Petition for Writ of Certiorari — Federal Pacific Electric Co. v. Dighton
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a. FD
No. - . mi AUG 19 1987
JOSEPH F. SPANIOL. JR.
In the CLERK eee
Supreme Court of the United States.
OCTOBER TERM, 1987.
FEDERAL PACIFIC ELECTRIC COMPANY, INC.,
PETITIONER,
Vv.
PATRICIA DIGHTON, GEORGE P. DIGHTON, PPA,
CHRISTOPHER DIGHTON, PPA, LESLIE ABBOTT,
ADMINISTRATRIX OF THE ESTATE OF JAMES ABBOTT,
RICHARD STAFFORD, ADMINISTRATOR OF THE ESTATE OF
CASANDRA CHIMINELLO, GENERAL ELECTRIC
COMPANY, KAISER ALUMINUM anpb CHEMICAL
CORP., LEVITON MANUFACTURING CO., INC., SERT,
JACKSON & ASSOCIATES, INC., GEORGIA PACIFIC
CORP. anp ARVIN INDUSTRIES, INC.,
RESPONDENTS.
Petition for a Writ of Certiorari to the Supreme Judicial
Court for the Commonwealth of Massachusetts.
FRANCIS J. LYNCH, II
STEPHEN M. A. WoopwortTH,
FRANCIS J. LYNCH, J.D., P.C.,
37 Belmont Street,
Brockton, Massachusetts 02401.
(617) 583-7268
Attorneys for Petitioner
BATEMAN & SLADE. INC BOSTON, MASSACHUSETTS
Question Presented.
Is Massachusetts General Law c. 260, § 2B, as enacted and
as applied by the Massachusetts Supreme Judicial Court, vio-
lative of the Fourteenth Amendment of the United States Con-
stitution as it deprives the petitioner of the equal protection of
the laws?
iii
List of Parties.
The parties to the two consolidated proceedings, below, in
the Massachusetts Supreme Judicial Court and Massachusetts
Superior Court were:
Plaintiffs.
a. Patricia Dighton — Alleging personal injuries as a result
of burns.
b. Christopher Dighton — Alleging personal injuries as a
result of burns.
c. George Dighton — Alleging psychic or emotional in-
juries.
d. Leslie Abbott — Administratrix of the estate of James
Abbott, a minor who the plaintiff alleges suffered personal
injuries and wrongful death.
e. Richard Stafford — Administrator of the estate of Cas-
sandra Chiminello, a minor who the plaintiff alleges suffered
personal injuries and wrongful death.
Defendant.
f. Federal Pacific Electric Co., Inc. — Manufacturer of
electrical components which plaintiffs allege caused a residen-
tial fire with resultant personal injury and death.
Third Party Defendants.
g. Sert, Jackson and Associates, Inc. — Architect respon-
sible for design and specifications of the residence where the
fire occurred.
h. Kaiser Aluminum and Chemical Corp. — Manufacturer
of electrical wiring installed at the residence where the fire
occurred.
iV
i. Leviton Manufacturing Co., Inc. — Manufacturer of elec-
trical outlets installed at the residence where the fire occurred.
j. Georgia Pacific Corp. — Manufacturer of decorative wood
panelling installed at the residence where the fire occurred.
k. General Electric Co.* — Manufacturer of electrical out-
lets installed at the residence where the fire occurred.
1. Arvin Industries, Inc.* — Manufacturer of a portable
electric heater which was alleged to be a cause of the fire at
the plaintiffs’ residence.
List of Parent Companies, Subsidiaries and Affiliates
of the Petitioner Corporation.
Parent — Exxon Corporation.
Parent — Reliance Electric Company, Inc.
Petitioner — Federal Pacific Electric Company, Inc.
Subsidiaries.
1. Cornell Dubilier Electric Co., Inc.
a. Cornell Dubilier Electric Co., Haiti, Ltd.
b. Cornell Dubilier Electronics Co., Canada, Ltd.
c. Cornell Dubilier Electronics Co., Taiwan, Inc.
2. Federal Pacific Electric/Cornell Dubilier Electric Ger-
many, Inc.
Federal Pacific Electric de Mexico, Inc.
4. Federal Pioneer, Ltd.
a. Federal Electric Ltd.
b. Federal Pioneer — Extech, Ltd.
c. La Compagnie Electrique Pioneer du Quebec, Inc.
io)
* General Electric and Arvin Industries will soon be voluntarily dismissed
from this action.
Table of Contents.
Questions presented i
List of parties iil
List of parent companies, subsidiaries and affiliates of
the petitioner corporation iv
Opinions below 2
Jurisdiction 3
Statute involved 3
Statement of the case 4
Reasons for granting the writ 7
The distinction between those entities afforded pro-
tection by M.G.L. c. 260, § 2B and those not pro-
tected is arbitrary and without a rational basis. Ac-
cordingly the petitioner has been deprived of the
equal protection of the laws by the Massachusetts
Supreme Judicial Court’s application of the subject
statute 7
Conclusion 16
Appendix follows p. 18
Table of Authorities Cited.
CASES.
Abrams v. Bronstein, 33 N.Y.2d 488, 354 N.Y.S.2d
926, 310 N.E.2d 528 (1974) 17
Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522,
9 Ohio Ops. 2d 321, 82 Ohio L.Abs. 312 (1959) 16
American Sugar Refining Co. v. Louisiana, 179 U.S.
89 (1900) 16
Vi TABLE OF AUTHORITIES CITED.
Baird v. Eisenstadt, 405 U.S. 438 (1972)
Belle Terre v. Boraas, 416 U.S. 1 (1974)
Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194
(1934)
Broome v. Truluch, 241 S.E.2d 739 (S.C. 1978)
Burmaster v. Gravity Drainage Dist. No. 2 of the Parish
of St. Charles, 366 So.2d 1381 (La. 1978)
Carrington v. Rash, 380 U.S. 89 (1965)
Carter v. Hartenstein, 455 S.W.2d 918 (Ark. 1970)
Champlin Refining Co. v. Cruse, 115 Colo. 329, 173
P.2d 213 (1946)
Colgate v. Harvey, 296 U.S. 404 (1934)
Corporation Com. of Oklahoma v. Lowe, 281 U.S. 431
(1930)
Cournoyer v. Massachusetts Bay Transportation Au-
thority, 744 F.2d 208 (Ist Cir. 1984)
15
15
16
10
11, 12
16
10n
17
14
14
12
Dague v. Piper Aircraft Corp. 418 N.E.2d 207 (Ind. 1981) I1n
Dibrell v. Morris’ Heirs, 89 Tenn. 497, 1SS.W.87(1891) 17
Dighton v. Federal Pacific Electric Co.; Sert, Jackson
& Associates, Inc., 399 Mass. 687 (1987)
Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa.
270 (1978)
Fujioka v. Kam, 514 P.2d 568 (Hawaii 1973)
Harding v. People, 160 Ill. 459, 43 N.E. 624 (1896)
Harmon v. Angus R. Jessup Assocs., 619 S.W.2d 522
(Tenn. 1981)
Hartford Fire Ins. Co. v. Osborn Plumbing & Heating,
Inc., 225 N.W.2d 628 (Wis. 1975)
Hartford Steam Boiler Inspection & Ins. Co. v. Harrison,
301 U.S. 459 (1937)
10
14, 16
TABLE OF AUTHORITIES CITED. Vil
Henderson Clay Products, Inc. v. Edgar Wood &
Assocs., Inc., 451 A.2d 174 (N.H. 1982) 10
Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145 (Tex.
1977) lin
Howell v. Burk, 568 P.2d 214 (N.M. 1977) lin
James v. Strange, 407 U.S. 128 (1972) 15
Johnson v. Robison, 415 U.S. 361 (1974) 15
Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514
(1982) 8,9, 10, 11, 12 et seq.
Levy v. Louisiana, 391 U.S. 68, 88 S.Ci. 1509, reh.
den., 393 U.S. 898, 21 L.Ed.2d 185, 89 S.Ct. 65,
on remand, 253 La. 73, 216 So.2d 818 (1968) 15, 16
Loyal Order of the Moose, Lodge 1785 v. Cavaness, 563
P.2d 143 (Okla. 1977) 10
Madden v. Kentucky, 309 U.S. 83 (1940) 14
Mathison v. Minneapolis S.R.Co., 126 Minn. 286, 148
N.E. 71 (1914) 14, 15
McClanahan v. American Gilsonite Co. , 494 F. Supp.
1334 (D. Colo. 1980) 10
McErlain v. Taylor, 192 N.E. 260 (Ind. 1934) 17
Millis v. Southern Co. Services, Inc., 296 S.E.2d 579
(Ga. 1982) lin
Nicol v. Ames, 173 U.S. 509 (1899) 15
O’Connor v. Altus, 303 A.2d 329 (1973), aff'd, 335
A.2d 545 (N.J. 1975) 10n, 1 In
Old Dearborn Distributing Co. v. Seagram-Distillers
Corp., 299 U.S. 183 (1936) 14
Pacific Indemnity Co. v. Thompson-Yaeger, Inc. , 260
N.W.2d 548 (Minn. 1977) 10
Plant v. R.L. Reid, Inc., 313 So.2d 518 (Ala. 1975) 10
Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) 16
Vill TABLE OF AUTHORITIES CITED.
Randolph v. State, 117 Tex. Crim. 80, 36 S.W.2d 484
(1931) 16
Reed v. Reed, 404 U.S. 71, conformed to, 94 Idaho
542, 493 P.2d 701 (1971) 15
Reeves v. Ille Electric Co. , 551 P.2d 647 (Mont. 1976) 10n
Richardson v. Belcher, 404 U.S. 78 (1971) 15
Rosenberg v. North Bergen, 61 N.J. 190 (1972) 9
Shibuya v. Architects Hawaii, Ltd., 647 P.2d 276
(Hawaii 1982) 10
Skinner v. Anderson, 231 N.E.2d 588 (Ill. 1976) 10
Stanton v. Stanton, 421 U.S. 7 (1975), later app. , 552
P.2d 112 (Utah 1976), vacated on other grounds,
429 U.S. 501, on remand, 564 P.2d 303, reh. den.,
567 P.2d 625 (Utah 1977) 15
State Board of Tax Comrs. v. Jackson, 283 U.S. 527(1931) 14
Stratton Claimants v. Morris Claimants, 89 Tenn. 497,
15 S.W. 87 (1891) 17
Takahashi v. Fish & Game Com., 30 Cal.2d 719, 185
P.2d 805 (1947), rev'd on other grounds, 334 U.S.
410 (1948) 14, 16
Thornton v. Mono Mfg. Co., 425 N.E.2d522 (Ill. 1981) = Lin
Trimble v. Gordon, 430 U.S. 762, 4 Ohio Ops. 3d 296
(1977) 15
Truax v. Corrigan, 257 U.S. 312 (1921) 15
Universal Adjustment Corp. v. Midland Bank, Ltd.,
281 Mass. 303, 184 N.E. 152 (1933) 14
Van Harlingen v. Doyle, 134 Cal. 53, 66 P. 44 (1901) 16
Vigeant v. Postal Tel. Cable Co., 260 Mass. 335, 157
N.E. 651 (1927) 14
Walker v. Board of Supervisors, 224 Miss. 801, 81
So.2d 225, cert. den., 350 U.S. 887 (1955) 15
Walters v. St. Louis, 347 U.S. 231 (1954) 15
TABLE OF AUTHORITIES CITED. iX
STATUTES.
United States Constitution
Fourteenth Amendment 13
28 U.S.C. § 1257 (2) 2
28 U.S.C. § 1257 (3) ao
Massachusetts General Laws
c. 260, § 2B passim
Massachusetts Rules of Civil Procedure
Rule 64 6
MISCELLANEOUS.
