Petition for Writ of Certiorari — Snow v. Harnischfeger Corp.

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

’ riL Ee D

981 7 0 0 APR 2 6 1994

QFFKCE OF THE CLERK

In The

Supreme Court of the United States

o—

October Term, 1993

DAVID SNOW, LINDA SNOW, JASON SNOW and KEVIN

SNOW,

Petitioners,

VS.

HARNISCHFEGER CORPORATION,

Respondent.

Petition for Writ of Certiorari to the United States Court of

Appeals for ihe First Circuit

PETITION FOR WRIT OF CERTIORARI

WALTER A. COSTELLO, JR.

Counsel of Record

COSTELLO, BARRETT

& GONTHIER, P.C.

Attorneys for Petitioners

314 Essex Street

Salem, Massachusetts 01970

(508) 745-8670

5120

L late (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

QUESTIONS PRESENTED

|. Whether the First Circuit Court of Appeals’ refusal to

utilize all available means, including certification to the

Massachusetts Supreme Judicial Court, to determine the meaning

and scope of an unclear state statute (i.¢., M.G.L. c. 260, § 2B)

which was central to the disposition of the case at bar and on which

no state cases on point exist constitutes a violation of David

Snow’s, et al., due process and equal protection rights, an

encroachment on the state’s power and obligation, in derogation of

the Tenth Amendment to the United States Constitution, to protect

the rights of Snow, etal. as delineated by the state, and an affront to

the interests of comity, federalism and the Erie doctrine?

2. Whether in asummary judgment motion the district court’s

crediting of the respondent’s, Harnischfeger Corp., evidence as

submitted in deposition, court transcription, and experts’ affidavits

and the court’s concomitant discrediting of the nonmovant

petitioners’, David Snow, ef al., evidence which was directly

opposite that of Harnischfeger Corp., together with the court’s

failure to view the record in the light most favorable to the

nonmovant, Snow, et al., was prohibited by the Federal Rules of

Civil Procedure, as interpreted in federal case law, and a violation

of Snow’s, et al., due process and equal protection rights

guaranteed by the Fifth and Fourteenth Amendments to the United

States Constitution?

TABLE OF CONTENTS

Page

CONBSTIUMS TUUUONING oc ccccccccccssssesusevessaue i

pt PETIT TTTT TET er ree ee ii

PPG G IED oc ccccrescvacsetesaucesseuanee iv

COR TNUNS. cccccecesecvesvetestenscenareree l

DUSOSMNOU OE FUSIBGNCTIOR nw ccc cccrceccevesucceenen |

Statutes, Rules and Constitutional Provisions Involved . . 2

SRSGRETL CE IOC occ ccicceccccesvitaveersanaien 4

A. Proliminary Statement .......ccccccccsvevses 4

B. Backgroundand Statementof Facts ........... 5

Reasons for Granting the Writ ..................200-. 8

I. The appeals court erred in affirming the district

court’s decision which found a large, manually

operated crane to be an improvement to real

property, thus bestowing exemption from tort

liability upon the manufacturer of the crane and

facilitating the allowance of summary judgment

pursuant to M.G.L.c.260,§2B. .............. 8

A. TheCraneasanImprovement ............ 8

B. Summary Judgment ........cccccccceees 11

II.

Il.

IV.

VI.

Contents

Pursuant to the Erie doctrine and 28 U.S.C.

§ 1652, Snow was entitled to have his claim

decided under Massachusetts state law. ........

Snow was deprived of his due process and equal

protection rights because its claims were not

adjudicated pursuant to a definitive interpretation

DUNNE CUbdbdsedevtvecevsuCeeedieesees

Clarification by the Massachusetts Supreme

Judicial Court of the meaning of 2B in relation to

large, industrial, manually operated machinery

will eliminate Snow’s constitutional claims.

The failure of the United States Supreme Court to

provide adequate guidance to the district and

appeals courts regarding the certification to state

supreme courts of questions of unclear state law

prejudiced Snow’s interests, and without proper

guidance, courts will continue to err by failing to

certify questions of state law, to the prejudice of

id eae ia Gewae wikweiiv eww ve

Snow’s claims intimately involve important public

policy considerations in which Massachusetts has a

TEE Bia winwe'e we vden« edive esos

Page

Contents

Page

TABLE OF CITATIONS

Cases Cited:

American Fid. & Cas. Co. v. Indemnity Ins. Co. of North

America, 308 F.2d 697 (6th Cir. 1962) ............. 14

Andella v. Westinghouse Elevator Co., Middlesex 89-5431

Se bas cneae keener dec tierasncueererekaaees 22

Barbosa v. Hopper Feeds, Inc., 404 Mass. 610(1989) ... 11

Bellotti v. Baird, 428 U.S. 132(1976) ................ 18,20

Bernhardt v. Polygraphic Co. of America, 350 U.S. 198

CEE ee bG ec xb secu baenedba en eueebien Kees 20

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) .. 22

Byrd v. Blue Ridge Cooperative, 356 U.S.525 (1958) .... 24

Chesterton v. Jordan Marsh Co., Norfolk 141724 (1984) . 22

Clay v. Sun Insurance Office, 363 U.S. 207 (Sth Cir. 1960) ,

EET CET ee eT eT TE ETT LT Ter rere |

Commercial Wharf East Condo, Assoc. v. Waterfront

Parking Corp., 407 Mass. 123 (1990) .............. 24

Conley v. Scott Products, 401Mass.645(1988) ........ 10

Contents

Page

Cumberland and Ohio Co. of Texas, Inc. v. First American

National Bank, 936 F.2d 846 (6th Cir. 1991), cert.

denied, 112 S. Ct. 878 (1992) .......ccecececeeees 20

Dept. of Environmental Quality Engineering v. Town of

Hingham, 15 Mass. App. Ct. 409 (1983) ..........-- 24

Dighton v. Federal Pacific Electric Co., 399 Mass. 687

(OGG) ccncdccccvesssvecdcveseenesetteesrsesve 9,10

Dorman v. Scotti, 862 F.2d 432 (D. Conn. 1988) ........ 22

Emerson v. Holloway Concrete Prods. Co., 282 F.2d 271

(Sth Cir. 1960), cert. denied, 364 U.S. 941, 81S. Ct. 459,

SE. BA DEFT BCISS) 6 ce ccevevbesseveseeveceves 14

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ......

en ey ee Tr 13, 14, 15, 16, 19, 21, 25, 26

Felmont Oil Corp. v. Pan American Pet. Corp., 334 S.W. 2d

449 (Tex. Civ. App. 1960) ........ccceeceeceecces 14

Ferens v. John Deere Co., 494 U.S.516(1990) ......... 26

Jones v. Cincinnati, Inc., Mass. App. Ct. 365 (1992) ..... 11

Kelly v. State Auto Ins. Ass’n, 288 F.2d 734 (6th Cir. 1961)

PEEP rE pre Terr ery Tr rer eT Tr rrr rey. 14

Contents

Page

Lehman Bros. v. Schein, 416 U.S. 386, 94 S. Ct. 1741

DL 61s6venehuschidedosedséstedncebie 16, 18, 20, 22

Lewis v. Lewis, 370 Mass.619(1976) ................ 24

Louisiana Power and Light Co. v. City of Thibodous, 360

IN Ace haa bd os ooo 0k 6es eh deed ueeee 18

Marbury v. Madison, | Cranch137 .................. 13

Michell v. UIP Engineered Products, Inc. and A.M. Kinney,

Inc., Suffolk, Civil Action No. 91-6675-E (March 1994)

BE Pe ee ee ee er ee 25

Milligan v. Tibbetts Engineering Corp., 391 Mass. 364

PE Ns Lad da bben hawk ale ered seen veshsisewss 10

Murray v. Goodrich Engineering Corp., Inc., 30 Mass.

Se PEED v6.06 cdbecaneivcheesusceeceses 11

Railroad Commission of Texas v. Pullman, 312 U.S. 498

ely s heGMU ets cee othe nnaea ehas hanes 15

Rehm vy. Interstate Motor Freight System, 133 F.2d 154 (6th

Se i hiceiees sae ew bhebi ee endeueedekeesen 16

Russell v. Salve Regina College, 938 F.2d 315 (1st Cir.

