharge is granted or denied.” 11 U.S.C.
§ 362(c)(2)(C).
The confirmation of a plan of reorganization under Chapter 11 “discharges the debtor
from any debt that arose before the date of such confirmation.” 11 U.S.C. § 1141(d)(1)(A).
Usually, such a confirmation also lifts the automatic stay. McKinney v. Waterman S.S. Corp.,
925 F.2d 1, 4 (1st Cir. 1991). In place of the stay, a discharge “operates as an injunction against
the continuation or commencement” of actions that arose prior to the date of discharge. 11
U.S.C. § 524(a). The bankruptcy court may issue additional injunctions to “supplement the
injunctive effect of a discharge” in cases where the plan of reorganization establishes a trust that
assumes the debtor’s liabilities for asbestos-related tort claims in order to deal equitably with
claims and future demands. 11 U.S.C. § 524(g).
While the automatic stay is in effect, new claims against the debtor may arise. To
prevent a debtor from avoiding liability for such claims by remaining in bankruptcy until the
relevant limitations periods have run, § 108(c) of the Bankruptcy Code provides:

9

[I]f applicable nonbankruptcy law, an order entered in a nonbankruptcy
proceeding, or an agreement fixes a period for commencing or continuing a civil
action in a court other than a bankruptcy court on a claim against the debtor . . .
and such period has not expired before the date of the filing of the petition, then
such period does not expire until the later of—
(1) the end of such period, including any suspension of such period
occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay under
section 362 . . . of this title . . . with respect to such claim.
11 U.S.C. § 108(c).
Here, defendants filed for bankruptcy on October 1, 2001, triggering the automatic stay.
On October 23, 2002, while defendants remained in bankruptcy, Daniel Barraford died. But for
the bankruptcy, the three-year limitations period would have expired, at the latest, on October
23, 2005. The bankruptcy court and the district court then confirmed the Plan, effective
December 27, 2007, and defendants emerged from bankruptcy. (See Def. Memo., Exs. C, D, E).
The parties disagree as to the effect of the confirmation of the Plan on plaintiff’s claim.8
The parties agree that the bankruptcy case was neither closed nor dismissed; the question is
whether a discharge was granted or denied. Plaintiff contends that the courts discharged some
but not all claims against defendants, and that her asbestos claim is one of the claims that was
not discharged. Under that theory, plaintiff asserts that her claim remains subject to the
jurisdiction of the bankruptcy court and to the effect of the automatic stay, extending the
limitations period through the present day.
Plaintiff reads 11 U.S.C. §§ 108(c) and 362(c)(2) together to provide that an automatic
stay will continue “until such time as the claim is closed [or] dismissed, or the discharge of the
8
The parties appear to agree that plaintiff’s claim here for asbestos-related damages is a “claim” within the
meaning of 11 U.S.C. § 101(5).

10

claim is granted or denied.” (Pl. Opp. at 15 (emphasis added)). In fact, § 362 does not refer to
“claims,” but to “cases”; the automatic stay is terminated when the “case” is closed or dismissed
(or a discharge is granted or denied). The bankruptcy court grants “a” discharge, not multiple
“discharges,” to a debtor. See In re Cardillo, 172 B.R. 146, 151 (Bankr. N.D. Ga. 1994)
(“Bankruptcy courts do not grant or deny ‘a discharge’ piecemeal and do not grant or deny
‘discharges’ to a debtor.”); cf. In re Parker, 334 B.R. 529, 536 (Bankr. D. Mass. 2005).
The reference to a “claim” in § 108(c)(2) cannot be imported wholesale into § 362. That
section addresses extensions of limitations periods when the stay has been terminated or expired;
it does not address what causes the automatic stay to terminate or expire. The automatic stay can
be terminated under § 362(d) as to particular claims—for example, in connection with individual
requests for relief from the stay. See 11 U.S.C. § 362(d). Thus, if a party is granted relief from
the automatic stay under § 362(d) to pursue a cause of action against the debtor, then the 30-day
time period under § 108(c)(2) would begin to run “with respect to such claim.” But § 108(c)(2)
does not change the meaning of § 362, or create or extend the stay itself.
It is true that the bankruptcy court here retained jurisdiction over the case. But its
jurisdiction was limited to overseeing the implementation of the Plan. And the language of the
Plan is not to the contrary, although some discussion is required to explain why. Article 4 of the
Plan established the Trust and a process for adjudicating pending and future asbestos-related
claims against defendants. (Def. Mem., Ex. C, Art. 4). From the effective date of the Plan until
the later of the “Hercules Policy Expiry Date” and the “EL Asbestos Insurance Expiry Date”
(essentially, the date when the insurance and other assets run out), defendants retained liability
for such claims, termed Asbestos Personal Injury Claims, but with the ability to assert any