Comment, Limitation of Action Statutes for Architects
& Builders, 18 Cath. U.L. Rev. 361 (1969) 9
Developments in the Law: Statutes of Limitations, 63
Harv. L. Rev. 1177 (1950) 7]
16 Am. Jur. 2d, § 788 at 928 17
16A Am. Jur. 2d, § 730 at 776-777 15
25 A.L.R.4th 641, § 2 at 644 lin
93 A.L.R.3d 1242 10
me * %
In the
Supreme Court of the United States.
OCTOBER TERM, 1987.
FEDERAL PACIFIC ELECTRIC COMPANY, INC.,
PETITIONER,
PATRICIA DIGHTON, GEORGE P. DIGHTON, PPA,
CHRISTOPHER DIGHTON, PPA, LESLIE ABBOTT,
ADMINISTRATRIX OF THE ESTATE OF JAMES ABBOTT,
RICHARD STAFFORD, ADMINISTRATOR OF THE ESTATE OF
CASANDRA CHIMINELLO, GENERAL ELECTRIC
COMPANY, KAISER ALUMINUM anpb CHEMICAL
CORP., LEVITON MANUFACTURING CO. , INC., SERT,
JACKSON & ASSOCIATES, INC., GEORGIA PACIFIC
CORP. AND ARVIN INDUSTRIES, INC.,
RESPONDENTS.
Petition for a Writ of Certiorari to the Supreme Judicial
Court for the Commonwealth of Massachusetts.
The petitioner, Federal Pacific Electric Company, Inc., re-
spectfully prays a Writ of Certiorari issue to review the judg-
2
ment and opinion of the Massachusetts Supreme Judiciai Court
entered in the above entitled proceeding on April 21, 1987.
Opinions Below.
The opinion of the Massachusetts Supreme Judicial Court
is reported at 399 Mass. 687, 506 N.E.2d 509 (1987), and is
reprinted in the appendix herein. The opinion is composed of
two distinct components:
a. The Massachusetts Supreme Judicial Court upheld the
allowance by the trial court of the architect Sert, Jackson and
Associates’ Motion for Summary Judgment which was pre-
mised upon M.G.L. c. 260, § 2B, the so-called “statute of
repose’. It is the petitioner’s position that this portion of the
opinion constitutes a final judgment and is for that reason.
inter alia, susceptible to an appeal pursuant to 28 U.S.C.
§ 1257(2). (Because the second component of the judgment
below is not susceptible of appeal, in the interest of judicial
convenience and economy both components are consolidated
into a petition for Writ of Certiorari pursuant to 28 U.S.C.
§ 1257(3).) |
b. The Massachusetts Supreme Judicial Court upheld the
trial court’s denial of petitioner’s Motion for Summary Judg-
ment against the plaintiffs based upon the same “statute of
repose” (M.G.L. c. 260, § 2B). (The petitioner believes this
component of the judgment below may be brought to this Court
only via 28 U.S.C. § 1257(3) as it does not constitute a final
judgment.)
3
Jurisdiction.
The petitioner invokes the jurisdiction of this Court pursuant
to the provisions of 28 U.S.C. § 1257(3).
In the action below “the validity of a State statute [was]
drawn in question on the ground of its being repugnant to the
Constitution” and the “judgments or decrees rendered by the
highest court of a State” were in favor of its validity. 28 U.S.C.
§ 1257.
As stated in the “Opinions Below” section above, petitioner
concedes that one component of the lower court’s opinion does
not constitute a “final judgment.” Petitioner nonetheless re-
spectfully urges this Court, in its discretion, to consider all
aspects of this case as they are inextricably interwoven and
the interests of fairness, justice, and judicial economy are best
served by so considering this matter.
Statute Involved.
MASSACHUSETTS GENERAL LAws c. 260, §2B.
Limitation of Three Years in Certain Cases;
Actions for Damages Arising Out of Improve-
ments to Real Property.
Action of tort for damages arising out of any de-
ficiency or neglect in the design, planning, construc-
tion or general administration of an improvement to
real property, other than that of a public agency as
defined in section thirty-nine A of chapter seven
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
4
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.
Actions of tort for damages arising out of any
deficiency or neglect in the design, planning, con-
struction, or general administration of an improve-
ment to real property of a public agency, as defined
in said section thirty-nine A shall be commenced
only within three years next after the cause of action
accrues; provided, however, that in no event shall
actions be commenced more than six years after the
earlier of the dates of: (1) official acceptance of the
project by the public agency; (2) the opening of the
real property to public use; (3) the acceptance by the
contractor of a final estimate prepared by the public
agency pursuant to chapter thirty, section thirty-nine
G; or (4) substantial completion of the work and the
taking possession for occupancy by the awarding
authority.
Statement of the Case.
This is an alleged personal injury/wrongful death/product
liability case.
The plaintiffs’ complaints allege that on November 18, 1980,
a fire at 1. J Old Ironside Way, Charlestown, Massachusetts,
resulted in injuries to Ms. Patricia Dighton and her sons,
George and Christopher. The fire also allegedly caused the
deaths of Ms. Dighton’s foster children, James Abbott and
Cassandra Chiminello (A. 1-12).
novesm
5
On November 17, 1982, Ms. Dighton, in a related case,
commenced an action against her landlord, against the general
contractor which built her apartment building, against the con-
tractor’s surety, and against architect Sert, Jackson and As-
sociates, Inc. (“Sert Jackson”) (Suffolk County Superior Court
Civil Action No. 58322). This action was settled by defendants
other than Sert Jackson.
On November 18, 1983, Ms. Dighton, on her own behalf
and on behalf of her children, brought suit against Federal
Pacific Electric Company, Inc. (“Federal Pacific”), alleging
negligence and breach of warranty in connection with a defec-
tive circuit breaker which she alleged caused the subject fire
(Suffolk County Superior Court Civil Action No. 65216).
In a separate action, commenced on November 18, 1983,
Leslie W. Abbott, administratrix of the Estate of James Abbott,
and Richard Stafford, administrator of the Estate of Cassandra
Chiminello, also commenced a similar action against Federal
Pacific (Suffolk County Superior Court Civil Action No.
65217). All three actions have been consolidated.
On July 26, 1985, defendant, Federal Pacific, sought leave
to implead Sert Jackson and other third-party defendants for
contribution and indemnification.
Federal Pacific’s motion to implead Sert Jackson and other
third-party defendants was allowed on August 28, 1985.
The basis of Federal Pacific’s third-party complaint against
Sert Jackson is that:
a. Sert Jackson was the architect for the construction of the
apartment complex wherein the alleged fire occurred;
b. Sert Jackson, in its role as architect, was negligent in its
“general administration of an improvement to real property”
in that it approved the use of Kaiser Aluminum aluminum
wiring in conjunction with Leviton copper outlets when, in
fact, copper wiring was originally specified; and
6
c. That this failure to enforce the installation of copper
conductor wire rather than aluminum (or in the alternative
“pig-tailing” of copper conductors from the receptacle bolts
to the aluminum conductor cable) was the proximate cause of
the fire, i.e., it is alleged the connection of aluminum wire to
the copper or brass terminal lugs on the receptacles caused the
fire.
The premises where this fire allegedly occurred was opened
to use on or before July 23, 1971. The project was substantially
completed before August 24, 1972. The Dighton plaintiffs
have admitted that the premises at 120 Old Ironside Road,
Charlestown, Massachusetts and the component parts thereof
were substantially completed and/or built or assembled prior
to December 31, 1970.
In both the Dighton and Abbott cases the third-party defend-
ant, Sert Jackson, moved to dismiss Federal Pacific’s third-
party actions in accord with the time limitations imposed by
M.G.L. c. 260, § 2B.
Those motions for dismissal were allowed by the Massachu-
setts Superior Court.
In both the Dighton and Abbott cases the defendant, Federal
Pacific, moved to dismiss the plaintiffs’ respective causes of
action upon the same basis, M.G.L. c. 260, § 2B.
Federal Pacific’s motions to dismiss were denied by the
Massachusetts Superior Court which reported certain questions
of law to the Massachusetts Appeals Court pursuant to Massa-
chusetts Rules of Civil Procedure 64 (a copy of which is set
out at page 12a of the appendix).
On March 28, 1986, Federal Pacific filed with the Massachu-
setts Appeals Court Notices of Appeal with respect to the
Superior Court’s allowance of Sert Jackson’s Motions to Dis-
miss and denial of Federal Pacific’s Motion to Dismiss.
Thereafter Federal Pacific moved to consolidate the appeals
and for direct appellate review by the Massachusetts Supreme
Judicial Court. Both motions were allo®ed.
7
The Massachusetts Supreme Judicial Court heard oral argu-
ments on January 8, 1987.
The Supreme Judicial Court issued its decision on April 21,
1987.
It is from that decision, which affirmed the actions of the
Superior Court, that this petition arises.
Reasons for Granting the Writ.
THE DISTINCTION BETWEEN THOSE ENTITIES AFFORDED PRO-
TECTION BY M.G.L. c. 260, § 2B AND THOSE Nort PrRo-
TECTED IS ARBITRARY AND WITHOUT A RATIONAL BASIS.
ACCORDINGLY THE PETITIONER HAS BEEN DEPRIVED OF THE
EQUAL PROTECTION OF THE LAWS BY THE MASSACHUSETTS
SUPREME JUDICIAL COURT’S APPLICATION OF THE SUBJECT
STATUTE.
Succinctly, it is the position of the petitioner that M.G.L.
c. 260, § 2B is violative of concepts of “equal protection”
inasmuch as an arbitrary distinction exists between that class
protected by said statute and that class not protected.
This so-called “statute of repose” which limits the liability
of architects and builders should either be stricken entirely or
interpreted in such a fashion as to protect a class of entities
which is more broadly and rationally based.
In the case at bar, wherein the building in which the fire
occurred was substantially completed more than six years be-
fore the action was commenced, the practical effect of M.G.L.
c. 260, § 2B on the petitioner is two-fold:
a. Because the petitioner, as a supplier of building materials
which were incorporated into the subject premises, is outside of
the defined class it is afforded no protection by the statute, yet;
b. Because the architect, Sert Jackson, is within the defined
class, the petitioner is unable to bring a contribution or indem-
8
nity action against Sert Jackson, even though Sert Jackson,
on the facts, appears to be a viable joint tortfeasor.
Heretofore the leading Massachusetts case pertaining to
M.G.L. c. 260, § 2B was Klein v. Catalano, 386 Mass. 701,
437 N.E.2d 514 (1982).
In Klein the Massachusetts Supreme Judicial Court set out
the reasoning for the enactment of c. 260, § 2B, the so-called
“statute of repose”. The court stated:
“The architect or contractor was confronted not only
with an unlimited class of potential claimants, but
also, in many instances, with an extension in duration
of the liability for negligence.” Comment, Limitation
of Action Statutes for Architects and Builders, 18
Cath. U.L. Rev. 361, 363 (1969). An injury could
occur many years after the architect or contractor
had completed his work. . . . [T]hose involved in
construction were subject to possible liability
throughout their professional lives and into retire-
ment.
Id., 386 Mass. at 708-09, 437 N.E.2d at 520 (footnote omit-
ted).
All which the court stated in the foregoing passage is equally
applicable to a manufacturer who supplies a construction com-
ponent which becomes an integral part of a structure. Herein,
if Federal Pacific does not enjoy the protection of M.G.L.
c. 260, § 2B it too wiil be confronted “with an unlimited class
of potential claimants . . . [and] an extension in duration of
the liability for negligence.”” Federal Pacific also would be
“subject to possible liability throughout [its life].” “An injury
could occur many years after” the manufacture and installation
of the subject circuit breakers. /d.
9
Limiting the duration of liability is a well recog-
nized public purpose. “There comes a time when [a
defendant] ought to be secure in his reasonable ex-
pectation that the slate has been wiped clean of an-
cient obligations, and he ought not to be called on
to resist a claim ‘when evidence has been lost,
memories have faded, and witnesses have disap-
peared.’” Rosenberg v. North Bergen, 61 N.J. 190,
201 (1972), quoting Developments in the Law: Stat-
utes of Limitations, 63 Harv. L. Rev. 1177, 1185
(1950).