Dar adiccetaeeekaddbutaechusnenenesetenhs 20

Sinclair Oil & Gas Co. v. Masterson, 271 F.2d 310 (Sth Cir.

Docks as Se Veus ASE EE Whe ae ah aoe oan e wie 14

vii

Contents

Page

Snow v. Harnischfeger, 12 F.3d 1154(1993) ..........- 25

Snyder v. United States, 112 S. Ct. BSOCISFE) cccccececs 20

Solimene v. B. Gravel & Co., 399 Mass. 790 (1987) ..... 11

Travelers Ins. Co. v. Auto-Owners (Mut.) Ins. Co., 1 Ohio

App. 2d 65, 203 N.E. 2d 846 (1964) .........-++++- 14

Travelers Ins. Co. v. Ohio Farmers Indem. Co., 262 F.2d

BOD Ee, BIG occ ccc wccdccccccccccccdvesers 14

Truitt v. Gaines, 199 F. Supp. 143 (D. Del. 1961) ........ 14

United Services Life Insurance Co. v. Delaney, 328 F.2d

GED kc veccrecccdesbadecesdusstvasseceens 15

United States v. Buras, 475 F.2d 1370(1972) .......... 18

Virginia v. American Booksellers Assoc., Inc., 484 U.S.

381, 108 S. Ct. 636(1988) ........ cece cece eens 18,20

Wayne Township Board of Education v. Strand Century

Inc., 411 A.2d 1161(1980) ........... eee eee eens 13

Weed v. Bilbrey, 201 So. 2d 771 (Fla. App., 2d Dist. 1967)

wloutiedhe ae duceds oreieneehduavuadessanEseers 14

ern fer ere rire te tt Lf

viil

Contents

Page

Weymouth v. Colorado Interstate Gas Co., 367 F.2d 84 (Sth

EY tiAadceesdbdesk dn vaede eukeneeebabees 14

Yarrington v. Thornburg, 205 A.2d 1, 11 A.L.R. 3d 110

eae kee 4 aedb ender ee duceecces eure Oo 14

Statutes Cited:

ED 5 64 oH ec dndends oanead 0s beens ous 2

ds i vindseceascwasveesuweaeeaned an 4

EE can dss vee ks cwecedeeanedes 2, 13, 15, 16,19

I oes a a as eels eae passim

United States Constitution Cited:

PIE a vovavscecateceséuvectsuecunesces i,3

CPF TTT PET TOTO CCITT RT Pete Te 1,4, 17

POND ook bcncbdncsenetesentoncess i,4

EE boi 00 xnnegend dees ennenin scatter ean 18

Rules Cited:

Federal Rules of Civil Procedure:

IE te te eg a ae oe ee 13

Contents

EY: 55a s duking Gad poles ek Oooo eas

Massachusetts Supreme Judicial Court Rule 1:03 .......

Other Authorities Cited:

Brown, Fifth Circuit Certification—Federalism in Action,

FO PUNTER oc bcsct-ce ec dededvercces

E. Brown, Law of Oil and Gas Leases, 1958: 1966

Cumulative Supplement, p.293 ..................

Hill, The Law Making Power of the Federal Courts:

Constitutional Preemption, 67 Colum. L. Rev. 1024

(ENE sak coun sauNuaberiese sabes iar tee

Miller, An Empirical Study of Forum Choices in Removal

Cases Under Diversity and Federal Question

Jurisdiction, 41 The American U.L. Rev. 369 (1989) ..

Note: Unclear State Law in the Federal Courts: Appellate

Deference or Review, 48 Minn. L. Rev. 747 (1964) ....

Posner, The Federal Courts: Crisis and Reform 145 (1985)

Seron, C., Certifying Questions of State Law: Experience

of Federal Judges, 6 (Federal Judicial Center 1983) ..

Sloviter, A Federal Judge Views Diversity Jurisdiction

Through the Lens of Federalism, 78 Virginia L. Rev.

RRR ST EF ge at EN REY A aN

16,21

15,23

Contents

Page

Webster's Third New International Dictionary, 1138

PEED bbueuVeenssVeueuasaversvaccerecsaneges 5,10, 11

43A.L.1. Proceedings, 373 (1966) .......ccceccssoees 20

APPENDIX

Appendix A — Judgment of the United States Court of

Appeals for the First Circuit Entered December 29,

SOE 0000s0vescccaekbertecteseeseetdounedenks la

Appendix B — Memorandum and Order of the United

States Court of Appeals for the First Circuit Dated

ED EG SUE bend cdcancecencsesbecenveues 2a

Appendix C — Judgment of the United States District

Court, District of Massachusetts Dated April 23, 1993

19000 00d ened eennhheeune6enseen seb eenees ices 17a

Appendix D — Memorandum and Order of the United

States District Court, District of Massachusetts Dated

3 PPP TT eT TTT Per rrrer rere sy 18a

Appendix E — Affidavit of Bruce Manning in the United

States District Court, District of Massachusetts Dated

ROE 6600s 0ersecedscénasecéasteeunns 32a

Appendix F — Affidavit of Andrew R. Toth in the United

States District Court, District of Massachusetts Dated

PUR EEE ecccrbsevcssecesedveedésneeess 35a

Contents

Page

Appendix G — Affidavit of David MacCollum in the

United States District Court, District of Massachusetts

Dated December 4, 1992 withAttachment .......... 39a

Appendix H — Affidavit of E. Patrick McGuire in the

United States District Court, District of Massachusetts

Dated December 4, 1992 .........ccccccccccccees 44a

Appendix | — Transcript of Oral Argument on Defendant's

Motion for Summary Judgment Pages 25-35 ........ 47a

Appendix J — Memorandum and Order in Andella vs.

Westinghouse Elevator Co., etal. .......620+0e008: 56a

Appendix K — Memorandum and Order in Chesterton v.

ps eer rer rr TTT Tr rrr ry re 6la

Appendix L — Memorandum and Order in Mitchell v.

CEPR Pradecte, 800. Ee ccccccccusceccescveces 68a

No.

In The

Supreme Court of the United States

»-

October Term, 1993

DAVID SNOW, etal.,

Petitioners.

VS.

HARNISCHFEGER CORPORATION,

Respondent

On Petition for a Writ of Certierari to the United States Court of

Appeals for the First Circuit

PETITION FORA WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App. 2a) is reported at 12

F.3d 1154. The opinion of the district court (App. 18a) is reported

at 823 F. Supp. 22 (D. Mass. 1993).

STATEMENT OF JURISDICTION

The court of appeals entered its judgment on December 29,

1993 (App. 1a) and denied a petition for rehearing on January 26,

1994. The jurisdiction of this Court is invoked under 28 U.S.C.

-§1254(1).

STATUTES, RULES AND CONSTITUTIONAL

PROVISIONS INVOLVED

1. Section 1652 of 28 U.S. C. provides that the laws of the

several states, except where the Constitution or treaties of the

United States or Acts of Congress otherwise require or provide,

shall be regarded as rules of decision in civil actions in the courts of

the United States, in cases where they apply.

2. Rule 56(c)(e) of the Federal Rules of Civil Procedure

provides that: (c) The motion shall be served at least 10 days before

the time fixed for the hearing. The adverse party prior to the day of

hearing may serve opposing affidavits. The judgment sought shall

be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a

matter of law. A summary judgment, interlocutory in character,

may be rendered on the issue of liability alone although there is a

genuine issue as to the amount of damages; (e) Supporting and

opposing affidavits shall be made on personal knowledge, shall set

forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters

stated thereon. Sworn or certified copies of all papers or parts

thereof referred to in an affidavit shall be attached thereto or served

therewith. The court may permit affidavits to be supplemented or

opposed by depositions, answers to interrogatories, or further

affidavits. When a motion for summary judgment is made and

supported as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of the adverse party’s

pleading, but the adverse party’s response, by affidavits or as

otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial. If the adverse party

does not so respond, summary judgment, if appropriate, shall be

entered against the adverse party.

