Stearns v. Metro. Life Ins. Co.

481 Mass. 529

117 N.E.3d 694

June STEARNS, Coexecutrix,¹ & Another²

v.METROPOLITAN LIFE INSURANCE COMPANY & Others.³

SJC-12544

Supreme Judicial Court of Massachusetts, Suffolk..

Argued December 4, 2018.

Decided March 1, 2019.

John A. Heller, of Illinois (Catherine A. Mohan & Benjamin M. Greene, Boston, also present) for General Electric Company.

Michael J. McCann, Boston (Michael C. Shepard, Boston, Lisa M. Conserve, & Erika A. O'Donnell also present) for the plaintiffs.

John R. Felice, Boston & 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, Boston, for Massachusetts Asbestos Litigation Defendants' Liaison Counsel.

Thomas R. Murphy, Salem, Kevin J. Powers, & John G. Mateus for Massachusetts Academy of Trial Attorneys.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

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 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, 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 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 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, 840 N.E.2d 518 (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, 106 N.E.3d 661 (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, 105 N.E.3d 224 (2018). See Sisson v. Lhowe, 460 Mass. 705, 709, 954 N.E.2d 1115 (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 [quotations and citation omitted] ); Joslyn v. Chang, 445 Mass. 344, 347, 837 N.E.2d 1107 (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, 105 N.E.3d 224, quoting Nett v. Bellucci, 437 Mass. 630, 635, 774 N.E.2d 130 (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, 487 N.E.2d 488 (1986). See Bridgwood, supra at 352, 105 N.E.3d 224 (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, 774 N.E.2d 130. See, e.g., Rudenauer v. Zafiropoulos, 445 Mass. 353, 358, 837 N.E.2d 278 (2005) (medical malpractice statute of repose not subject to tolling, even where medical treatment is ongoing); Joslyn, 445 Mass. at 350-351, 837 N.E.2d 1107 (statute of repose not subject to any form of equitable estoppel or tolling, even in instances of fraudulent concealment); Sullivan v. Iantosca, 409 Mass. 796, 798-799, 569 N.E.2d 822 (1991) (statute of repose bars action even if knowing and intentional wrongdoing is involved); Tindol, 396 Mass. at 517-518, 487 N.E.2d 488 (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, 774 N.E.2d 130. See Sisson, 460 Mass. at 716, 954 N.E.2d 1115. We previously concluded, and do so again, that § 2B is no exception to these rules. Bridgwood, 480 Mass. at 353, 105 N.E.3d 224 ( § 2B protects contractors from claims arising long after completion of work); Aldrich v. ADD Inc., 437 Mass. 213, 221, 770 N.E.2d 447 (2002), quoting Klein v. Catalano, 386 Mass. 701, 702, 437 N.E.2d 514 (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

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