Klein, supra, 386 Mass. at 709, 437 N.E.2d at 520 (footnote
omitted).
Herein, while the contractor and architect who, arguably,
misused Federal Pacific’s product may “be secure in [their]
reasonable expectation that the slate has been wiped clean,”
the similarly situated Federal Pacific may not be so “secure.”
Id.
Not only has “evidence . . . been lost, memories . . . faded
and witnesses . . . disappeared” but because of the protection
granted by c. 260 § 2B to the contractor and architect, after
this passage of time, it seems unlikely Federal Pacific will be
able to maintain an action for contribution and/or indemnity
against these entities. /d.
There appears to be no rational nor reasonable basis for the
arbitrary distinction between architects and builders who enjoy
the protection of c. 260 § 2B, and suppliers who are not so
protected.
It is respectfully suggested that the sole reason for such a
distinction in Massachusetts is a stronger legislative lobbying
effort by builders and architects than by suppliers. This theory
finds support in the statement of the court in Klein, supra,
10
386 Mass. at 709, 437 N.E.2d at 520, to wit: “At the urging
of those involved in the construction industry, the Legislature
placed an absolute outer limit on the duration of this liability.”
See also McClanahan v. American Gilsonite Co. , 494 F.Supp.
1334, 1346 (D. Colo. 1980) as cited in Klein, supra at 709
n.9, 437 N.E.2d at 520 n.9.
Despite the court having determined in Klein that M.G.L.
c. 260, § 2B is not violative of equal protection concepts,
Federal Pacific suggests that the similarities in the situation
between itself, as a supplier, and the builder and architect
herein, are persuasive and that the class distinctions are arbi-
trary and without a rational basis.
While M.G.L. c. 260, § 2B may be founded upon a valid
State interest, the arbitrary distinction between the builders and
suppliers does not further any state interest. In similar cases at
least nine jurisdictions have found such statutes unconstitutional.
See 93 A.L.R.3d 1242, 1250, citing Pacific Indemnity Co. v.
Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn. 1977),
McClanahan v. American Gilsonite Co., 494 F.Supp. 1334 (D.
Colo. 1980); Shibuya v. Architects Hawaii, Lid., 647 P.2d 276
(Hawaii 1982); Henderson Clay Products, Inc. v. Edgar Wood
& Assocs., Inc., 451 A.2d 174 (N.H. 1982); Plant v. R.L. Reid,
Inc., 313 So.2d 518 (Ala. 1975); Fujioka v. Kam, 514 P.2d 568
(Hawaii 1973); Skinner v. Anderson, 231 N.E.2d 588 (Ill. 1976);
Loyal Order of the Moose, Lodge 1785 v. Cavaness, 563 P.2d
143 (Okla. 1977); Broome v. Truluch, 241 S.E.2d 739 (S.C.
1978); Hartford Fire Ins. Co. v. Osborn Plumbing & Heating,
Inc., 225 N.W.2d 628 (Wis. 1975).'
‘In citing those jurisdictions wherein “statutes of repose” have been deemed
unconstitutional, the petitioner acknowledges, and respectfully directs the
Court's attention to the fact that there is a conflict between the holdings of
various jurisdictions regarding this issue and cites the following cases as indic-
ative of same: Carter v. Hartenstein, 455 S.W.2d 918 (Ark. 1970); Reeves
v. [lle Electric Co., 551 P.2d 647 (Mont. 1976): O'Connor v. Altus, 303 A.2d
Succinctly, there is a virtual identity between the positions
and situations of Federal Pacific and the architect and builder,
as discussed in Klein, and accordingly the statutory distinction
between the two classes is artificial and irrational.
In citing the difficulty of an architect or builder in exercising
control over the finished structure the court in Klein stated:
“[T]here 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.'?! It is dif-
ficult for the architect or contractor to guard against
such occurrences because, after the acceptance by
the owner, the architect or contractor ordinarily has
neither control of the improvement nor the right to
enter or inspect the improvement.” Burmaster v.
329 (1973), aff'd, 335 A.2d 545 (N.J. 1975); Howell v. Burk, 568 P.2d 214
(N.M. 1977); Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145 (Tex. 1977):
Millis v. Southern Co. Services, Inc., 296 §.E.2d 579 (Ga. 1982).
*In urging that “statutes of respose” should be extended to suppliers, it has
been pointed out:
that a product's safe use for a substantial period of time is some
indication that the product was not defective at the time of manufac-
ture, sale or delivery, that there is a greater chance that external
causes beyond the manufacturer's control contributed to the injuries
occurring many years after the initial purchase, and that the passing
time increases the seller's difficulty in constructing a valid defense
because much of the evidence may be lost, destroyed, or otherwise
beyond reconstruction.
Product-Caused Injury—Period of Action, 25 ALR4th 641, § 2 at 644. In fact
numerous jurisdictions have so expanded “statutes of repose” or enacted similar
Statutes dealing specifically with product related injuries. See Thornton vy.
Mono Mfg. Co., 425 N.E.2d 522 (Ill. 1981); Dague v. Piper Aircraft Corp..,
418 N.E.2d 207 (Ind. 1981).
12
Gravity Drainage Dist. No. 2 of the Parish of St.
Charles, 366 So.2d 1381, 1385-1386 (La. 1978).
See Freezer Storage, Inc. v. Armstrong Cork Co..,
476 Pa. 270, 276 (1978); Harmon v. Angus R. Jessup
Assocs., 619 S.W.2d 522 (Tenn. 1981).
Id., 386 Mass. at 716, 437 N.E.2d at 524. See also Cournoyer
v. Massachusetts Bay Transportation Authority, 744 F.2d 208,
211 (Ist Cir. 1984).
This exactly describes Federal Pacific dilemma.
Federal Pacific “has neither control of the [circuit breakers
and the panel in which they are inserted at 120 Old Ironside
Way] nor the right to enter and inspect . . . [same].” /d.
Without a broader interpretation of c. 260, § 2B the man-
ufacturer of a circuit breaker has virtually unlimited exposure.
By the very nature of the product it becomes an integral part
of the finished structure and it is unlikely the panel would be
replaced during the lifetime of the structure.
In Klein, the court repeatedly makes reference to “those
involved in construction” (e.g., see 386 Mass. at 708, 709,
710, 437 N.E.2d at 520-521) in describing that class afforded
protection by M.G.L. c. 260, § 2B. Federal Pacific suggests
that, at least with respect to the manufacture and supply of
circuit breakers and panels, it too is a member of the class of
“those involved in construction.” Circuit breakers and panels
are of absolutely no utility unless “involved in construction”
and incorporated into a structure. In this light, it is clear that
design of circuit breakers and panels is a “design or plan for
the improvement of real estate.” Federal Pacific suggests that
the encouragement of experimentation with new designs in
construction discussed in Klein is equally applicable to the
design and manufacture of the components which form an
integral part of said construction: “The Legislature enacted
13
G.L.c. 260, § 2B, to limit the liability of architects, engineers,
contractors, or others involved in the design, planning, con-
struction, or general administration of an improvement to real
property.” 386 Mass. at 720, 437 N.E.2d at 526 (emphasis
added). Federal Pacific is so involved or is similarly situated.
It is the position of Federal Pacific that in light of the similar
relationship of Federal Pacific and Sert Jackson to the construc-
tion industry, it is purely an arbitrary distinction, violative of
the “equal protection” clause of the Fourteenth Amendment
of the U.S. Constitution, that enabled the Superior Court to
allow Sert Jackson’s Motion to Dismiss while denying Federal
Pacific’s Motion to Dismiss presented on the same grounds.
Despite the fact Federal Pacific is so similarly situated, the
Massachusetts Supreme Judicial Court’s application of M.G.L.
c. 260, § 2B arbitrarily excludes suppliers and materialmen
from the class of entities immunized by c. 260, § 2B, without
providing a rational basis for such exclusion.
In Klein, the court articulates the reason for the distinctions
between architects and “a mass producer of consumer goods.”
386 Mass. at 719, 437 N.E.2d at 525 (emphasis added). Federal
Pacific suggests this distinction is not applicable herein as the
breakers and pane!s produced by Federal Pacific should not
be classified as “consumer goods.”
Rather, these are electrical utility distribution components
purchased by the electrical building trade and incorporated as
integral service elements of real property. Such products are
generally of no utility unless incorporated into a structure.
They are easily differentiated from appliances or personal use
items.
The only “basis” for excluding Federal Pacific from the
protection of c. 260, § 2B should not be applicable to the
Federal Pacific product and therefore, the distinction, as it
pertains to Federal Pacific, is not founded upon a rational
basis. Massachusetts General Laws c. 260, § 2B therefore de-
14
nies Federal Pacific equal protection of the laws and should
therefore be stricken as violative of the Fourteenth Amend-
ment.
While a statute of repose such as M.G.L. c. 260, § 2B may
be generally founded upon a valid state or public interest, this
arbitrary distinction between builders and suppliers does not
further any state interest, and the statute, it is suggested, is
therefore violative of the concepts of equal protection.
Beyond this it is unclear if c. 260, § 2B is even, generally,
founded upon a valid state or public interest as the statute may
encourage a builder or architect to perform in a less than
workman-like manner, secure in the knowledge that he will
be immune from liability after the passage of six years.
The allowance of Sert Jackson’s Motions to Dismiss has
had the practical effect that Federal Pacific will have no re-
course to the courts to seek contribution or indemnity from
Sert Jackson despite the fact that it may have actually been
Sert Jackson’s negligence which led to the plaintiff's damages.
The guiding principle often stated by this and other courts
is that equal protection of the laws requires all persons be
treated alike under like circumstances and conditions, both in
the privileges conferred and the liabilities imposed. Hartford
Steam Boiler Inspection & Ins. Co. v. Harrison, 301 U.S.
459 (1937); Old Dearborn Distributing Co. v. Seagram-Dis-
tillers Corp., 299 U.S. 183 (1936); Colgate v. Harvey, 296
U.S. 404 (1934) (overruled on another point in Madden v.
Kentucky, 309 U.S. 83 (1940) ); State Board of Tax Comrs.
v. Jackson, 283 U.S. 527 (1931); Corporation Com. of Ok-
lahoma v. Lowe, 281 U.S. 431 (1930); Takahashi v. Fish &
Game Com., 30 Cal.2d 719, 185 P.2d 805 (1947), rev'd on
other grounds, 334 U.S. 410 (1948); Universal Adjustment
Corp. v. Midland Bank, Ltd., 281 Mass. 303, 184 N.E. 152
(1933); Vigeant v. Postal Tel. Cable Co., 260 Mass. 335, 157
N.E. 651 (1927); Mathison v. Minneapolis §.R. Co., 126 Minn.
15
286, 148 N.W. 71 (1914); Walker v. Board of Supervisors,
224 Miss. 801, 81 So.2d 225, cert. den. , 350 U.S. 887 (1955).
The equal protection guaranty is intended to secure
equality of protection not only for all, but against
all similarly situated. Protection is not protection
unless it accomplishes this. Immunity granted to a
class, however limited, having the effect to deprive
another class, however limited, of a personal or prop-
erty right is just as clearly a denial of equal protection
of the laws of the latter class as if the immunity were
in favor of, or the deprivation of right permitted to
be worked against, a larger class.
16A Am. Jur. 2d, § 738 at 775-776, citing Truax v. Corrigan,
257 U.S. 312 (1921).
The subject statute effectively “classifies” those persons to
whom it affords protection and those to whom it does not. In
order that a classification avoid violation of the guaranty of
equal protection the classification must not be capricious or
arbitrary, but must be reasonable, Stanton v. Stanton, 421
U.S. 7 (1975), later app., 552 P.2d 112 (Utah 1976), vacated
on other grounds, 429 U.S. 501, on remand, 564 P.2d 303,
reh’ den., 567 P.2d 625 (Utah 1977); Belle Terre v. Boraas,
416 U.S. 1 (1974); Johnson v. Robison, 415 U.S. 361 (1974);
Baird v. Eisenstadt, 405 U.S. 438 (1972): Reed v. Reed, 404
U.S. 71 (1971), conformed to, 94 Idaho 542, 493 P.2d 701
(1971); Walters v. St. Louis, 347 U.S. 231 (1954), and natural,
Nicol v. Ames, 173 U.S. 509 (1899) and must have a rational
basis, Trimble v. Gordon, 430 U.S. 762, 4 Ohio Ops. 3d 296
‘(1977); Belle Terre v. Boraas, 416 U.S. 1 (1974); James v.