3. Rule 1:03 of the Massachusetts Supreme Judicial Court

Rules provides for certification of questions of local law to the

Supreme Judicial Court from the Supreme Court, the federal

appeals court, the federal district court, or from a court of another

state.

4. Section 2B of Massachusetts General Laws, chapter 260 is

the real estate statute of repose which bars actions in tort for

damages arising from any deficiency or neglect in the design,

planning, construction or general administration of an

improvement to real property which arises more than six years

after (1) the opening of the improvement to use or (2) substantial

completion of the improvement and the taking of possession.

The constitutional provisions involved in the case are the

following:

U.S. Const. amend. 5, which provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

U.S. Const. amend. 10, which provides:

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the states respectively,

or to the people.

U.S. Const. amend. 14, § 1, which provides in relevant part:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and the State

wherein they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

A. Preliminary Statement

The petitioners, husband, wife, and children, sued

Harnischfeger Corp, manufacturer of commercial cranes, in

December 1990 in the Superior Court of Essex County,

Massachusetts. They alleged that the husband’s first and second

finger, thumb, and most of the palm of his right hand were

traumatically amputated as the result of a design defect in the crane

trolley which rolled over his hand. Harnischfeger removed the case

to federal district court under 28 U.S.C. § 1446. In November

1992, the respondent, Harnischfeger, filed a motion for summary

judgment contending that the petitioners’ claims were barred by

M.G.L. 260, § 2B, the Massachusetts real estate statute of repose.

Summary judgment was granted, and the petitioners appealed to

the First Circuit Court of Appeals. They filed a motion at the same

time requesting the court to certify two questions to the

Commonwealth of Massachusetts Supreme Judicial Court

regarding the controlling state statute. The appeals court denied tne

motion and affirmed the judgment of the district court. The

petitioners petitioned for rehearing, but were denied on January 26,

1994.

B. Background and Statement of Facts

When David Snow (“Snow”) brought suit in the Superior

Court of Massachusetts seeking compensation from the

manufacturer of the crane trolley which caused his injury, he

rightfully expected that the merits of his case would be judged

under Massachusetts law. His legitimate expectations were

thwarted, however, when the federal district court, to which the

respondent had removed the case under diversity, entered its

judgment predicated on mere speculation about the meaning and

scope of the controlling state statute. Snow never had the benefit of

an authoritative state interpretation of the law as it applied to his

case. Instead, the district court, with the appeals court affirming,

entered summary judgment based on its prediction that the

Massachusetts Supreme Judicial Court would consider a large,

manually operated, industrial machine an improvement to real

property as defined in Webster's Third New International

Dictionary,' thus designating the manufacturer of the machine a

member of the class of actors involved in the construction industry

who could claim protected status under the Massachusetts real

estate statute of repose, M.G.L. c. 260, § 2B.

1. Webster's Third New International Dictionary |] 38 (1961 ) (hereinafter

“Webster’s”) defines “improvement” as a permanent addition to or betterment of

real property that enhances its capital value and that invoives the expenditure of

labor or money and is designed to make the property more useful or vaiuabie as

distinguished from ordinary repairs.

This case involves the construction of M.G.L. c. 260, § 2B

(“2B”) and the fact that the Supreme Judicial Court of

Massachusetts has never construed that statute as it relates to large,

industrial, manually operated machinery. Central to this issue is

the refusal of the appeals court to certify two questions regarding

the interpretation of 2B to the Massachusetts Supreme Judicial

Court and the injustice which flowed from that refusal,’

highlighting the tension which exists between diversity

jurisdiction and the core principles of federalism. An

understanding of the wrong done Snow by the court’s refusal is

aided by an explication of the facts of the case.

Snow’s product liability claims arose when three fingers and a

portion of his right hand were traumatically amputated on

December 29, 1987 by a trolley wheel of an overhead crane

manufactured by the respondent, Harnischfeger Corporation

(“Harnischfeger’). At the time of the incident, David Snow was

working as an electrician at RESCO, a trash to energy plant in

Saugus, Massachusetts.

This litigation began in December, 1990 when the petitioners

brought suit contending that the respondent was negligent when it

manufactured the trolley without wheel guards, without a proper

lockout system and without automatic audio or visual movement

alarms.

2. Snow proposed certifying the following questions:

(1) Whether the defendant, Harnischfeger, the

manufacturer of a manually operated overhead crane, is a

member of the class M.G.L. c. 260, § 2B was designed to

protect? (2) Whether the district court acted

appropriately in using Webster's Third International

Dictionary’s definition of ‘improvement’ in determining

whether the plaintiffs’ product liability claims were

barred by M.G.L. c. 260, § 2B?

On November 13, 1992, Harnischfeger filed its motion for

summary judgment contending that the petitioners’ claims were

barred by the Massachusetts real estate statute of repose, G.L. 260,

§ 2B since Harnischfeger had designed the crane specifically for

RESCO.

The overhead crane which caused David Snow’s injuries was

manufaciured by Harnischfeger in 1973-1975 at its plant in

Milwaukee, Wisconsin, shipped to Saugus, Massachusetts and

installed at RESCO by Martin DeMatteo Construction Company in

1975. The crane loads refuse into feed hoppers where the refuse is

burned to produce energy. Harnischfeger had been manufacturing

such cranes since 1906. At the time Harnischfeger manufactured

the overhead cranes for RESCO, it had manufactured over twenty-

four thousand such cranes. Harnischfeger had no involvement in

the design or construction of the RESCO trash incineration facility.

After oral arguments on Harnischfeger’s motion for summary

judgment, the district court granted summary judgment on April

20, 1993. In so ruling, the court opined that the crane was an

improvement to the real property owned by RESCO and that the

respondent was engaged in the protected activity of designing,

planning, constructing and improving real property.

The petitioners appealed the judgment of the district court

arguing that Harnischfeger was a materialman or supplier and not

protected by 2B, and also that there were material facts in dispute

regarding whether the crane was unique or simply customized

from standard, component parts to comply with certain

specifications. After hearing, the court of appeals affirmed the

district court’s judgment on December 29, 1993. Snow next

petitioned the appeals court for a rehearing, but his petition was

denied on January 26, 1994.

REASONS FOR GRANTING THE WRIT

Snow was done a great injustice by having his case summarily

dismissed without the benefit of an authoritative state construction

of the statute under which summary judgment was entered. That

injustice was compounded when the appeals court refused Snow's

request to certify two questions to the state’s highest court in order

to clarify the pertinent law, relying, instead, on its own

interpretation of who should be exempt from tort liability under

Massachusetts’ real estate statute of repose. The court abused its

discretion by changing the scope of tort liability immunity without

advancing any public policy argument to substantiate such a

radical modification. The district and appeals courts committed

error and abused their discretion in part because they were without

clear or adequate guidelines to constrain their discretion.

THE APPEALS COURT ERRED IN AFFIRMING THE

DISTRICT COURT’S DECISION WHICH FOUND A

LARGE, MANUALLY OPERATED CRANE TO BE AN

IMPROVEMENT TO REAL PROPERTY, THUS

BESTOWING EXEMPTION FROM TORT LIABILITY

UPON THE MANUFACTURER OF THE CRANE AND

FACILITATING THE ALLOWANCE OF SUMMARY

JUDGMENT PURSUANT TO M..G.L. c. 260, § 2B.

A. The Crane as an Improvement

Mass. General Laws, c. 260, § 2B (“2B”) states in pertinent

part:

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 3 years next after the

cause of action accrues; provided, however,

that in no event shall such actions be

commenced more than 6 years after the earlier

of the dates of: (1) the opening of the

improvement to use; or (2) substantial

completion of the improvements and the taking

of possession for occupancy by the owner.

(Emphasis supplied).

There is no reported Massachusetts case directly on point with

the instant case. All the Massachusetts cases interpreting 2B relate

to static products. Nonetheless, in construing the intent of the

Massachusetts Legislature in effecting 2B, the Supreme Judicial

Court found that the Legislature “meant to protect providers of

‘individual expertise’ in the business of designing, planning,

constructing, and administering improvements to real estate”; the

statute does not apply to those who can avail themselves of the

“quality control standards of the factory, 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 is to say, to parties who render particularized

services for the design and construction of particular

improvements to particular pieces of real property.” Dighton v.

