Oliver v. Metropolitan Life Insurance Company et al

Filing 429

Judge Rya W. Zobel: ORDER of Court and certification of question to the Mass Supreme Judicial Court entered. (Urso, Lisa)

Case 1:15-cv-13490-RWZ Document 429 Filed 05/14/18 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO 15-13490-RWZ

JUNE STEARNS AND CLIFFORD OLIVER,
as Co-Executors of the Estate of WAYNE OLIVER
v.
METROPOLITAN LIFE INSURANCE CO., et al.

ORDER OF COURT AND CERTIFICATION OF QUESTION TO THE
MASSACHUSETTS SUPREME JUDICIAL COURT
May 14, 2018

ZOBEL, S.D.J.
On March 30, 2018, this court entered a Memorandum of Decision (Docket #
413, hereafter cited as “Opinion”) which, inter alia, denied the motion for summary
judgment filed by General Electric Company (“GE”) with respect to Counts I, II, IX, and
X of Plaintiffs’ Third Amended Complaint. Those counts were based upon the alleged
exposure of plaintiffs’ decedent, Wayne Oliver, to asbestos during the construction of
two nuclear power plants, Pilgrim Nuclear Power Station and Calvert Cliffs Nuclear
Power Plant, between 1971 and 1978. 1 The parties agreed that the affected counts are
governed by the substantive law of the Commonwealth of Massachusetts.

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Plaintiffs also asserted claims against GE based upon Mr. Oliver’s alleged exposure to
asbestos onboard certain U.S. Navy vessels while employed by a shipyard. The court granted GE’s
motion for summary judgment on those claims.

Case 1:15-cv-13490-RWZ Document 429 Filed 05/14/18 Page 2 of 3

In its motion for summary judgment on those counts, GE invoked the
Massachusetts statute of repose for improvements to real property, Mass. Gen. Laws
ch. 260, § 2B. Although holding that the GE turbine-generators at issue, including their
insulation materials, were improvements to real property under the statute, this court
stated that “[m]ore vexing is the question whether the statute of repose applies in the
context of a contractor like GE’s asbestos-related work.” Opinion at 8. This was
particularly so because
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 the present to
perform refueling outages every eighteen months. It is thus not entitled to
the same repose deemed reasonable for actors whose connection to the
instrumentality of injury has long since ceased.
Id. at 11.
The court noted that the Massachusetts Supreme Judicial Court “has not
considered the application of the statute of repose to asbestos claims,” id. at 8, and that
the matter “presents a state law issue without controlling precedent whose resolution
may be determinative.” Id. at n.5. Concluding that “it is not at all clear that the six-year
statute of repose was designed to bar a category of claims known uniformly to have a
latency period of at least 20 years,” this court held that GE was not entitled to the
protection of the statute of repose and thus denied GE’s motion for summary judgment
as to plaintiffs’ claims based upon Mr. Oliver’s alleged exposures to GE turbinegenerators at the two nuclear power plants. Id. at 12.
GE subsequently moved this court to certify that portion of its opinion to the
United States Court of Appeals for the First Circuit pursuant to 28 U.S.C. § 1292(b).
Plaintiffs opposed interlocutory appeal, but in the event of any such appeal moved

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Case 1:15-cv-13490-RWZ Document 429 Filed 05/14/18 Page 3 of 3

instead for certification to the Massachusetts Supreme Judicial Court pursuant to its rule
1:03. Because the determinative question is one of Massachusetts law, this court is of
the view that the latter course is more appropriate. Accordingly, and for the reasons
stated in the opinion submitted with this case, the following question is certified to the
Massachusetts Supreme Judicial Court:
whether or not the Massachusetts statute of repose, Gen. Laws ch. 260, §
2B, can be applied to bar personal injury claims arising from diseases with
extended latency periods, such as those associated with asbestos
exposure, where defendants had knowing control of the instrumentality of
injury at the time of exposure.
The Clerk is directed to forward to the Massachusetts Supreme Judicial Court, under
the official seal of this court, a copy of the certified question and the record in this case. 2
This court retains jurisdiction over this issue pending resolution of the certified question.

_______May 14, 2018

__

_________/s/Rya W. Zobel

DATE

____

RYA W. ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

The record shall include the Third Amended Complaint (Docket # 280); GE’s Motion for Summary
Judgment and documents and exhibits filed therewith (## 314, 315, 316); Plaintiffs’ Opposition, Statement of
Material Facts, and exhibits filed therewith (## 358-359); GE’s Response and Reply (# 364-365); Plaintiffs’ Sur-reply
(# 371); and Memorandum of Decision (# 413).
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