Strange, 407 U.S. 128 (1972); Richardson v. Belcher, 404
U.S. 78 (1971); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct.
16
1509, reh. den., 393 U.S. 898, 21 L.Ed.2d 185, 89 S.Ct. 65,
on remand, 253 La. 73, 216 So.2d 818 (1968); Allied Stores
of Ohio, Inc. v. Bowers, 358 U.S. 522, 9 Ohio Ops. 2d 321,
82 Ohio L. Abs. 312 (1959), in light of its purpose or objective,
Carrington v. Rash, 380 U.S. 89 (1965).
As stated above it is the position of the petitoner that the
classification resulting from M.G.L. c. 260, § 2B is arbitrary
and capricious.
The petitioner respectfully suggests a legislature cannot ar-
bitrarily create a class and make it binding on the courts so
that they would be bound to accept such classification as a
proper one. Van Harlingen v. Doyle, 134 Cal. 53, 66 P. 44
(1901); Randolph v. State, 117 Tex. Crim. 80, 36 S.W.2d
484 (1931). When properly attacked, a classification must
disclose its rational basis. A discrimination is not to be sup-
ported by mere fanciful conjecture, Hartford Steam Boiler
Inspection & Ins. Co. v. Harrison, 301 U.S. 459 (1937);
Borden's Farm Products Co. v. Baldwin, 293 U.S. 194 (1934),
and cannot stand as reasonable if it offends the plain standards
of common sense, Hartford Steam Boiler Inspection & Ins.
Co. v. Harrison, 301 U.S. 459 (1937).
It is often stated that a classification must be based on some
natural principle of public policy, American Sugar Refining
Co. v. Louisiana, 179 U.S. 89 (1900). Reasonable classifica-
tion implies action consistent with the legitimate interests of
the state. Takahashi v. Fish & Game Com., 30 Cal.2d 719,
185 P.2d 805 (1947), rev'd, 334 U.S. 410 (1948); Police
Dept. of Chicago v. Mosley, 408 U.S. 92 (1972).
It is difficult to imagine how any governmental interest is
furthered by the arbitrary distinction between those protected
by the statute and those not so protected. In fact, in the Klein
case the Massachusetts Supreme Judicial Court has acknowl-
edged that the promulgation and enactment of the statute were
principally the result of an effective lobbying effort by those
who are protected by the statute.
17
By conferring a special privilege on architects, engineers
and builders the statute effectively deprives similarly situated
entities of equal protection.
In all cases, however, where a classification is made
for the purpose of conferring a special privilege on
a class, there must be some good and valid reason
why that particular class should alone be the recipient
of the benefit.** Under the Federal Constitution, dis-
tinctions in rights and privileges must be based on
some reason not applicable to all.*’ But if there are
other general classes situated in all respects like the
class benefited by a statute, with the same inherent
needs and qualities which indicate the necessity or
expediency of protection of the favored class, and
legislation discriminates against, casts a burden upon
or withholds the same protection from the other class
or classes in like situations, it cannot stand.
“ Champlin Refining Co. v Cruse, 115 Colo 329, 173 P2d 213
[1946]; Dibrell v Morris’ Heirs, 89 Tenn 497, 15 SW 87 [1891]:
Stratton Claimants v Morris Claimants, 89 Tenn 497, 15 SW 87
[1891].
“ Harding v. People, 160 Ill 459, 43 NE 624 [1896].
i6A Am. Jur. 2d, § 788 at 928; McErlain v. Taylor, 192 N.E.
260 (Ind. 1934); Abrams v. Bronstein, 33 N.Y.2d 488, 354
N.Y.S.2d 926, 310 N.E.2d 528 (1974).
Conclusion.
For the foregoing reasons, inter alia, the petitioner contends
that it has been denied equal protection of the laws by the
18
Massachusetts Supreme Judicial Court’s application of M.G.L.
c. 260, § 2B and the petitioner prays this Court issue a Writ
of Certiorari.
Respectfully submitted,
FRANCIS J. LYNCH, II
STEPHEN M. A. WOODWORTH,
FRANCIS J. LYNCH, J.D., P.C.,
37 Belmont Street,
Brockton, Massachusetts 02401.
(617) 583-7268
Table of Contents.
Appendix A
Complaint, Suffolk Superior Court No. 65217
Appendix B
Complaint, Suffolk Superior Court No. 65216
Appendix C
Massachusetts Rules of Civil Procedure
Rule 64
Appendix D
Order of the Court dated April 21, 1987 with attached
opinion
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Appendix A
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
No. 65217
LESLIE W. ABBOTT, Administratrix of )
the Estate of James Abbott )
and )
RICHARD STAFFORD, Administrator of )
the Estate of Casandra Chiminello )
VS. : )
FEDERAL PACIFIC ELECTRIC COMPANY _ )
COMPLAINT
Parties
1. The plaintiff, LESLIE W. ABBOTT is the administratrix
of the Estate of James Abbott having received her appointment
on March 3, 1983 at Suffolk Probate Court, No. 520494. The
plaintiff resides at 139 L Street, City of South Boston, County
of Suffolk, Commonwealth of Massachusetts.
2. The plaintiff, RICHARD STAFFORD is the administrator
of the Estate of Casandra Chiminello having received his ap-
pointment on August 18, 1983 at Suffolk Probate Court,
No. 520547. The plaintiff resides at 13 Mohawk Road, City
of Holbrook, County of Norfolk, Commonwealth of Massachu-
setts.
2a
3. The defendant, FEDERAL PACIFIC ELECTRIC COM-
PANY, is a New Jersey Corporation having a usual place of
business at i150 Avenue L, Newark, NJ 07101.
General Allegations
4. The plaintiff intestates James Abbott and Casandra
Chiminello on November 18, 1980 were residents at 120 Iron-
side Road, Charlestown, MA. Such residence being part of a
housing project consisting of 262 units located at Old Landing
Way and Old Ironside Way in Charlestown, MA.
5. On November 18, 1980 a fire occurred at 120 Ironside
Way, Charlestown, MA as aresult of which each of the plaintiff
intestates endured smoke inhalation, thermal burns, suffered
consciously, and died. ;
6. The plaintiff intestate James Abbott was survived by next
of kin, his mother, the plaintiff Leslie W. Abbott.
7. The plaintiff intestate Casandra Chiminello was survived
by next of kin, his mother Lynn Stafford.
8. Each of the plaintiff's deaths, pain and suffering was
caused by a defective circuit breaker made and manufactured
by the defendant Federal Pacific Electric Company.
COUNT I: LESLIE W. ABBOTT, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (death)
9. The plaintiff realleges the description of the parties and
the general allegations and makes them a part of this Count I.
10. The defendant Federal Pacific Electric Company negli-
gently manufactured the circuit breaker which was located on
the premises where the plaintiff intestate resided.
11. As a result thereof, the plaintiff intestate died.
12. This count is brought by the administratrix of the estate
for the next of kin for compensation of loss of reasonably
expected net income, services, protection, care, assistance,
society, companionship, comfort, guidance, counsel, advice
of the decedent.
3a
COUNT II: LESLIE W. ABBOTT, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (pain and con-
scious suffering)
13. The plaintiff realleges the description of the parties and
the general allegations and makes them a part of this Count II.
14. The defendant Federal Pacific Electric Company negli-
gently manufactured the circuit breaker which was located on
the premises where the plaintiff intestate resided.
15. As a result thereof, the plaintiff intestate endured pain
and conscious suffering.
COUNT III: LESLIE W. ABBOT, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (breach of
warranty causing death)
16. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count III.
17. The defendant Federal Pacific Electric Company man-
ufactured and put into the chain of commerce a circuit breaker
which was defective at the time it was manufactured. The
circuit breaker was located in an apartment where the plaintiff
intestate resided.
18. As a result thereof, the piaintiff intestate died.
19. This count is brought by the administratrix of the estate
for the next of kin for compensation of loss of reasonably
expected net income, services, protection, care, assistance,
society, companionship, comfort, guidance, counsel, advice
of the decedent.
COUNT IV: LESLIE W. ABBOTT, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (breach of
watranty causing pain and conscious suffering)
20. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count IV.
21. The defendant Federal Pacific Electric Company man-
ufactured and put into the chain of commerce a circuit breaker
which was defective at the time it was manufactured. The
da
circuit breaker was located in an apartment where the plaintiff
intestate resided.
22. As a result thereof, the plaintiff intestate endured pain
and conscious suffering.
COUNT V: LESLIE W. ABBOTT, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (punitive
damages)
23. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count V.
24. The defendant manufactured, distributed, failed to warn
the plaintiff intestate of a defective circuit breaker. The defend-
ant’s conduct is in a manner which was reckless and grossly
negligent.
25. As a result thereof, the plaintiff intestate died.
26. This action is brought by the administratrix of the next
of kin in the amount of not less than five thousand ($5,000.00)
dollars.
COUNT VI: RICHARD STAFFORD, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (death)
27. The plaintiff realleges the description of the parties and
the general allegations and makes them a part of this Count I.
28. The defendant Federal Pacific Electric Company negli-
gently manufactured the circuit breaker which was located on
the premises where the plaintiff intestate resided.
29. As a result, the plaintiff intestate died.
30. This count is brought by the administratrix of the estate
for the next of kin for compensation of loss of reasonably
expected net income, services, protection, care, assistance,
society, companionship, comfort, guidance, counsel, advice
of the decedent.
COUNT VII: RICHARD STAFFORD, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (pain and
conscious suffering)
31. The plaintiff realleges the description of the parties and
the general allegations and makes them a part of this Count VII.
Sa
32. The defendant Federal Pacific Electric Company negli-
gently manufactured the circuit breaker which was located on
the premises where the plaintiff intestate resided.
33. As a result thereof, the plaintiff intestate endured pain
and conscious suffering.
COUNT VIII: RICHARD STAFFORD, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (breach of
warranty causing death)
34. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count VIII.
35. The defendant Federal Pacific Electric Company man-
ufactured and put into the chain of commerce a circuit breaker
which was defective at the time it was manufactured. The
circuit breaker was located in an apartment where the plaintiff
intestate resided.
36. As a result thereof, the plaintiff intestate died.
37. This count is brought by the administrator of the estate
for the next of kin for compensation of loss of reasonably
expected net income, services, protection, care, assistance,
society, companionship, comfort, guidance, counsel, advice
of the decedent.
COUNT IX: RICHARD STAFFORD, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (breach of
warranty causing pain and conscious suffering)
38. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count IX.
39. The defendant Federal Pacific Electric Company man-
ufactured and put into the chain of commerce a circuit breaker
which was defective at the time it was manufactured. The
circuit breaker was located in an apartment where the plaintiff
intestate resided.
40. As a result thereof, the plaintiff intestate endured pain
and conscious suffering.
6a
COUNT X: RICHARD STAFFORD, ADM. V. FEDERAL
PACIFIC ELECTRIC COMPANY (punitive
damages)
41. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count X.
42. The defendant manufactured, distributed, failed to warn
the plaintiff intestate of a defective circuit breaker. The defend-
ant’s conduct is in a manner which was reckless and grossly
negligent.
43. As a result thereof, the plaintiff intestate died.
44. This action is brought by the administrator of the next
of kin in the amount of not less than five thousand ($5,000.00)
dollars.