Federal Pacific Electric Co., 399 Mass. 687, 695-96 (1987)

(citation and internal quotation marks omitted).’

The Supreme Judicial Court also stated in Dighton that the

words of the Massachusetts statue of repose are to be construed

3. See also, Klein v. Cotalano, 386 Mass. 701, 716 (1982) (observing that

architects, contractors and the like can pre-test construction designs only ina

limited fashion unlike manufacturers and suppliers who make their goods in the

controlled environment of a factory under strict quality control).

according to their “usual and natural meaning. * Only by contorting

the language of 2B — specifically the text emphasized, supra, can

one argue that a manually operated machine is an improvement as

that term was intended by the Legislature in promulgating 2B.

“Opening a crane to use” or “taking possession of a crane for

occupancy” are not syntactically natural or usual.

Similarly, the courts below incorrectly inferred from Milligan

v. Tibbetts Engineering Corp., 391 Mass. 364, 366 (1984) (citation

omitted) the appropriateness of using Webster’s definition of

“improvement.” Both courts indicated in their opinions that the

Webster’s definition was the established legal standard for

construing the meaning of “improvement.” (App. 9a-10a, 22a).

Milligan makes clear, however, that the use of the Webster’s

definition is not “out of place” only when an individual’s status as a

protected actor is not in doubt.® In Conley v. Scott Products, 401

Mass. 645, 647 (1988), the Supreme Judicial Court noted that the

Webster’s definition was “helpful.” Furthermore, Dighton v.

Federal Pacific Electric Co., at 697 proscribed the use of the

Webster’s definition as being too broad for the purpose of defining

an actor’s status when the actor’s status is not clear as that of an

architect or a contractor is. No Massachusetts court has declared

that this definition is the legal standard, only that it is helpful in

some limited situations. In the instant case, Harnischfeger’s status

as a protected actor under 2B is unclear; and it is inappropriate to

use the Webster’s definition in the circumstances of this case. The

courts may not construe a “sometimes may” as an “always shall”

with regard to the use of the Webster’s definition.

4. 1d. at 705.

5. Supra, note 1.

6. Milligan at 368.

There is no question that Harnischfeger “designed” the cranes

it manufactured. In that regard, Harnischfeger is a “designer,” but a

designer only to the extent that all manufactured goods are

designed. Were Webster’s definition to be applied to all

manufacturers who made goods installed in, or made an integral

part of, buildings (which buildings clearly are improvements to

real estate) or land, the class of actors who would fall under the

protection of 2B would increase dramatically, with a

correspondingly dramatic decrease in the number of those

suffering tortious injury who could seek relief. Actions in tort for

injury due to design defects in such things as an industrial oven

used in a paper coating process,’ a press,* a machine used in the

manufacture of automatic feeders,’ and an imprinting machine”

would all be barred after six years from the date they were

installed. In fect, suits in tort were brought against the

manufacturer of each of these machines, even though the machine

in question was an addition or betterment to real property which

enhanced its capital value, involved the expenditure of labor or

money, made the property more useful or valuable, and was not an

ordinary repair. The list of goods fulfilling the Webster’s definition

is potentially endless, and one is hard pressed to believe that either

the Legislature or the Supreme Judicial Court intended to structure

a law which would be, essentially, a products liability statute of

repose without making that intention quite specific and quite clear.

B. Summary Judgment

Of the various errors and misapprehensions of the district and

7. Murray v. Goodrich Engineering Corp., Inc., 30 Mass. App. Ct. 918

(1991).

8. Jones v.Cincinnati, Inc., Mass. App. Ct. 365 (1992).

9. Barbosa v. Hopper Feeds, Inc., 404 Mass. 610 (1989).

10. Solimene v. B. Gravel & Co., 399 Mass. 790 (1987).

appeals court, the most egregious was the courts’ disregard of the

standard for summary judgment as each put forth that standard in

its opinion and as it appears in Rule 56(c)(e) of the Federal Rules of

Civil Procedure. In assessing Harnischfeger’s motion for summary

judgment, the district court stated that all of the evidence put forth

by Snow was to be believed and that all justifiable inferences were

to be drawn in Snow’s favor. (App. 19a) . The appeals court noted

that it was constrained to view the record in the light most

favorable to Snow, as well as according to him all beneficial

inferences discernable from the evidence. (App. 6a). It is a well-

recognized principle that if there are doubts as to the propriety of

summary judgment, such doubts should be resolved against

granting the motion. Nonetheless, the district court gave credence

to Harnischfeger’s claim that the RESCO crane was unique and

designed especially for RESCO (App. 21a), despite the opinions of

two of Snow’s experts’ as put forth in affidavits that the crane was

not unique. (App. 40a, 46a). The appeals court, likewise, chose to

ignore Snow’s experts, declaring that the experts’ opinions, stating

that the crane was not unique because it was composed of

standardized component parts did not create a genuine issue of

material fact. (App. 9a). The appeals court failed to explain why or

how it determined that there was no factual issue in light of

conflicting expert opinion, instead continuing its memorandum

with a discussion of Harnischfeger’s advertising brochures in

support of the uniqueness of Harnischfeger’s cranes.

There exist other internal conflicts in the courts’ reasoning

with regard to the evidence submitted by the parties. One of

Harnischfeger’s experts listed sixteen components (of the

hundreds or thousands which made up the crane system) which

were alledgedly designed and fabricated for the RESCO crane and

which, the expert contended, made it unique. (App. 38a). At oral

argument in district court, however, Harnischfeger’s counsel,

responding to the judge’s questioning, disavowed that all of the

sixteen parts were specifically designed for the RESCO crane.

(App. 48a-49a). At the same hearing, Harnischfeger’s counsel

agreed that a question of fact existed relative to whether the factual

elements of the definition of “improvement” were satisfied, but

then assured the court that they were because the elements of

complexity and nonstandardization of the crane’s components

were undisputedly established. (App. 54a-55a). This assurance

rings hollow, however, in light of the confusion regarding the

custom design of the sixteen components. Additionally, case law

has established that a manufacturer who responds to specifications

provided by a customer does not automatically assume the identity

of a designer. Wayne Township Board of Education v. Strand

Century Inc., 411 A.2d 1161, 1164 (1980).

Had either lower court followed the mandate of Rule 56 or

federal case law, it would have given the benefit of any doubt to

Snow, thus precluding summary judgment under 2B. Indeed,

earliest precedent makes clear that “the very essence of civil liberty

certainly consists in the right of every individual to claim the

protection of the laws, whenever he receives an injury. One of the

first duties of government is to afford that protection.” (Black, J.

dissenting). Clay v. Sun Insurance Office, 363 U.S. 207, 225 n.21

(Sth Cir. 1960) quoting Marbury v. Madison, 1 Cranch 137, 163.

Il.

PURSUANT TO THE ERIE DOCTRINE AND 28 U.S.C.

§ 1652, SNOW WAS ENTITLED TO HAVE HIS CLAIM

DECIDED UNDER MASSACHUSETTS STATE LAW.

When suit is brought in state court and removed to federal

court under diversity, both Erie and 28 U.S.C. § 1652, the Rules of

Decision Act, mandate that the federal courts must use the

applicable state law in deciding the case.'' The party without the

11. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

choice of forum, in the instant case, Snow, is required to rely on the

federal judiciary’s ability to predict the governing state law when

the law is ambiguous or unclear; but when the law involved is

substantive, such a prediction violates the policies underlying Erie

and its progeny. Section 2B is such a substantive law, for it takes

rights from one (i.e., the right to sue for tortious injury) while

bestowing rights on another (i.e., the right to be immune from

liability in tort).

Theoretically, Snow could have expected the same outcome in

federal as in state court regardless of the accident of diversity. The

Constitution, as interpreted in Erie, requires this result. In reality,

not just the First Circuit, but all the federal Circuits, have had

problems in predicting state law accurately as evidenced by the not

insignificant number of federal cases which states have overruled

in subsequent decisions.” Clearly, the state laws controlling the

outcome of these cases were ambiguous, and recourse to the

various state supreme courts for a definitive explication of the laws

was warranted (in those states which had certification procedures)

particularly if the federal court decision was adverse to the

unwilling federal court party.