11

defenses and with recourse only to certain assets. Id. §§ 4.5.6, 4.5.8, 4.5.10. The Plan assigned
such claims from injured persons to the Trust, appointed the Trust to assert the claims, and gave
those injured persons a right to make a demand upon the Trust. Id. §§ 4.5.8-10. The court
entered a channeling injunction to ensure compliance with those procedures pursuant to §
524(g). (Def. Mem., Ex. E). Cf. In re W.R. Grace & Co., 475 B.R. 34, 94-108 (D. Del. 2012)
(discussing channeling injunctions).
Somewhat confusingly, the Plan states that on the later of the Expiry Dates, defendants
will automatically “be discharged and released from any and all liability with respect to
Asbestos Personal Injury Claims,” for which the Trust will then assume liability. (Def. Mem.,
Ex. C, § 4.5.20 (emphasis added)). Plaintiff reads this subsection to mean that her claim has not
been discharged, and that therefore the automatic stay remains in effect. However, it does not
necessarily follow that because defendants may still be liable, a discharge under the Bankruptcy
Code did not occur in December 2007, when the plan was confirmed. At the very least, the Plan
both denied a discharge with respect to Debtor HPE Asbestos Claims up to the availability of the
Hercules Policy and granted an automatic discharge with respect to such claims upon the
occurrence of the Hercules Policy Expiry Date. Under the Plan, no further court order was
necessary for the full discharge of all claims to be in effect.
The imposition of a channeling injunction is a clear indication that a discharge was
granted or denied and the automatic stay lifted. Section 524(g) states that “a court that enters an
order confirming a plan of reorganization under chapter 11 may issue, in connection with such
order, an injunction in accordance with this subsection to supplement the injunctive effect of a
discharge under this section.” 11 U.S.C. § 524(g) (emphasis added). In other words, an

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injunction may be put in place in conjunction with a discharge. An injunction would be
unnecessary if the automatic stay were still in place. Furthermore, it is noteworthy that plaintiff
has not acted as if the automatic stay is still in place; the Trust was not required to, and did not,
seek leave of the Bankruptcy Court before filing this action.
In short, as of December 27, 2007, the effective date of the Plan, defendants were granted
a discharge and the automatic stay was lifted. Because the limitations period for plaintiff’s claim
had expired while defendants were in bankruptcy, plaintiff had thirty days from December 27,
2007, to file suit, under the provisions of the Plan, unless another nonbankruptcy law or
agreement extended the period to file. 11 U.S.C. § 108(c)(2). Plaintiff did not file this action
until November 2012, nearly five years after that thirty-day window expired. Accordingly, the
Bankruptcy Code does not operate to save plaintiff’s claims from dismissal on statute of
limitations grounds.
B.

Tolling Agreement

If the Bankruptcy Code itself did not extend the time to file, plaintiff contends that the
CCR-Ness Motley tolling agreement does.9 The agreement is embodied in a July 17, 2000 letter,
signed by Michael F. Rooney on behalf of the CCR and attorney Joseph Rice of Ness Motley. It
provides as follows:
This letter confirms and memorializes that the CCR defendants . . . , by and
through the CCR, agreed to extend the tolling agreement contained in Section VI

9

Contrary to defendants’ reading of plaintiff’s opposition (Def. Reply at 7), the Court does not understand
plaintiff to be arguing that the 1993 settlement agreement applies here to toll the limitations period. (See Pl. Opp. at
11-13). Instead, the information appears to be background for interpreting the 2000 tolling agreement. However, to
the extent that plaintiff does assert that the 1993 settlement agreement remains in effect, that is incorrect. By its own
terms, the obligations under the agreement ceased when the Third Circuit, affirmed by the Supreme Court,
overturned the judgment approving the stipulation. (See Pl. Opp., Ex. B at 102-03). See Georgine v. Amchem
Products, Inc., 83 F.3d 610 (3d Cir. 1996) aff’d sub nom. Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997).