WHEREFORE, the plaintiffs demand the following:
. On Count I one million ($1 ,000,000.00) dollars;
. On Count II one million ($1 ,000,000.00) dollars;
. On Count III one million ($1 ,000,000.00) dollars;
. On Count IV one million ($1 ,000,000.00) dollars;
. On Count V one million ($1 000,000.00) dollars;
. On Count VI one million ($1 ,000,000.00) dollars;
. On Count VII one million ($1 ,000,000.00) dollars;
. On Count VIII one million ($1 ,000,000.00) dollars;
. On Count IX one million ($1,000,000.00) dollars;
On Count X one miliion ($1 ,000,000.00) dollars;
SOEMIDWNAWN —
Ta
11. Reasonable attorney’s fees;
12. Interest.
By their attorney,
COSGROVE AND EISENBERG, P.C.
MARTIN S. COSGROVE
Post Office Box 198
Quincy, MA 02170
479-7770
Dated: November 18, 1983
PLAINTIFFS DEMAND TRIAL BY JURY ON ALL ISSUES
8a
Appendix B
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
No. 65216
PATRICIA DIGHTON; GEORGE P. DIGHTON, )
PPA AND CHRISTOPHER DIGHTON, PPA. )
VS. )
FEDERAL PACIFIC ELECTRIC COMPANY )
COMPLAINT
Parties:
|. The plaintiff, PATRICIA DIGHTON, is a Massachusetts
resident domiciled in Charlestown, Suffolk County, Common-
wealth of Massachusetts.
2. The plaintiff, GEORGE F. DIGHTON, d/o/b 5/24/67,
is a minor and resident of Charlestown, Suffolk County, Com-
monwealth of Massachusetts, who brings this action through
his mother and next friend, Patricia Dighton.
3. The plaintiff, CHRISTOPHER DIGHTON, d/o/b 5/13/70,
is a minor and resident of Charlestown, Suffolk County, Com-
monwealth of Massachusetts, who brings this action through
his mother and next friend, Patricia Dighton.
4. The defendant, FEDERAL PACIFIC ELECTRIC COM-
PANY, is a New Jersey Corporation having a usual place of
business at 150 Avenue L, Newark, NJ 07101.
General Allegations
5. The plaintiffs on November 18, 1980 were residents at
120 Ironside Road, Charlestown, MA. Such residence being
9a '
part of a housing project consisting of 262 units located at Old
Landing Way and Old Ironside Way in Charlestown, MA.
6. On November 18, 1980 a fire occurred at 120 Ironside
Way, Charlestown, MA as a result of which each of the plain-
tiffs endured smoke inhalation, thermal burns, suffered con-
sciously and was obliged to >xpend monies for medical ex-
penses.
7. Each of the plaintiff's pain and suffering was caused by
a defective circuit breaker made and manufactured by the de-
fendant Federal Pacific Electric Company.
COUNT I: PATRICIA DIGHTON V. FEDERAL PACIFIC
ELECTRIC COMPANY (negligence)
8. The plaintiff realleges the description of the parties and
the general allegations and makes them a part of this Count II.
9. The defendant Federal Pacific Electric Company negli-
gently manufactured the circuit breaker which was located on
the premises where the plaintiff resided.
10. As a result thereof, the plaintiff endured pain and con-
scious suffering. |
COUNT Il: GEORGE DIGHTON, PPA V. FEDERAL
PACIFIC ELECTRIC COMPANY (negligence)
11. The plaintiff realleges the description of the parties and
the general allegations and makes them a part of this Count II.
12. The defendant Federal Pacific Electric Company negli-
gently manufactured the circuit breaker which was located on
the premises where the plaintiff resided.
13. As a result thereof, the plaintiff endured pain and con-
scious suffering.
COUNT III: CHRISTOPHER DIGHTON, PPA V. FEDERAL
PACIFIC ELECTRIC COMPANY (negligence)
14. The plaintiff realleges the description of the parties and
the general allegations and makes them a part of this Count III.
15. The defendant Federal Pacific Electric Company negli-
gently manufactured the circuit breaker which was located on
the premises where the plaintiff resided.
10a
16. As a result thereof, the plaintiff endured pain and con-
scious suffering.
COUNT IV: PATRICIA DIGHTON V. FEDERAL PACIFIC
ELECTRIC COMPANY (breach of warranty)
17. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count IV.
18. The defendant Federal Pacific Electric Company man-
ufactured and put into the chain of commerce a circuit breaker
which was defective at the time it was manufactured. The
circuit breaker was loctated [sic] in an apartment where the
plaintiff resided.
19. As a result thereof, the plaintiff endured pain and con-
scious suffering.
COUNT V: GEORGE DIGHTON PPA V. FEDERAL
PACIFIC ELECTRIC COMPANY (breach of
warranty)
20. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count V.
21. The defendant Federal Pacific Electric Company man-
ufactured and put into the chain of commerce a circuit breaker
which was defective at the time it was manufactured. The
circuit breaker was loctated [sic] in an apartment where the
plaintiff resided.
22. As a result thereof, the plaintiff endured pain and con-
scious suffering.
COUNT VI: CHRISTOPHER, PPA V. FEDERAL PACIFIC
ELECTRIC COMPANY (breach of warranty)
23. The plaintiff realleges the description of the parties and
general allegations and makes them a part of this Count VI.
24. The defendant Federal Pacific Electric Company man-
ufactured and put into the chain of commerce a circuit breaker
which was defective at the time it was manufactured. The
circuit breaker was loctated [sic] in an apartment where the
plaintiff resided.
————————————
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25. As a result thereof, the plaintiff endured pain and con-
scious suffering.
WHEREFORE, the plaintiffs demand the following:
. On Count I five million ($5,000,000.00) dollars;
. On Count II one million ($1,000,600.00) dollars;
. On Count III one million ($1,000,000.00) dollars;
. On Count IV five million ($5,000,000.00) dollars;
. On Count V one million ($1,000,000.00) dollars;
. On Count VI one million ($1,000,000.00) dollars;
Reasonable attorney’s fees;
interest.
CIDNWHLWN—
By their attorney,
CHARLES A. CLIFFORD
305 Main Street, Box 46
Charlestown, MA 02129
241-7440
Dated: November 18, 1983
PLAINTIFFS DEMAND TRIAL BY JURY ON ALLISSUES.
12a
Appendix C
VIII. PROVISIONAL AND FINAL REMEDIES AND
SPECIAL PROCEDURES
RULE 64. REPORT OF CASE
The court, after verdict or after a finding of facts under Rule
52, may report the case for determination by the appeals court.
If the trial court is of opinion that an interlocutory finding or
order made by it so affects the merits of the controversy that
the matter ought to be determined by the appeals court before
any further proceedings in the trial court, it may report such
matter, and may stay all further proceedings except such as
are necessary to preserve the rights of the parties. The court,
upon request of the parties, in any case where the parties agree
in writing as to all the material facts, may report the case to
the appeals court for determination without making any deci-
sion thereon. In an action commenced before a single justice
of the supreme judicial court, the court may report the case
in the circumstances above described to either the appeals court
or the full supreme judicial court; provided further that a single
justice of the supreme judicial court may at any time reserve
any question of law for consideration by the full court, and
shall report so much of the case as is necessary for understand-
ing the question reserved.
District Courts and Municipal Court of Boston
PRESERVATION OF ISSUES AND APPEAL
TO THE APPELLATE DIVISION
(a) Rulings on Evidence. When an objection is made to a
ruling on the admission or exclusion of evidence, a request
for a report shall be made at the time of the ruling and shall
be reduced to writing and filed with the cierk within 5 days
13a
after the hearing of all evidence. The written request for report
shall clearly identify the question, answer (or offer of proof),
or physical evidence and the related ruling which was the
subject of the objection. The ruling thus identified in any such
request for a report shall be included in any draft report filed
after judgment pursuant to these rules. Objections to evidence
shall be accompanied by a statement of the grounds therefor
and shall be decided without argument unless the court calls
upon the parties to make such argument.
(b) Requests for Rulings. Requests for rulings shall be in
writing and be presented to the court before the beginning of
any closing arguments unless special leave is given to present
requests later. Whenever any request for rulings, founded upon
evidence, shall be refused upon the ground that it is inconsistent
with or inapplicable to the facts found, or because the facts
recited in the request are not found, the court shall state the
facts found, or the facts recited which it does not find, upon
which such refusal is based, unless the same 2, pear from
special findings filed. No review as of right shall lie to the
refusal of a request for a ruling “upon all the evidence” in a
case admitting of specification of the grounds upon which such
request is based unless such grounds are specified in the re-
quest, and then only upon the grounds so specified. Decisions
of the trial justice as to all requests for rulings duly filed shall
be in writing and shall be included in the report as allowed or
established.
(c) Requests for Reports and Draft Reports
(1) General Requirements and Time for Filing.
(i) Requests for Reports. A request for report shall
specify the party or parties making the request and shall
designate each ruling which is the subject of the request.
Such requests for reports shall be filed with the clerk of
the trial court within 10 days after entry of judgment.
Upon a showing of excusable neglect, the trial court may
i4a
extend the time for filing a request for report by any party
for a period not to exceed 10 days from the expiration of
the time otherwise prescribed by this rule. Such an exten-
sion may be granted before or after the original time
period prescribed by this rule has expired; but if a request
for an extension is made after such time has expired; it
shall be made by motion with such notice as the court
shall deem appropriate. Requests for reports shall be
deemed included in draft reports filed within the period
during which such requests for reports could have been
filed.
(11) Draft Reports. Parties requesting reports as provided
for in (i) above shall file drafts thereof within 10 days
after entry of judgment. Upon a showing of excusable
neglect, the trial court may extend the time for filing draft
reports by any party for a period not to exceed 10 days
from the expiration of the time otherwise prescribed by
this rule. Such an extension may be granted before or
after the time otherwise prescribed by this rule has ex-
pired, but if a request for an extension is made after such
time has expired, it shall be made by motion with such
notice as the court shall deem appropriate. The court may
for good cause shown, upon the filing of a motion therefor
within the time otherwise prescribed for the filing of the
draft report, extend the time for filing the draft report for
a reasonable time.
(iii) Effect of Certain Pending Motions. The running
of the time for filing a request for report and for filing a
draft report shall be terminated as to all parties by a timely
motion filed with the clerk of the trial court by any party
pursuant to the rules hereinafter enumerated in this sen-
tence, and the full time for filing requests for reports and
for filing draft reports as fixed by this rule shall commence
to run and shall be computed from the entry of any of the
15a
following orders made upon a timely motion under such
rules: (1) granting or denying a motion under Rule 52(b)
to amend or make additions findings of fact, whether or
not an alteration of the judgment would be required if the
motion be granted; (2) granting or denying a motion under
Rule 59 to alter or amend the judgment; (3) denying a
motion for a new trial under Rule 59.
(2) Contents of the Draft Report. The draft report shall state
the issues raised by the pleadings, shall set forth in clear and
concise terms the rulings upon which the party seeking the
report has requested and now asks for a review by the appellate
division, the state of the case at which and the manner in
which the same arose, how he claims to be prejudiced by such
rulings and any other facts essential to a full understanding of
the questions presented. A written decision or finding and any
special findings of facts by the trial justice shall be included
in all draft reports, and copies of the complaint or any pleading
necessary for the understanding or decision of the questions
involved shall be annexed to or incorporated in the draft report.
Papers on file in the case may not be incorporated by reference
except by permission of the appellate division. Such draft
report shall generally, as fully as may be, follow the model
printed as Form 33 at the end of these rules.
3) Furnishing Copies. A copy of such draft report shall
forthwith be delivered or mailed postage prepaid by the party
requesting the report to the trial justice addressed to him at
the court where the case was heard, and to the adverse party
or parties, before the close of the next business day after such
filing. Compliance with this rule shall not be adversely affected
nor impaired by the order or sequence of filing, delivering or
mailing said draft report and copies thereof, nor by the order
or sequence of receipt of the same.
(4) Hearings; Allowance or Disallowance of Draft Reports.