12. See, e.g., Felmont Oil Corp. v. PanAmerican Pet. Corp., 334 S.W. 2d

449 (Tex. Civ.App., 1960), error ref’dn. r.e., which expressly refuses to follow

Sinclair Oil & Gas Co. v. Masterson, 271 F.2d 310 (Sth Cir. 1959); see E. Brown,

Law of Oil & Gas Leases, 1958: 1966 Cumulative Supplement, p. 293;

Weymouth v. Colorado Interstate Gas Co., 367 F.2d 84, 102 n. 57 (Sth Cir. 1966);

see Yarrington v. Thornburg, 205 A.2d 1, 11 A.L.R. 3d 1110 (Del. 1964),

rejecting Truitt v. Gaines, 199 F. Supp. 143 (D. Del. 1961); Travelers Ins. Co. v.

Auto-Owners (Mut.) Ins. Co., 1 Ohio App. 2d 65, 203 N.E.2d 846 (1964),

rejecting American Fid. & Cas. Co. v. Indemnity Ins. Co. of North America, 308

F.2d 697 (6th Cir. 1962); Kelly v. State Auto Ins. Ass'n, 288 F.2d 734 (6th Cir..

1961);Travelers Ins. Co. v. Ohio Farmers Indem. Co., 262 F.2d 132 (6th Cir.

1958); Weed v. Bilbrey, 201 So.2d 771 (Fla.App. 2d Dist. 1967); rejecting

outright Emerson v. Holloway Concrete Prods. Co., 282 F.2d 271 (Sth Cir. 1960),

cert. denied, 364 U.S. 941, 81S. Ct. 459, 5 L. Ed. 2d 372 (1961), and expressly

adopting the dissent of Brown, J. in the Emerson case, 282 F.2d at 278.

Even though the law in each case was subsequently clarified,

the parties who received an erroneous decision in the federal

appeals court had no recourse. Despite the fact that the federal

appeals court decision in each case had no stare decisis effect due

to subsequent contrary state decisions, it nonetheless had res

judicata and collateral estoppel effect as to the particular parties to

the litigation. In essence, a final judgment from a federal appeals

court in a diversity case is a one way ticket.’’ This is of particular

consequence considering the high percentage of diversity cases in

federal courts.”

The instant case is an example of such a one way ticket. Even

if the Supreme Judicial Court of Massachusetts gets the

opportunity to speak to the issue of whether large, industrial,

manually operated machines are the type of improvement

contemplated by 2B, the Snows will be unable to benefit from any

decision contrary to that of the federal court.

The Erie doctrine, as well as 28 U.S.C. § 1652 declare that

[extant] state laws shall be the rules of decision where they apply.

The Pullman doctrine requires the federal courts to wait and give

state courts the opportunity to determine state law when a federal

constitutional claim has a basis in unsettled state law;'* and

13. United Services Life Insurance Co. v. Delaney, 328 F.2d 483, 484

(1964) (no matter how seasoned the judgment of the district court, if the meaning

of a statute is unclear and state case law gives little illumination, any judgment of

the federal court as to the meaning of the statute will be a forecast rather than a

determination).

14. In one 1993 study commissioned by the Federal Judicial Center,

64.6% of the cases with certified questions were based on diversity. Seron, C.,

Certifying Questions of State Law: Experience of Federal Judges, 6 (Federal

Judicial Center 1983).

15. Railroad Commission of Texas v. Pullman, 312 U.S. 498 (1941).

Lehman Bros. v. Schein, infra, encourages federal courts to certify

questions of unclear state law even if a federal constitutional claim

is not involved. United States courts are not, however, to limit,

modify, or repeal state doctrine of their own volition.'’* Creating a

sweeping change in a statute which alters its essential character

and modifies its legislative intent as the court did when it opened

the protection of 2B to manufacturers of manually operated

machines, puts the federal court in the position of making state law,

and this is so whether or not the court’s prediction of how the state

would construe the statute is accurate. For, fundamental to the Erie

doctrine is the recognition that the judiciary is a source of law;

courts as well as legislatures, make ‘’laws.”’'’ It would be against

every principle of federalism, as well as unconstitutional, if

Congress made temporary state laws, even if those laws could be

voided by subsequent and contrary state legislative action. Yet,

federal creation of state law occurs each time a federal court makes

a guess Or a supposition about the meaning or scope of an unclear

state law, with the result that diversity litigants, such as Snow, have

their claims adjudicated not by state law as mandated by 28 U.S.C.

§ 1652 and Erie, but by a law instituted by a federal court acting ina

quasi-legislative capacity.

Ill.

SNOW WAS DEPRIVED OF HIS DUE PROCESS AND

EQUAL PROTECTION RIGHTS BECAUSE ITS CLAIMS

WERE NOT ADJUDICATED PURSUANT TO A

DEFINITIVE INTERPRETATION OF 2B.

Had this case remained in the state superior court and Snow

disagreed with that court’s final judgment based on its

16. Rehm v. Interstate Motor Freight System, 133 F.2d 154 (6th Cir. 1943).

17. Note, Unclear State Law in the Federal Courts: Appellate Deference

or Review, 48 Minn. L. Rev. 747 (1964).

PAR ROI AM Heat erie

interpretation of 2B, he could have appealed the decision and order

to the Supreme Judicial Court for an authoritative determination of

the meaning of the statute in relation to the unique facts of his case.

But because Snow was unwillingly hauled into federal court, he

was denied the right that a state court litigant enjoys and was

subject to (possibly) a different statutory interpretation of the

controlling law — in essence, a new law created by the federal

court.

It is appropriate for state courts to function in a law-making

capacity. The function of federal courts however, has been

habitually regarded as narrower, being confined to the explication

of the texts.'* Nevertheless, federal courts in diversity cases do

make laws, but denominate what are often policy decisions as

“predictions of state law” rather than “state lawmaking.” This was

precisely the scenario in the instant case wherein the court

radically expanded the class of actors under the protection of 2B.

By virtue of the constitutional limitations on the power of the

federal government,’® the states (theoretically) exercise

substantially exclusive authority in adjusting the interests of

persons within their boundaries, except for those areas of law

which the federal government has superseded or preempted. Thus,

in diversity cases such as the one at bar, the incompatibility

between diversity jurisdiction and federalism principles could be

mitigated by the process of federal certification of state law

questions to a state’s supreme court.”

18. Hill, The Law Making Power of the Federal Courts: Constitutional

Preemption, 67 Colum. L. Rev. 1024 (1967).

19. United States Constitution amend. X.

20. Sloviter, A Federal Judge Views Diversity Jurisdiction through the

Lens of Federalism, 78 Virginia L. Rev. 1684 (Nov. 1992).

Certification of questions of unclear state law does not

constitute an abrogation of judicial duty under Article III of the

Constitution.?' On the contrary, it is a wise and productive

discharge of it. Louisiana Power and Light Co. v. City of

Thibodous, 360 U.S. 25, 29 (1959). Employing a certification

procedure does nothing more than provide the correct

determination of state law to enable the federal court to correctly

decide a case,” thus ensuring that litigants in federal court are

judged by the same standards as those in state court. If there are

conflicting and unreliable interpretations of a controlling state

statute,”’ such as Snow’s and Harnischfeger’s divergence as to the

meaning of 2B, it is essential that the federal court have the benefit

of the state supreme court’s authoritative answer to the particular

question of law. Virginia v. American Booksellers Assoc., Inc., 484

U.S. 381 (1988); 108 S. Ct. 636, 637.

IV.

CLARIFICATION BY THE MASSACHUSETTS

SUPREME JUDICIAL COURT OF THE MEANING OF 2B

IN RELATION TO LARGE, INDUSTRIAL, MANUALLY

OPERATED MACHINERY WILL ELIMINATE SNOW’S

CONSTITUTIONAL CLAIMS.

Snow’s constitutional claims of violation of his due process

21. Article III] requires the federal courts to hear and decide diversity

cases, no matter how obstruse the matter and even when there is no authoritative

state decision on the question at bar. United States v. Buras, 475 F.2d 1370,

1371(1972).