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of the Stipulation of Settlement as to claims represented by [Ness Motley] from
May 5, 1996, the date of Georgine v. Amchem Products, Inc., 83 F.3d 610 (3rd
Cir. 1996). This letter further confirms and memorializes that this agreement to
extend the tolling agreement continues until such time as [Ness Motley] receives
written notification from the CCR that the tolling agreement extension is
terminated.
(Pl. Opp., Ex. D). The agreement as a whole is brief. It does not specify which “claims” Ness
Motley represented. And it does not address the effect of an individual member’s withdrawal
from the CCR.10
The phrase “claims represented by [Ness Motley]” is unclear at best. Attorneys represent
clients, not claims. Neither Nora nor Daniel Barraford was a client of Ness Motley in July 2000,
or for that matter at any point between May 1996 and July 2000. Under the 1993 settlement and
the Georgine district court’s class-certification decision, Ness Motley attorneys were class
counsel representing a class of persons with future claims—which would appear to include the
Barrafords. See Georgine, 83 F.3d at 616, 619. But as of 1996, when that settlement was
overturned, and 1997, when that class was decertified, Ness Motley no longer represented a class
of persons. At that time, the firm only represented certain specific individual clients, which did
not include either Nora nor Daniel Barraford. At most, Ness Motley could enter into a tolling
agreement only as to their own clients, not as to the no-longer-existing class. Put simply, that
law firm had no authority to act on behalf of the Barrafords in July 2000.
The letter does not indicate the effect of a defendant’s withdrawal from the CCR.11 The
10

The task of the Court in resolving these ambiguities is made more difficult because the parties do not
suggest which state’s law should be applied to interpret the agreement. However, it suffices for present purposes to
apply generally-accepted principles of contract law.
11

The February 16, 2000 letter from attorney Rice to the CCR about the “long standing tolling agreement”
states that he will “contact the withdrawing members of the CCR,” “ask them if they wish to continue the tolling or
should [he] deem it terminated as to those defendants,” and “then take legal action . . . as we deem appropriate.” (Pl.
Opp., Ex. E). Although defendants here were not the withdrawing members referred to in the letter, this language

14

governing document for the CCR provides grounds for terminating membership, and states as
follows:
Upon termination of membership and thereafter, a Participating Producer shall
have none of the rights or obligations of a member of the Center . . . . However,
notwithstanding termination of membership, a Participating Producer shall
continue to have and to honor all of the obligations incurred by it hereunder or on
its behalf as a member prior to the effective date of its membership termination,
including any retroactive adjustments of its percentage shares of liability
payments and allocated expenses . . . .
(Pl. Opp., Ex. L). It is arguable that the tolling agreement, to the extent it exists, is an
“obligation” of defendants incurred “on [their] behalf as a member.” But, as noted, the tolling
agreement did not cover the Barrafords. And defendants here withdrew from the CCR in
October 2001, before the wrongful-death claim had even accrued. Furthermore, the use of the
word “incur,” which has a financial connotation, and the examples of financial obligations to the
CCR, suggest that only those types of obligations and not all contracts will continue. It is at the
very least doubtful whether the tolling agreement, if any, survived defendants withdrawal from
the CCR. In any event, there is no tolling agreement extending the limitations period as to
plaintiff’s claims.
C.

Equitable Tolling

Finally, plaintiff contends that applying the statute of limitations here would be
inequitable because defendants were aware, when they sought bankruptcy protection, that many
persons in her situation would be delayed in pursuing their claims. (Pl. Opp. at 23-24). She
therefore urges the Court to apply principles of equitable estoppel to preclude defendants from
asserting a statute of limitations defense.

also suggests that the tolling agreement as to defendants’ did not survive their later withdrawal.

15

The doctrine of equitable tolling extends deadlines “if a plaintiff exercising reasonable
diligence could not have discovered information essential to the suit.” Bernier v. Upjohn Co.,
144 F.3d 178, 180 (1st Cir. 1998) (citing Protective Life Ins. Co. v. Sullivan, 425 Mass. 615
(1997)). It operates to prevent “results contrary to good conscience and fair dealing.” McLearn
v. Hill, 276 Mass. 519, 524 (1931). That said, “[t]he law does not regard estoppels with favor,
nor extend them beyond the requirements of the transactions in which they originate.” Boston &
Albany Railroad v. Reardon, 226 Mass. 286, 291 (1917).
Here, the evidence demonstrates that Nora Barraford was aware of the basic underlying
facts of her claim by October 23, 2002, at the latest. Indeed, she filed an asbestos-related lawsuit
in state court against other parties out of the same core set of facts in 2004. While she could not
have filed a suit against T&N and TAF at that time, due to the bankruptcy, she has presented no
evidence that defendants misled her to prevent her from filing suit, or that she was otherwise
prevented from timely doing so when defendants emerged from bankruptcy.
Accordingly, the doctrine of equitable tolling will not be employed to extend the
limitations period for plaintiff’s claims.
III.

Conclusion
For the foregoing reasons, defendants’ motion for judgment on the pleadings is

GRANTED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: February 25, 2014

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