Any party may, within 15 days after the filing of a draft report,
16a
file a request in writing for a hearing thereon. Such a hearing
shall be held in any event unless the court intends to allow
the draft report as submitted. The justice shall, with reasonable
dispatch, and after a hearing, if one has been held, either settle
the form of his report or disallow the request for a report. He
may order the party requesting the report to prepare a copy of
the same as settled in form similar to said draft model and
submit the same to him for formal allowance within such time
as he may fix, and failure to comply with this order shall be
sufficient ground for disallowing the request for a report. Upon
receipt of a report as settled by him, the justice shall sign it.
The clerk shall forthwith notify the parties of the court’s action
and upon the allowance, or the establishment, of any report
as hereinafter provided, shall enter the cause upon the list of
causes to be heard by the appellate division. The justice may
amend his report after notice and hearing at any time prior to
the hearing upon the merits thereof by the appellate division
and said division may at any time re-commit the same for
amplification, correction or other amendment.
(5) Proceedings. Until the report is allowed, or if disallowed,
until a petition to establish the report is filed as hereinafter
provided, all motions and other interlocutory matters shall be
heard by the trial justice. After the report is allowed, or if the
request for a report is disallowed, after a petition to establish
the report is filed as hereinafter provided, all motions shall be
filed with the clerk of the trial court and by him forthwith
forwarded to the presiding justice of the appellate division. If
the trial justice disallows the request for the report he shall set
forth in writing succinctly the facts and reasons for such dis-
allowance. If final action by the trial judge upon any draft
report, other than upon an interlocutory matter, is not taken
within three months after the filing thereof, and no petition
for establishment of a report has been filed, the cause shall
proceed as though no request for report had been made, unless
17a
the appellate division for cause shown shall allow further time.
Notice under this rule shall be sent by the clerk to the parties
in the case fourteen days at least before the three months or
extended period expires.
(6) Dismissal of Draft Reports. If the party requesting the
report has failed to comply with the statutes or any of these
rules applicable to draft reports, the justice may dismis it, in
which case an aggrieved party who desires to raise the question
of the correctness of the said order of dismissal may file a
request for report and draft report on said dismissal and proceed
as provided in these rules.
(d) Reports of Interlocutory Rulings. Interlocutory rulings
may be reported in accordance with the procedure prescribed
above in paragraph (c), provided that if the court in its discre-
tion deems it appropriate, such rulings shall be reported without
delay to the appellate division. When the court so decides to
report such an interlocutory ruling without delay, it may order
that the party requesting the report prepare and file a draft
report thereof within a period specified by the court. Failure
of a party to comply with such an order shall constitute a
waiver of his right to request a report on the ruling at issue.
If no party has requested a report on an interlocutory ruling,
the court on its own initiative may report the ruling to the
appellate division.
(e) Establishment of Reports. Whenever a draft report
shall be disallowed by a justice as not conformable to the facts,
or shall be disallowed for any other cause, or if action on such
report is unduly delayed, the party seeking the same may
within 5 days after notice of such disallowance or such time
as the appellate division may allow in any other case, file with
the clerk his petition, including a copy of the draft report so
disallowed, and five copies thereof verified by affidavit of the
party or his attorney setting forth in full his request for such
report and all of the facts material thereto and shall forthwith
18a
give notice to the adverse party by delivering or mailing postage
prepaid to him or his attorney of record a copy of such petition
and affidavit. No party shall be allowed to establish the truth
of any such allegations if he has failed to comply with the
requirements herein prescribed. The five copies shall be for-
warded forthwith to the presiding justice of the appellate divi-
sion who may refer the matter for hearing and disposition to
any justice of said division and if not so referred the same
shall be in order to be heard by the appellate division. If said
petition is allowed and the report established, the same, as
allowed and established, shall be returned to the clerk of the
court from which the petition and affidavit were sent. Notice
of its receipt shall be given by him to all of the parties and
the cause shall proceed as if the report had been allowed by
the trial justice. The justice of the appellate division to whom
may be assigned such a petition and affidavit for hearing and
disposition, or the justices of the appellate division if said
petition shall be heard by them, shall have the right and author-
ity to summon and hear the parties and witnesses and to estab-
lish the report according to his or their findings of the facts
or issue between the parties as to the form and content of the
report. If the petition is denied either by the justice or the
appellate division, it shall with the endorsement thereon of
such denial be returned to the clerk of the originating court
who shall notify all the parties and the case shall be disposed
of as if no request for report had been made. Requests which
relate to matters of law which might have been presented at
the hearing on the merits and made the subjects of a report in
the event of adverse rulings may not be raised as of right in
connection with a petition to establish a report.
(f) Appellate Division Procedure. After notice of the allow-
ance or establishment of a report, 15 days, exclusive of Sundays
and holidays, shall be allowed the parties for filing briefs
unless upon good cause shown further time is allowed by the
19a
appellate division. The party seeking the report shall aiso file
within said 15 days five additional copies of the report as
allowed or established. There shail be filed with the clerk five
copies of each brief, together with one additional copy for
each adverse party. The cierk shall upon the expiration of said
15 days forthwith forward said reports and briefs to the pre-
siding justice of his appellate division except those filed for
the adverse party, together with five copies of the docket
entries in said cause. The cause shall then be in order for
argument in the appellate division at the time and place of its
sitting as the presiding justice may direct. If any party be
absent or not ready for argument when reached, said division
may dispose of the cause as justice may require. Each party
will be allowed one-half hour for argument unless said division
shall extend the time. The party who requested the report shall
have the right to open and close. Supplemental briefs may be
filed with the appellate division by its consent or at its request.
No oral argument will be heard in behalf of a party for whom
briefs have not been filed as provided in this rule unless by
special permission of the appellate division. The appellate ,
division need not pass upon questions or issues not argued in
briefs. Nothing argued in a brief shall be deemed to be waived
by a failure to argue oraliy.
The draft report and all papers intended for use before the
appellate division shall, unless the appellate division shall
otherwise order, be printed or typewritten upon opaque paper
having a dull surface. The typewriting or printing shall be
double-spaced except for indented quotations which may be
single-spaced and only one side of each page shall be written
upon. The paper shall be 82 inches in width and 11 inches
in height. Briefs shall be signed by counsel, or by the party,
and shall contain the points and authorities upon which the
party relies, and his arguments upon them. When the construc-
tion or effect of a constitutional provision, statute, rule of
20a
court, administrative regulation, or municipal ordinance or
by-law is drawn in question, its text, so far as material, shall
be set forth. Facts or evidence relied on shall be referred to
by the page of the report. Briefs not in substantial compliance
with this rule shall not be received unless the presiding justice
shall otherwise order.
(g) Unnecessary Delay. if a party whose request for a report
has been allowed or established shall not prosecute the same
promptly by preparing the necessary papers or otherwise as
herein provided, the appellate division may upon motion or
of its own initiative order the cause to proceed as though no
such claim had been made, and may impose double costs or
take such action as justice may require. Any such motion shall
be filed with the clerk of the originating court and by him
promptly forwarded to the presiding justice of the appellate
division.
(h) Appellate Division Sittings. The appellate division of
the District Courts shall sit at such times and places within
each district as the presiding justice of that district may direct.
The appellate division of the Boston Municipal Court shall sit
at such times as the Chief Justice of that court may direct. At
the beginning of each such sitting the list of all cases to be
heard at such sitting shall be called. All motions to be heard
by the appellate division shall be in conformity to the rules
and filed with the clerk of the court in which the case is pending
not less than 5 days prior to the sitting of said appellate division
at which said motion is to be presented, and forwarded forth-
with by the clerk to the presiding justice. The finding or order
upon motions or other interlocutory matters may be signed by
the presiding justice or any justice of the appellate division.
(i) Decisions of the Appellate Division. If the appellate
division shall decide that there has been no prejudicial error
in the rulings complained of, it shall dismiss the report and
may impose double costs in the action if it finds the objection
2la
to such rulings frivolous or intended for delay. If the appellate
division shall decide that there has been prejudicial error in
the rulings complained of, it may reverse, vacate or modify
the same, or order a new trial in whole or in part. The decision
of the appellate division shall be signed by the justices making
the same and filed in the clerk’s office in which the cause
originated, and notice thereof given by the clerk to the parties.
(j) Further Appellate Review. The Massachusetts Rules
of Appellate Procedure govern appeals from decisions of the
appellate division of the District Courts.
Amended June 19, 1975, effective July 1, 1975.
22a
Appendix D
COMMONWEALTH OF MASSACHUSETTS.
SUPREME JUDICIAL COURT FOR THE COMMONWEALTH,
AT BOSTON, April 21, 1987.
In The Case No. SJC-4247
PATRICIA DIGHTON & others
vs.
FEDERAL PACIFIC ELECTRIC COMPANY: SERT,
JACKSON & ASSOCIATES INCORPORATED & others,
third-party defendants (and a companion case)
pending in the Superior Court Department of the Trial
Court for the County of__ Suffolk No. 65216; 65217
Ordered, that the following entry be made in the docket;
vix.,—
The judgments of dismissal are affirmed.
By The Court,
/s/ Jean M. Kennett , Clerk.
April 21, 1987
See opinien on file.
23a
399 Mass. 687 687
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
PATRICIA DIGHTON & others' vs. FEDERAL PACIFIC ELECTRIC
COMPANY; SERT, JACKSON & ASSOCIATES, INCORPORATED &
others’, third-party defendants (and a companion case’).
Suffolk. January 8, 1987. — April 21, 1987
Present: HENNESSEY, C.J., WiLkins, Liacos, ABRAMS & NoLan, JJ.
Joint Tortfeasors. Contribution. Negligence, Statute of repose, Supplier.
Statute, Construction. Constitutional Law, Equal protection of laws.
Uniform Commercial Code, Sale of goods. Words, “Improvement to
real property.”
In tort actions with respect to a circuit breaker panel manufactured by the
defendant and located in a building which was destroyed by fire, the
judge did not err in dismissing the defendant's third-party complaint
seeking contribution from the building's architect, against whom the
plaintiffs’ claims were barred by G. L. c. 260, § 2B, a statute of repose
limiting the time within which an action in tort against the architect
might have been brought. [691-692]
Application of G. L. c. 260, § 2B, a statute of repose, to bar a defendant
in certain tort actions from seeking contribution did not abridge its right
to a remedy by recourse to laws, as guaranteed by art. |! of the Massa-
chusetts Declaration of Rights, absent a claim by the defendant that
§ 2B operated to deny it any fundamental right, or any right against a
third-party defendant that vested prior to the enactment of § 2B. [692-
693]
This court declined to reconsider its holding in Klein v. Catalano, 386
Mass. 701 (1982), that G. L. c. 260, § 2B, which places a time limit
on the tort liability of architects and others involved in the design,
planning, construction, or administration of improvements to real prop-
erty, does not violate the equal protection guarantee of the Fourteenth
Amendment to the Federal Constitution for its failure to protect suppliers,
whose situations are similar to those of the protected entities. [693]
‘George P. Dighton and Christopher Dighton.
* General Electric Company; Kaiser Aluminum and Chemical Corp.; Levi-
ton Manufacturing Co., Inc.; and Arvin Industries, Inc.
‘Leslie W. Abbott, administratrix of the estate of James Abbott, and
Richard Stafford, administrator of the esiate of Casandra Chiminello vs.
Federal Pacific Electric Company; Sert, Jackson & Associates, Incorporated
& others, third-party defendants
|
24a
688 399 Mass. 687
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
A manufacturer who supplied a construction component that became an
integral part of a building, but who did not render any particularized
services with respect to the design or construction of the building, was
not one of the class of entities involved in the “design, planning, construc-
tion or general administration of an improvement to real property” within
the meaning of G. L. c. 260, § 2B, a statute of repose which places a
time limit on the tort liability of architects and building contractors.