22. Lehman Bros. v. Schein, 416 U.S. 386, 94S. Ct. 1741, 1746 (1974).

23. A debate among parties over the meaning of a statute is a strong

indication of the ambiguities it contains. Bellotti v. Baird, 428 U.S. 132, 148

(1976).

Bh nS

and equal protection rights derive from the court’s refusal to certify

questions to the Supreme Judicial Court as to the definitive

interpretation of 2B relative to the unique facts of Snow’s case.

Where there were no Massachusetts cases on point to guide the

court’s decision, and where the court, therefore, was only able to

guess at what the Supreme Judicial Court might rule, Snow

received a different and inferior form of justice and, very possibly,

a different decision than a litigant whose case was tried in the state

court. Additionally, Snow’s access to the authoritative font for the

interpretation of the law under which his case was summarily

dismissed was blocked.

If the Constitution, as interpreted in Erie and codified in 28

U.S.C. § 1652 genuinely means that diversity cases are to be

adjudicated under state law, then the semantic chicanery of calling

a “guess” “state law” cannot stand; for if one person’s case is tried

under the authority of a guess as to the law’s meaning, while

another’s is adjudicated subject to the authoritative law, there

exists no equality of protection of the law as to the two cases and no

adequate due process.

THE FAILURE OF THE UNITED STATES SUPREME

COURT TO PROVIDE ADEQUATE GUIDANCE TO THE

DISTRICT AND APPEALS COURTS REGARDING THE

CERTIFICATION TO STATE SUPREME COURTS OF

QUESTIONS OF UNCLEAR STATE LAW PREJUDICED

SNOW’S INTERESTS, AND WITHOUT PROPER

GUIDANCE, COURTS WILL CONTINUE TO ERR BY

FAILING TO CERTIFY QUESTIONS OF STATE LAW, TO

THE PREJUDICE OF FUTURE LITIGANTS.

At present, there are no clear guidelines nor any established

formulae by which federal courts decide when they should utilize

certification. Judge Friendly noted during the American Law

Institute meeting in 1966, the incongruity of “hav[ing] a carefully

limited provision as to abstention and an absolutely open-end

permission as to certification.” There is likewise little guidance

as to the manner in which a federal judge should ascertain the state

law when the highest state court has not spoken to the precise

question in issue.”*

The Court last addressed the question of when to certify in

1956 in Bernhardt v. Polygraphic Co. of America, 350 U.S. 198%

(1956). Further requests for guidelines, and even suggested

guidelines themselves, have been put forth since that time. See,

e.g., Snyder v. United States, 1128. Ct.450(1991); Russell v. Salve

Regina College, 938 F.2d 315 (1st Cir. 1991); Cumberland and

Ohio Co. of Texas, Inc. v. First American National Bank, 936 F.2d

846 (6th Cir. 1991), cert denied, 112 S. Ct. 878 (1992) (proposed

appropriate factors underlying choice of certification). In Salve

Regina, the court opened the question of when to certify questions

of state law, but did not answer it.

Given the multiple requests for further guidance, it seems

clear that additional direction is required, particularly since the

Court has encouraged the use of certification” and noted that use of

the certification procedure “is more likely to produce the correct

determination of state law ....” Lehman, 391. The reciprocal

correlative of that statement must be that not using certification is

less likely to produce the correct determination of state law. This

24. 43A.L.1. Proceedings, 373 (1966).

25. Id.

26. See, e.g., Lehman Bros. v. Schein, 416 U.S. 386 (1984); Bellotti v.

Baird, 428 U.S. 132 (1976); Virginia v. American Booksellers Assoc., 484 U.S.

383 (1988).

has, in fact, been demonstrated to he a correct staternent.”’ It seems

axiomatic, therefore, that if there is any question, any doubt, any

uncertainty about the meaning or scope of a state statute, a federal

court should certify the question to the appropriate state supreme

court because all litigants have a right to he governed by the hest

rule of decision.” Anything less than that prejudices their interests

The appeals court's refusal to certify at Snow's request two

questions to the Supreme Judicial court denied Snow this right

Instead of getting a determination of the meaning of 2B as it related

to the unique facts of his case, Snow received an Erie “guess” and

hence, an inferior form of justice

The appeals court stated in its opinion that “[a|mbiguity in the

application of... 2B arises when it is unclear whether a party acted

as a materialman or supplier rather than an architect, engineer

contractor, surveyor or some other protected actor.” (11a) In the

instant case, one of the central questions at issue is the action taken

by Harnischfeger in the manufacture of the RESCO crane

Harnischfeger’s status without the context of an activities analysis

does not automatically qualify the corporation as protected. Thus

the court was faced with ambiguity in applying 2B and should have

certified the question to the Supreme Judicial Court.

The appeals court, quoting Supreme Judicial Court Rule | 03

§ 1, stated further that certification of determinating issues was

appropriate where it appeared to the certifying court that there was

no controlling precedent in the decisions of the Supreme Judiciai

Court (16a). Although, as the appeals court noted, the Supreme

Judicial Court has construed the scope of 2B in a number of cases.

all the cases the appeals court cited deal with static products. There

is no recorded Massachusetts case construing 2B which deais with

27. See note 12, supra.

28. Note, Unclear State Law in the Federai Courts: Appeilate Deference

or Review, 48 Minn. L. Rev. 747, 759 (1964).

a large, manually operated machine.” Nonetheless, the court

extrapolated from the inapposite cases it cited and found

Harnischfeger to be a protected actor. The court then summarily

dismissed Snow’s cause of action, thereby prejudicing his

interests.

Despite the benefits of certification in promoting cooperative

judicial federalism,” in enabling a correct decision, and in

decreasing the tension created by the demands of Erie in diversity

cases, the federal courts have hesitated to utilize the procedure,

indicating their fear of overburdening the state courts as the basis

for their reluctance. See, e.g., Dorman v. Scotti, 862 F.2d 432, 435

(D. Conn. 1988). Yet, the existence of certification procedures in

the majority of states would seem to indicate a willingness

perhaps, even, as eagerness on the part of the states to bear this

burden.*! Additionally, the number of cases with a legitimate need

to certify would likely not be that great.

Another objection has been the increased time involved with

29. There are, however, unreported cases at the trial court level, but they

are not uniform in their holdings, thus indicating further that 2B is an area of

unsettled Massachusetts state law, particularly as it relates to industrial/

commercial machinery. See, e.g., Andella v. Westinghouse Elevator Co.,

Middlesex 89-5431 (1990) (allowed summary judgment, finding that a store

escalator was an improvement under 2B) (56a); Chesterton v. Jordan Marsh Co.,

Norfolk 141724 (1984) (denied summary judgment finding that a store escalator

was not an improvement under 2B) (61a).

30. Lehman Bros. v. Schein at 419-20.

31. “Speculation by a federal court about the meaning of a state statute in

the absence of prior state court adjudication is particularly gratuitous when. . .

state courts stand willing to address questions of state law on certification from a

federal court.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 510 (1985)

(O’Connor, J., concurring).

certification. While it is true that cases in which questions have

been certified do take more time from filing to disposition, only a

relatively small proportion of that time is directly attributable to

the use of the certification procedure.** The delay caused by the

certification process must be set off against the time that would be

required for the federal court to research and reach its own answer

to the certified question. Furthermore, obtaining a state court

answer may result in some economies of time in that the delay

attending certification is compensated by the subsequent

expedition of other cases involving the same or related questions of

State law.

If overburdening state courts is not a problem, and time

considerations are not relevant, the lack of clear guidelines

remains as the primary impediment to the utilization of

certification.

The case at bar presents a timely opportunity to provide the

necessary guidance.

VI.

SNOW’S CLAIMS INTIMATELY INVOLVE

IMPORTANT PUBLIC POLICY CONSIDERATIONS IN

WHICH MASSACHUSETTS HAS A KEEN INTEREST.

The Massachusetts Supreme Judicial Court Chief Justice,

Paul J. Liacos, at a recent meeting of state and federal judges, told a

group of federal judges: “Don’t impose national solutions on local

problems”* (internal quotation marks omitted).

