Oliver v. Metropolitan Life Insurance Company et al

Filing 451

Judge Rya W. Zobel: MEMORANDUM OF DECISION entered granting 444 Motion for Entry of Judgment under Rule 54(b)ON Counts I, II, IX and X. Judgment may be entered accordingly. (Urso, Lisa)

Case 1:15-cv-13490-RWZ Document 451 Filed 05/14/19 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.
MEMORANDUM OF DECISION
May 14, 2019

ZOBEL, S. D.J.
I.

Background
On March 30, 2018, this court held that the Massachusetts statute of repose,

Mass. Gen. Laws ch. 260, § 2B, did not apply to asbestos exposure claims and denied
defendant General Electric Company’s (“GE”) motion for summary judgment with
respect to Counts I, II, IX, and X of plaintiffs’ Third Amended Complaint. GE sought
interlocutory appeal to the United States Court of Appeals for the First Circuit, but,
because the determinative issue was one of Massachusetts law without controlling
precedent, I certified the following question to the Massachusetts Supreme Judicial
Court (“SJC”):
[W]hether or not the Massachusetts statute of repose ... 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.

Case 1:15-cv-13490-RWZ Document 451 Filed 05/14/19 Page 2 of 3

Docket # 429.
On March 1, 2019, the SJC provided its answer:
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 even if a defendant had knowing control
of the instrumentality of injury at the time of exposure.
Stearns v. Metro. Life Ins. Co., 117 N.E.3d 694, 702 (2019); see also Docket # 443.
In light of the SJC’s ruling, GE moves for entry of judgment in its favor on Counts
I, II, IX, and X – the only counts remaining in this suit. Plaintiffs agree that Counts I, IX,
and X are now clearly barred by the statute of repose, but argue that Count II is not
because it is “a claim that GE breached the implied warranty of merchantability by
manufacturing, selling and supplying a defective product.” Docket # 445.
II.

Discussion
In the March 30, 2018, Memorandum of Decision, this court held that the turbine

generators that GE “designed, manufactured, and sold” were improvements to real
property within the meaning of the statute of repose. Docket # 413. The court also
explained that the “asbestos-containing insulation” could not be separated from GE’s
overall improvements because the insulation was an “integral component” to the
completed turbine generators. Id.
While GE’s activity was thus facially covered by the statute of repose, I held that
the statute was not intended to apply to personal injury claims caused by asbestos
exposure. The fact that the SJC has now clarified that § 2B applies with equal force to
such claims does not affect this court’s previous determination that the insulation is
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subsumed by and cannot be separated from GE’s overall real property improvements.
However, plaintiffs now attempt to save Count II by singularly focusing on GE’s supply
of the insulation.
The SJC and the First Circuit have rejected similar attempts by plaintiffs to
circumvent § 2B by suing a defendant for product liability as a supplier when the
defendant’s role in a project was not so limited. Snow v. Harnischfeger Corp., 12 F.3d
1154 (1st Cir. 1993) (designer and manufacturer of crane was a protected actor under §
2B and statute thus barred implied breach of warranty claim where the underlying
cause of action was the same as the tort claim); McDonough v. Marr Scaffolding Co.,
591 N.E.2d 1079 (1992) (plaintiffs could not evade statute of repose by identifying
defendant, who assembled and installed custom bleacher units for a rink, by reference
to its limited status as a supplier of the bleachers). Like the defendants in Snow and
McDonough, GE’s activity, which included designing, planning, and constructing the
particularized generators, make it a protected actor under § 2B. GE’s role as a supplier
of the insulation was merely “incidental” to these activities and, as such, plaintiffs
cannot "recast their negligence claim in the form of a warranty claim." McDonough, 591
N.E.2d at 1083.
III.

Conclusion
GE’s motion for entry of judgment (Docket # 44) on Counts I, II, IX, and X is

ALLOWED. Judgment may be entered accordingly.
_______May 14, 2019_______

__________/s/Rya W. Zobel______

DATE

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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