[694-696]
The acts of designing, manufacturing, and supplying a circuit breaker panel
that became an integral part of a building did not constitute the “design,
planning, construction or general administration of an improvement to
real property” (emphasis supplied) within the meaning of G. L. c. 260,
§ 2B, a statute of repose which places a time limit on the tort liability
of architects and building contractors. [696-698]
The limits of tort liability of a manufacturer who supplied a construction
component that became an integral part of a building which later was
destroyed by fire were governed by provisions of the Uniform Commer-
cial Code, rather than by G. L. c. 260, § 2B, a statute of repose which
places a time limit on the tort liability of architects and building contrac-
tors. [698-699]
CIVIL ACTIONS commenced in the Superior Court Department
on November 18, 1983.
After the cases were consolidated for trial, motions to dismiss
were heard by John J. Irwin, Jr., J., and questions of law
were reported by him to the Appeals Court. The Supreme
Judicial Court granted a request for direct review.
Stephen M. A. Woodworth for Federal Pacific Electric Com-
pany.
Carol A. Griffin for Sert, Jackson and Associates, Inc.
Cornelius J. Moynihan, Jr. (Patricia A. McEvoy with him)
for Kaiser Aluminum & Chemical Corporation.
Martin S. Cosgrove for the plaintiff.
Liacos, J. The defendant and third-party plaintiff, Federal
Pacific Electric Company (Federal Pacific), asks us to recon-
sider whether a manufacturer is protected by the so-called
“statute of repose,” G. L. c. 260, § 2B* (hereafter § 2B);
“General Laws c. 260, § 2B, inserted by St. 1968, c. 612, and amended
by St. 1973, c. 777, § 2, reads as follows:
25a
399 Mass. 687 689
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
and, if not, whether the statute is unconstitutional because it
is violative of the Fourteenth Amendment to the Constitution
of the United States or art. 11 of the Constitution of the Com-
monwealth.
These questions come to us on a scanty record, comprised
largely of the pleadings. Nonetheless, the following facts are
not disputed. On November 18, 1980, fire ravaged an apartment
at 120 Ironside Way in Charlestown, the residence of Patricia
Dighton and her family. As a result of that fire, death came
to Dighton’s foster children, James Abbott and Casandra
Chiminello. Dighton and her two sons were injured as well.
Three years later, Dighton and her sons brought suit in
Suffolk Superior Court against Federal Pacific, alleging negli-
gence and breach of warranty with respect to a circuit breaker
manufactured by the defendant and “located on the premises”
where the fire occurred. On the same date, a similar action
for wrongful death was brought against Federal Pacific by
Leslie W. Abbott and Richard Stafford, acting in their respec-
tive Capacities as administrators of the estates of James Abbott
and Casandra Chiminello. On a motion by Federal Pacific,
these actions were consolidated.
In 1985, the judge permitted Federal Pacific to implead
several third-party defendants as to both actions. Among these
was the architectural firm which had designed the building,
Sert, Jackson & Associates, Incorporated (Sert Jackson).° In
“Actions 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 performance or furnishing of such design, planning, construc-
tion or general administration.”
The statute was further amended through St. 1984, c. 484, § 53, in ways
not material to this case. No party disputes that the plaintiffs brought their
actions “within three years next after the cause of action accrue[d].” At
issue is the protective scope of the proviso which precludes recovery where
actions are “commenced more than six years after the performance or fur-
nishing™ of designated services.
‘See note 2 supra. Kaiser Aluminum and Chemical Corp. has submitted
a brief.
SE
; 26a
690 399 Mass. 687
—____.
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
1986, the judge granted Sert Jackson's motion to dismiss Fed-
eral Pacific’s third-party complaint because Sert Jackson could
be liable for contribution only if it could be directly liable to
the plaintiffs, see Liberty Mut. Ins. Co. v. Westerlind, 374
Mass. 524 (1978), and because any direct claims by the plain-
tiffs against Sert Jackson were barred by § 2B. Separate and
final judgment was entered for Sert J ackson, and Federal Pacific
appealed.
At the time he granted Sert Jackson’s motion, the judge also
denied a motion by Federal Pacific under Mass. R. Civ. P.
12 (b) (6), 365 Mass. 754 (1974), to dismiss the plaintiffs’
claims. Federal Pacific claimed the protection of § 2B, arguing
that, as one similarly situated to architects, it was entitled to
the same statutory protection under G. L. c. 260, § 2B, as
Sert Jackson. Federal Pacific had conceded in its memorandum,
however, that its status was solely that of “a supplier and a
manufacturer of a construction component”; the judge noted
as well that the defendant did not claim to have rendered any
“construction services.” Relying on what was said about the
intended scope of § 2B in Klein v. Catalano, 386 Mass. 701
(1982), the judge ruled that Federal Pacific, “as a supplier,
does not fall within the Statutory class envisioned by the legis-
lature.” Relying on what was said in Milligan v. Tibbetts Eng’ g
Corp., 391 Mass. 364 (1984), the judge held that Federal
Pacific’s circuit breaker panel “did not constitute - a
improvement to real property” under § 2B because it was
neither “permanent” nor “intimately connected with the real
property.’ The judge then exercised his discretion pursuant to
Mass. R. Civ. P. 64, 365 Mass. 831 (1974), and reported to
the Appeals Court the following questions of law: “1. Under
G. L. c. 260 § 2B is a manufacturer who supplies a construc-
tion component that becomes an integral part of structure within
the class of entities involved in ‘the design, planning, construction
or general administration of an improvement to real property.*?
2. Do the acts of designing, manufacturing and supplying a
circuit breaker panel that subsequently becomes an integral
part of a structure constitute an ‘improvement to real property’
within the meaning of G. L. c. 260 § 2B?” The Appeals
27a
399 Mass. 687 691
Dighton v. Federal Pacific Electric Co.: Sert, Jackson & Associates, Inc.
Court granted a motion by Federal Pacific to consolidate the
judge’s reports and its appeals of his orders dismissing the
third-party actions against Sert Jackson. We granted Federal
Pacific’s application for direct appellate review.
Federal Pacific advances several arguments in support of its
contention that the judge erred by dismissing its third-party
complaint against Sert Jackson. It also argues, with respect to
the court’s denial of its own motion to dismiss, that we should
adopt one of two alternative positions: (a) that the judge should
have construed § 2B to include Federal Pacific within its pro-
tective ambit; or (b) that the judge construed § 2B correctly,
but that such a construction renders § 2B unconstitutional under
the Fourteenth Amendment, with the result that the judge’s
order dismissing Federal Pacific’s claims against Sert Jackson
must be reversed.
We hold that dismissal was properly ordered as to Sert
Jackson. We further hold that the judge properly denied Federal
Pacific’s motion to dismiss. We answer both of the reported
questions in the negative.
1. Dismissal of the third-party complaint. Federal Pacific
argues that § 2B does not apply to its third-party action for
contribution because § 2B, by its terms, only bars any
“[a]ctions of tort.” Contribution is available, however, only
“where two or more persons become jointly liable in tort”
(emphasis supplied). G. L. c. 231B, § 1 (a), inserted by St.
1962, c. 730, § 1. The right to contribution is derivative of
the joint liability in tort of the third-party plaintiff and the
third-party defendant. See generally O’Mara v. H.P. Hood &
Sons, 359 Mass. 235, 238 (1971), and cases cited. See also
Liberty Mut. Ins. Co. v. Westerlind, supra. Without liability
in tort, there is no right to contribution. James Ferrera &
Sons v. Samuels, 21 Mass. App. Ct. 170, 174 (1985).
* The plaintiffs allege that Federal Pacific was not only negligent in the
manufacture of its product but also in breach of warranty. However, any
claim for breach of warranty pursuant to G. L. c. 106, § 2-314 (1984 ed.),
States a cause of action which sounds, like negligence, in tort and not in
contract. Wolfe v. Ford Motor Co., 386 Mass. 95, 98 (1982). Back v.
Wickes Corp., 375 Mass. 633, 640 (1978).
28a
692 399 Mass. 687
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
Federal Pacific claims, in addition, that since “ ‘misuse’ of
a product by an architect” is alleged in the third-party com-
plaint, it is not barred by the language of § 2B. “Misuse,”
however, is clearly encompassed within the statutory reference
to “any deficiency or neglect in the design, planning, construc-
tion or general administration of an improvement to real prop-
erty” (emphasis supplied). G. L. c. 260, § 2B.
Federal Pacific cites, as authority for its contention, our
statement that “[a]n action for contribution is not barred if, at
the time the tortious activity occurred, the party from whom
contribution is sought could have been held liable in tort”
(emphasis in original). McGrath v. Stanley, 397 Mass. 775,
781 (1986). McGrath is inapposite. In that decision, we con-
sidered the effect on the third-party plaintiffs’ rights to contribu-
tion from a public entity where primary plaintiffs were barred
from suing the public entity directly, due to the plaintiffs’
failure to make timely presentment as required by the Massa-
chusetts Tort Claims Act, G. L. c. 258, § 4 (1984 ed.). In
those circumstances, we held that c. 258 did not require dismis-
sal of the third-party complaint because, by its explicit lan-
guage, “(t]he Legislature simply created an exemption from
the notice provisions of § 4 for all third-party claims regardless
of whether presentment had been made by the party originating
the action.”” McGrath, supra at 780.’ No analogous exemption
appears in § 2B to suggest a legislative intent to permit third-
party actions that would otherwise be prohibited by § 2B.
Federal Pacific also maintains that, because its liability may
result solely from the architect's negligence, denial of the right
to seek contribution is violative of art. 11 of the Massachusetts
Declaration of Rights. What was said of the plaintiff in Klein
v. Catalano, 386 Mass. 701 (1982), may be said of Federal
Pacific as third-party plaintiff here: “We agree . . . that G. L.
c. 260, § 2B, does abolish [the] cause of action against [Sert
Jackson] without providing an alternative remedy.” /d. at 711.
’The relevant language of exemption in G. L. c. 258, § 4, is: “The
provisions of this section shall not apply to such claims as may be asserted
by third-party complaint, cross-claim or counterclaim.”
29a
399 Mass. 687 693
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
But while art. 11 guarantees the right to “a certain remedy,
by having recourse to the laws, for all injuries or wrongs,”
Federal Pacific does not claim that § 2B operates to deny it
any fundamental right, nor any right against Sert Jackson that
vested prior to the enactment of § 2B. In these circumstances,
there is no escape from our prior holding that application of
§ 2B does not violate art. 11. Jd. at 711-713.*
The judge did not err in ruling that § 2B applied to Sert
Jackson’s motion for dismissal.
2. Construction and constitutionality of § 2B. While Federal
Pacific acknowledges that we recently have held to the contrary,
see Klein, supra, it urges us either to construe § 2B as including
it within the class of protected defendants, or to declare that
the statute violates the equal protection guarantees of the Four-
teenth Amendment for its failure to protect suppliers whose
situations are similar to those of protected architects, construc-
tion engineers, and contractors. For the reasons stated in our
Klein decision, we continue to hold that § 2B is constitutional
even if construed to exclude “suppliers, owners, tenants, and
others in possession or control” but not “architects, engineers,
contractors and others involved in the design, planning, con-
struction, or general administration of improvements to real
property.” Klein, supra at 715, 717.°
‘Federal Pacific also claims that the judge erred in permitting Sert Jackson
to benefit from § 2B because “it is unclear if c. 260 Section 2B is even,
generally, founded upon a valid state or public interest as the statute may
encourage a builder or architect to perform in a less than workmanlike
manner, secure in the knowledge that he will be immune from liability after
the passage of six years.” Were we inclined to read between the lines of
this cryptic comment, we might infer a challenge to the validity of § 2B
under the due process clause of the Fourteenth Amendment. Because this
question is inadequately argued in Federal Pacific’s brief, we will not
address it. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
We note, however, that we have held that § 2B does not violate Federal
guarantees to due process. Klein, supra at 707-711.