32. Seron, C., Certifying Questions of State Law: Experience of Federal

Judges, 16-17 (Federal Judicial Center 1983).

33. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the

Lens of Federalism, 78 Virginia L. Rev. 1675, 1892 (Nov. 1992).

States have a strong interest in authoritatively declaring their

own law in light of important underlying state policies. Brown,

Fifth Circuit Certification — Federalism in Action, 7 Cumb. L.

Rev. 45, 465 (1977). This interest is particularly keen when the law

at issue relates to the policy of immunity from liability for certain

tortfeasors. See generally, Lewis v. Lewis, 370 Mass. 619, 629

(1976). Massachusetts requires a strict and narrow construction of

exemption provisions.™ In the instant case, the First Circuit Court

of Appeals, in affirming the district court, substantially enlarged

the number of potential protected actors under 2B rather than

fitting their decision to the existing framework of Massachusetts

law. By including manufacturers within the ambit of those

protected from suit under 2B, the court has provided a negative

incentive insofar as safety improvements are concerned.

With the Snow case now being the only case interpreting 2B

relative to large, industrial, manually operated machinery, there is

a danger that this case will mislead lower state courts that may be

inclined to accept federal predictions as applicable precedent.

Indeed, this has already occurred.** The Massachusetts superior

34. Lewis, id. (“If there has been tortious injury, there should be recovery,

and only strong arguments of public policy should justify a judicially created

immunityfor tortfeasors . . . .”); Dept. of Environmental Quality Engineering v.

Town of Hingham, 15 Mass. App. Ct. 409, 411 (1983) (statutory language of

exemption provisions must be strictly construed); Commercial Wharf East

Condo, Assoc. v. Waterfront Parking Corp., 407 Mass. 123, 129 (1990) (the

Supreme Judicial Court will not presume that the Legislature intends a radical

change in the common law without a clear expression of such intent); See also

Welch v. Engineers, Inc., 495 A.2d 160, 166 (N.J. Super. A.D. 1985) (immunity

from liability for injury is not favored in law, and statutes granting tort liability

immunity should be strictly and narrowly construed); Byrd v. Blue Ridge

Cooperative, 356 U.S. 525, 535 (1958) (federal courts in diversity cases must

respect the definition of rights and obligations created by the state courts).

35. Judge Lauriat, Associate Justice of the Massachusetts Superior Court,

recently granted summary judgment in a case in which he relied almost

(Cont’d)

court judge who decided the case relied almost exclusively on the

appeals court decision from the case at bar. Had there been a

Supreme Judicial Court case on point, he almost certainly would

have looked to that for instruction. On the other hand, some

evidence suggests that federal courts have shown a preference for

citing federal decisions on state law instead of state decisions at

rates approaching pre-Erie levels.* This could have untoward

effects. Rather than Justice Brandeis’ idea of states acting as

individual laboratories, there will be a gradual homogenation

resulting in a pre-Erie federal common law. With the executive and

congressional branches of the federal government exercising ever

more power and control, the court is the last bulwark against

threats to federalism and the founders’ vision of a union of

sovereign states.

There is evidence that a substantial number of attorneys

remove cases to federal court because of the greater possibility of

summary judgment.*’ In an empirical study contrasting federal and

State court motion practice, in four of five districts examined,

federal courts were more likely than state courts to terminate cases

by motion rulings.*

(Cont'd)

exclusively on Snow v. Harnischfeger, 12 F.3d 1154 (1993). The case was

Michell v. UIP Engineered Products, Inc. and A.M. Kinney, Inc., Suffolk, Civil

Action No. 91-6675-E (March 1994) (68a).

36. See Richard A. Posner, The Federal Courts: Crisis and Reform 145-46

and tb]. 5.2 (1985).

37. Miller, An Empirical Study of Forum Choices in Removal Cases Under

Diversity and Federal Question Jurisdiction, 41 The American U.L. Rev. 369,

406 (1989).

38. Id. at 439.

Attorneys preferred federal court not only for the availability

of judgment, but also based on expectations of lesser hostility there

toward business litigants (80% to 85% of defendants are business

litigants).*” Such forum shopping is ironic considering that the

twin aims of Erie were to prevent forum shopping and promote

uniformity. Judge Scalia, in his dissent in Ferens v. John Deere

Co., 494 U.S. 516, 535-36 (1990) noted that the wholesale

castigation of forum shopping is waning. If this is so, then litigants

who remove cases to federal court for the purpose of gaining an

advantage they would not have in state court are enabled to

manipulate the state’s law via the federal courts, thus creating bias

against the residents in favor of aliens.

Last, the appeals court implied that the Snows should have

brought their motion to certify questions to the Supreme Judicial

Court sooner than they did, e.g., at the district court level. (15a).

Although the Supreme Judicial Court accepts certified questions

from a federal district court, some states’ certification procedures

prohibit it, accepting questions only from the appeals court or the

Supreme Court. This appears to be a procedural issue at first glance

which should be resolved in the Federal Rules of Civil Procedure.

Yet, the states which allow certification have established their

procedures to conform to their state constitutions. Here then, can

be seen most clearly the clash between federalism principles and

diversity jurisdiction, for if the identity of the originating federal

court of a question of state law is a procedural matter, the federal

procedural rules should govern and bring about uniformity on this

issue, otherwise, the various states would be dictating to the

federal government in an area that it is supposed to control under

Erie. Conversely, if the federal government imposes a procedural

rule regarding from which courts the states must accept certified

questions, it is abusing state sovereignty under the Tenth

Amendment. This conundrum can only be resolved by the court.

39. Id. at 424.

Until such time as the court speaks, forum shopping will continue

with its sequela of bias, and there will continue to be lack of

uniformity amongst the Circuits with regard to the use of

certification.

CONCLUSION

For all the foregoing reasons, it is respectfully submitted that

this petition for certiorari be granted, vacating the summary

judgment and certifying the question of the meaning of M.G.L. c.

260, § 2B to the Massachusetts Supreme Judicial Court, or in the

alternative, to remand the case to the First Circuit Court of Appeals

with instructions to certify the question of the meaning of M.G.L.

c. 260, § 2B to the Massachusetts Supreme Judicial Court.

Respectfully submitted,

WALTER A. COSTELLO, JR.

Counsel of Record

COSTELLO, BARRETT AND

GONTHIER, P.C.

Attorneys for Petitioners

314 Essex Street

Salem, Massachusetts 01970

(508) 745-8670

5 cnt :

APPENDIX A — JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

ENTERED DECEMBER 29, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 93-1489.

DAVID SNOW, ETAL..,

Plaintiffs, Appellants,

HARNISCHFEGER CORPORATION,

Defendant, Appellee .

JUDGMENT

Entered; December 29, 1993

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, adjudged

and decreed as follows: The judgment of the district court is

affirmed.

By the Court:

s/ illegible

Clerk.

[ cc: Messrs . Costello and Rogers ]

APPENDIX B — MEMORANDUM AND ORDER OF THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT DATED DECEMBER 239, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 93-1489

DAVID SNOW, ETAL.,

Plaintiffs, Appellants,

HARNISCHFEGER CORPORATION,

Defendant, ion

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{[Hon. Douglas P. Woodlock, U.S. District Judge}

Before

Torruella and Stahl, Circuit Judges,

and DiClerico,* District Judge.

Walter A. Costello, Jr. with whom Julie M. Conway and

Costello, Barrett and Gonthier, P.C. were on brief for appellants.

* Ofthe District of New Hampshire, sitting by designation.

Appendix B

David M. Rogers with whom Richard P. Campbell and

Campbell & Associates, P.C. were on brief for appellee.

December 29, 1993

DiClerico, District Judge. Plaintiffs David Snow, Linda

Snow, Jason Snow and Kevin Snow brought an action against

defendant Harnischfeger Corporation (“Harnischfeger’”’) alleging

defective design and negligence after the trolley wheel of an

Harnischfeger crane injured David Snow. Harnischfeger moved

for summary judgment, claiming the Massachusetts real estate

statute of repose barred the action. The district court agreed and

granted summary judgment. We affirm.