*The equal protection arguments raised by Federal Pacific were fully
aired and answered in Klein. Federal Pacific merely lists a number of bases
upon which we held that the Legislature might conceivably have made a
rational choice to protect a limited class of defendants; then it asserts that,
because those particular bases apply equally to it, its situation is wholly
rd
30a
694 399 Mass. 687
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
We consider the questions reported. The judge has framed
the single question, whether Federal Pacific is entitled to the
protection of § 2B, in bipartite form, asking first whether Fed-
eral Pacific, as a supplier of construction components, is an
actor comprehended by § 2B, and then asking whether its acts
— designing, manufacturing, and supplying a circuit breaker
paisel — are comprehended within the statutory reference to
“design, planning, construction or general administration of
an improvement to real property.”
On its face, § 2B defines the protected actor largely by
reference to protected acts. The body of § 2B names no class
of protected actors. Rather, its terms extend protection to per-
sons allegedly responsible for acts, i.e., those who commit
“any deficiency or neglect in the design, planning, construc-
tion, or general administration of an improvement to real prop-
erty.”
“Our task is to interpret the statute ‘according to the intent
of the Legislature ascertained from all its words construed by
the ordinary and approved usage of the language, considered
in connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be ac-
complished, to the end that the purpose of its framers may be
effectuated.’ /ndustrial Fin. Cerp. v. State Tax Comm’ n, 367
Mass. 360, 364 (1975), quoting Hanlon v. Rollins, 286 Mass.
444, 447 (1934).” O’Brien v. Director of the Div. of Employ-
ment Sec., 393 Mass. 482, 487-488 (1984).'°
indistinguishable from that of protected defendants. Federal Pacific ignores
those bases alluded to in Klein which do not apply to it, e.g., the difficulties
arising where “[a}rchitectural plans may have been discarded, [or] copies
of building codes in force at the time of construction may no longer be in
existence. .. .” Klein, supra at 709-710. And it ignores the distinction
drawn in Klein between the situations of builders and suppliers “because
they work under dissimilar conditions.” /d. at 716. We see no reason to
reconsider our holding on the constitutional question determined by Klein.
'° The legislative history of § 2B is repiete with references to classes of
actors, such as architects, engineers, contractors, and surveyors. See 1967
House Doc. No. 2603; 1967 House Doc. No. 4815; Report of the Legislative
Research Council Relative to a Statute of Limitations for Malpractice Against
Architects, Engineers and Surveyors, 1968 Senate Doc. No. 1050; 1968
Senate Doc. No. 339. None of these sources refers at all to problems of
3la
399 Mass. 687 695
Dighton v. Federal Pacific Electric Co.; Sent, Jackson & Associates, Inc.
On the same day we decided Klein, we remanded a similar
case where “it [was] not clear whether [the defendants] were
materialmen, whether they rendered architectural or engineer-
ing services for the construction of the building . . . or whether
they furnished both supplies and engineering or architectural
services.” King’s Dep't Stores, Inc. v. Poley-Abrams Corp.,
386 Mass. 1008, 1009 (1982). We indicated, “‘[t]o the extent
that these defendants are materialmen, they are not within the
protection of G. L. c. 260, § 2B.” Jd. Just as clearly, any
conclusion that Federal Pacific was merely a materialman (and
therefore a nonprotected actor) requires a finding that Federal
Pacific had not performed protected acts, i.e., that Federal
Pacific had not “rendered architectural or engineering services
for the construction of the building.” Conversely, when faced
with cases in which the defendants were protected by § 2B,
see Anthoney’s Pier Four, Inc. v. Crandall Dry Dock Eng’ rs,
Inc., 396 Mass. 818 (1986); Milligan v. Tibbetts Eng’ g Corp..,
391 Mass. 364 (1984); Raffel v. Perley, 14 Mass. App. Ct.
242 (1982), the courts of this Commonwealth have focused
their inquiry on whether the acts alleged to have caused injury
were performed with respect to “improvement to real estate.”
See Anthony's Pier Four, Inc., supra at 823 n.8; Milligan,
supra at 366-368; Raffel, supra at 243-245.
Because “the inspection, supervision and observation of con-
struction by architects and contractors involves individual ex-
pertise not susceptible of the quality control standards of the
factory” (emphasis supplied), Burmaster v. Gravity Drainage
Dist. No. 2 of the Parish of St. Charles, 366 So. 2d 1381,
nents, although the problems anticipated by architects and engineers were
understood to result from the decline of the “privity” doctrine. See Klein,
supra at 708 n.7 (1982); 1968 Senate Doc. No. 1050, at 16-17. However,
the relevance of these sources is doubtful. “[W]here the language of the
statute is plain and unambiguous, . . . iegislative history is not ordinarily
a proper source of construction.” Hoffman v. Howmedica, Inc., 373 Mass.
32, 37 (1977). 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 or as an architect, engineer,
contractor, or surveyor.
32a
696 399 Mass. 687
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
1386 (La. 1978), we think that the Legislature, by enacting
§ 2B, meant to protect providers of “individual expertise” in
the business of designing, planning, constructing, and adminis-
tering improvements to real estate. We reiterate that § 2B was
intended not to apply to mere suppliers of standardized prod-
ucts, but only to the kinds of economic actors who perform
acts of “individual expertise” akin to those commonly thought
to be performed by architects and contractors — that ts to say,
to parties who render particularized services for the design and
construction of particular improvements to particular pieces of
real property.
Federal Pacific does not claim to have rendered any such
particularized services with respect to design or construction
of the building which burned. Thus, it clearly falls outside that
class of economic actors which § 2B was intended to protect.
In this regard, however, Federal Pacific argues that, because
it designed, manufactured, and supplied a component which
became affixed to real property, it was involved sufficiently
in acts relating to an “improvement to real property” for us to
hold that the Legislature intended it to benefit from the protec-
tion of § 2B. We disagree.
To begin, we note that “[t]he statute does not define ‘im-
provement,’ Raffel, supra at 243, and “{t}he legislative history
of G. L. c. 260, § 2B, does not indicate precisely what the
Legislature meant the term to encompass.” Milligan, supra at
366. Federal Pacific invites us to make the scope of § 2B
dependent on the common law of “fixtures.” But § 2B makes
no reference to “fixtures,” nor does it appear that the Legislature
intended, by its choice of the common term “improvement,”
to subsume that tangle of highly technical meanings, often
distinct in diverse legal contexts, which is the law of fixtures.
We align ourselves with “[t}he overwhelming majority of courts
[which] have eschewed a rigid fixture analysis . . . .” Heller,
The District of Columbia’s Architects’ and Builders’ Statute
of Repose: Its Application and Need for Amendment, 34 Cath.
U.L. Rev. 919, 932 (1985)."'
'' The plaintiffs argue that the test should be that which the judge applied,
one which asks whether the product alleged to have caused harm was
33a
399 Mass. 687 697
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
Federal Pacific also argues that it should be protected by
§ 2B because, when incorporated into the building that was
burned, its circuit breaker panel constituted an “improvement”
within the definition of that term which appears in Webster’s
Third New Int’l Dictionary 1138 (1971).'? Admittedly, we
have said that it is not “out of place” to consider Webster's
definition, Milligan, supra at 368. Accord Raffel, supra at
245. See also Anthony’s Pier Four, Inc., supra at 823 n.8. In
none of those cases, however, was the defendants’ status as a
protected actor in doubt. Where the actor is clearly within the
Statute, as an architect or a construction engineer, the use of
a broad definition such as Webster’s is apt to give full scope
to the remedial purposes of § 2B when divining whether the
allegedly tortious act is also within the statute. Here, however,
we are urged to use that definition for a different purpose —
to decide which actors were intended to be comprehended by
§ 2B. The utility of the definition is doubtful in this context.
For example, if a piece of metal sculpture were welded to
an exposed girder in a building, it certainly could be charac-
terized as “a permanent addition to or betterment of” the prop-
erty, one “enhanc[ing] its capital value,” one “involv{ingj the
expenditure of labor or money,” one “designed to make the
property more ... valuable,” and one clearly “distin-
guish[able] from ordinary repairs.” But would that tell us
whether, or to what extent, the sculptor had been involved in
the protected activity of “improvement to real property?” We
permanently affixed to real property. This distinction gives rise to problems
of line-drawing analogous to those encountered with respect to fixture
analysis. For example, a circuit breaker panel may be intended by the
installer to be as “permanent” as a window or a shingle or a length of
electrical wiring. However, like a window which breaks, or a shingle that
wears Out, or a wire that “shorts,” a circuit breaker panel 1s replaceable if
need be; and, in that sense, none of these can be called “permanent” in
fact. Because we construe the scope of § 2B to turn on questions of fact
not at issue here, we also reject the argument advanced by Kaiser Aluminum
that summary judgment was granted prematurely in this case
'? Webster's defines “improvement” as: “[A] permanent addition to or
betterment of real property that enhances its capital value and that involves
the expenditure of labor or money and is designed to make the property
more useful or valuable as distinguished from ordinary repairs.”
34a
698 399 Mass. 687
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc
think not. If he produced the sculpture on commission by the
developer to specifications provided in part by the architect
and the engineer, we might conclude that he is protected by
§ 2B; but if he mass-produced the sculpture and sold it for use
in a variety of contexts, or for incorporation into any building,
we would conclude that he had been involved merely in the
activity of producing and selling a fungible commodity, and
not in the activity of improving real estate.
Thus, the fact that a producer’s product may be usable by
persons involved in protected acts tells us nothing about
whether the producer’s activity is protected, even though the
product may fit within Webster’s definition of an “improve-
ment.” That the use involves affixation to real property is
likewise of no consequence, nor is the permanence of the
fixation.
We are led by our analysis to agree with the plaintiffs, that
Federal Pacific can best be described as a producer and seller
of “goods,” '* and the limits of its liability are governed by
G. L. c. 106, § 2-318, not by § 2B. To be sure, the goods
sold were usable in what became an improvement to real prop-
erty. 1.e., construction of the building, but the activity of de-
signing, producing, and marketing those goods was no more
involved in the protected activity of improving real property
than would be Sert Jackson’s activity of designing hammers,
should the latter undertake to do so. Thus, we conclude that
the Legislature intended tort actions arising from such activity
to be governed by provisions of the Uniform Commercial
Code'* and not by § 2B.
This conclusion is further supported by our realization that,
when § 2B was enacted in 1968, the liability of manufacturers
and suppliers for injuries caused by the failures of their products
was already encompassed to a certain extent within the General
‘It is indisputable that, at the moment when Federal Pacific's circuit
breaker panel was “identified” to its contract of sale for use in the subject
building, that product was “movable” and thus an item of commercial
“goods” within the meaning of the Uniform Commercial Code. See G. L.
c. 106, § 2-105 (1) (1984 ed.).
‘*See note 6 supra.
35a
399 Mass. 687 699
Dighton v. Federal Pacific Electric Co.; Sert, Jackson & Associates, Inc.
Laws. SeeG. L.c. 106, §§ 2-314 and 2-318 (implied warranty
of merchantability actionable in limited circumstances, absent
privity of contract).'* Actions based upon these laws were also
governed by an existing statute of limitations. SeeG. L.c. 106,
§ 2-725 (1984 ed.). We assume, of course, that the Legislature
was aware of these provisions of the Uniform Commercial
Code when it enacted § 2B. See Hadley v. Amherst, 372 Mass.
46, 51 (1977). We are mindful, as well, that we cannot constzue
§ 2B to have repealed, or superseded, these provisions, even
in part, unless we find in § 2B “express words” or a “clear
implication” to that effect. Cohen v. Price, 273 Mass. 303,
309 (1930). We find neither. Both reported questions are
answered, “No,” and the judgments of dismissal are aifirmed.
So ordered.
'* Section 2-318 of c. 106 was first amended in 1971 to abolish entirely
the requirement of privity of contract. See St. 1971, c. 670, § 1. That
amendment applies only to sales made on or after this effective date. /d.
at § 2. We express no opinion as to whether the plaintiffs’ actions for breach
of warranty, if not barred by § 2B, may nonetheless be barred by the privity
requirements stated in the original version of § 2-318. See St. 1957, c. 765,
§ 1.
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