BACKGROUND

In March 1973, Rust Engineering Company (“Rust”), an

engineering and construction firm acting as agent for Refuse

Energy Systems Company (“RESCO”), engaged Harnischfeger to

assist in the design and manufacture of two thirteen-ton overhead

cranes for use at RESCO’s Saugus, Massachusetts trash-to-energy

plant.' The cranes are used to move trash into trash feed hoppers

where the trash is burned and steam is generated and converted into

electricity. Rust incorporated the cranes into the plant’s buildings

as part of the original construction. Harnischfeger was not

1. Harnischfeger has designed and manufactured overhead cranes since 1906

and has built more than 24,000 overhead trolley cranes. Harnischfeger customizes

each overhead trolley crane it manufactures. Overhead cranes such as those built by

Harnischfeger are generally considered heavy-duty machinery for specific

production purposes and used by many industries to lift and move heavy objects.

Appendix B

involved in the design or construction of the RESCO facility, nor

did Harnischfeger install the cranes.

On December 29, 1987, the trolley wheel of one of the

overhead cranes severed David Snow’s third, fourth and fifth

finger and a portion of his right hand. At the time, Snow was

working at the Saugus facility. The Snow family brought an action

in Essex Superior Court, Commonwealth of Massachusetts,

alleging the crane was unsafe due to Harnischfeger’s:failure to

equip the trolley with wheel guards and rail sweeps, automatic

audio or visual movement alarms, a proper lock-out system or kill

switch, and Harnischfeger’s failure to warn of inherent risks.”

Harnischfeger removed the action to the district court pursuant to

28 U.S.C. § 1446, and moved for summary judgment under the

Massachusetts real estate statute of repose (“statute’’).

The statute, Mass. Gen. Laws Ann. ch. 260, § 2B (West 1992)

(“M.G.L. c. 260, § 2B”), provides:

Action [sic] 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 earlier of the dates of: (1) the

opening of the improvement to use; or (2)

2. Intheir amended complaint, the Snows charge Harnischfeger with defective

design, negligence, breach of express warranty and breach of the implied warranty of

merchantability.

bins: inaaitibies Uaaatiensin obit Rendda Wedd a Uh wedi T hone

Appendix B

substanatial completion of the improvement

and the taking of possession for occupancy by

the owner.’

Id.* The district court found Harnischfeger was included in the

class of actors protected under the statute and granted the summary

judgment motion.°

On appeal the Snows argue (1) the district court improperly

granted summary judgment where genuine issues of material fact

remained; (2) the district court impermissibly extended repose to

the manufacturer of a machine thereby changing Massachusetts’

product liability law; (3) the district court improperly found

Harnischfeger was a protected actor within the meaning of M.G.L.

c. 260, § 2B; and (4) questions of local law are central to the

disposition of the appeal and should be certified to the

Massachusetts Supreme Judicial Court (“SJC”).

3. Massachusetts courts have construed the statute to apply to implied breach

of warranty claims where the underlying cause of action is the same as the tort claim.

Klein v. Catalano, 437 N.E.24 514,526 & n.19 (Mass. 1982); see also Anthony’s Pier

Four, Inc. v. Crandall Dry Dock Eng’rs, Inc., 489 N.E.2d 172, 175 (Mass. 1986).

4. M.G.L.c. 260, § 2B was last revised in 1984. Jd.

5. The district court barred the Snows’ action noting the RESCO plant became

operational in 1975 and the Snows did not institute their action until 1990. In 1986,

Harnischfeger designed two replacement trolleys. The Snows do not argue that we

should measure the application of the statute from the date Harnischfeger designed

the replacement trolleys.

Appendix B

DISCUSSION

Standard of Review

“We review a grant of summary judgment de novo, using the

same criteria incumbent upon the district court.” Gaskell v.

Harvard Coop. Soc’y, 3 F.3d 495, 497 (ist Cir. 1993) (citing

Vanhaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3 (Ist Cir.

1993); High Voltage Eng’g Corp. v. Federal Ins. Co., 981 F.2d 596,

598 (Ist Cir. 1992); Pedraza v. Shell Oil Co., 942 F.2d 48, 50 (ist

Cir. 1991), cert. denied, __ U.S. ___, 112 S. Ct. 993 (1992). The role

of summary judgment is “to pierce the boilerplate of the pleadings

and assay the parties’ proof in order to determine whether trial is

actually required.” Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d

791, 794 (ist Cir. 1992). It is appropriate only if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The burden is on

the moving party to establish the lack of a genuine, material factual

issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (lst Cir.

1986), and the court must view the record in the light most

favorable to the nonmovant, according the nonmovant all

beneficial inferences discernable from the evidence. Mesnick v.

General Elec. Co., 950 F.2d 816, 822 (Ist Cir 1991) (quoting

Griggs-Ryan v. Smith, 904 F.2d 112, 115 (Ist Cir. 1990)), cert.

denied, __ U.S. __, 112 S. Ct. 2965 (1992); Caputo v. Boston

Edison Co., 924 F.2d 11, 13 (ist Cir. 1991). Once the defendant has

made a properly supported motion for summary judgment,

however, the plaintiffs “may not rest upon mere allegation or

denials of [their] pleading, but must set forth specific facts

;

Appendix B

showing there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986) (citing Fed. R. Civ. P. 56(e)).

Issues of Fact

According to the Snows, four genuine issues of material fact

remain in dispute, making summary judgment inappropriate. We

have reviewed their contentions and find them to be without merit.

The Snows first argue there is a genuine issue of fact as to

whether Harnischfeger is in the construction business.° The Snows

do not dispute Harnischfeger designed and manufactured the

crane. Instead, the Snows assert that these activities are not

sufficient for a court to find that Harnischfeger is involved in the

construction industry and that such involvement is necessary to

bring Harnischfeger within M.G.L. c. 260, § 2B. Harnischfeger

contends M.G.L. c. 260, § 2B provides protection “ ‘to architects,

engineers, contractors and others involved in the design, planning,

construction or general administration of improvements to real

property’ ” and suggests it deserves repose as an “ ‘engineer’ or

‘other’ involved in the ‘design,’ ‘planning’ and ‘construction’ of

6. The Snows assert:

[t]he defendant claimed that because it manufactured an

overhead crane that became affixed to real property, it

was involved in the construction business. The plaintiffs

contend that the defendant’s design and manufacture of

an overhead crane which is housed in a structure on real

property, does not mean the defendant was involved in

the type of construction contemplated by M.G.L. c. 260

§ 2B.

Brief of the Plaintiffs-Appellants at 5-6.

Appendix B

the overhead crane.” Brief of Defendant-Appellee at 10-11

(alteration in original) (quoting Klein, 437 N.E.2d at 523).

Whether a defendant’s activities fall within the statute is a

question of law. See, e.g., McDonough v. Marr Scaffolding Co.,

591 N.E.2d 1079, 1081 (Mass. 1992) (court appropriately granted

summary judgment after concluding defendant’s actions were

construction activity contemplated by M.G.L. c. 260, § 2B).

Moreover, as Harnischfeger notes, the statute does not limit its

protection solely to those involved in the actual construction of

improvements to real property. Harnischfeger may be a protected

actor even without being involved in the construction business. As

the district court aptly stated, the Snows’ contention is “merely [an

argument] about how to apply law to the established facts.” Snow v.

Harnischfeger, 823 F. Supp. 22, 24 (D. Mass. 1993). To the extent

there is a dispute, it is immaterial to the disposition of the action.

The Snows’ next argue there is a genuine issue of fact as to

whether the overhead crane is a unique product. They argue the

crane, like many standard cranes, was merely customized to fit

inside a building, shed or structure. Harnischfeger maintains that

the product is unique and custom designed for RESCO, In support

Harnischfeger offers affidavits showing the following:

Harnischfeger designed, manufactured and constructed the cranes’

lifting capacity as well as the dimensions, of the major components

for specific plant and job functions; Rust supplied specifications

that were the basis of the designs including specified overhead and

wall clearances; and Harnischfeger custom designed sixteen

component parts and manufactured and assembled virtually all the

components. The Snows counter that they have presented evidence

showing the crane is a standard design and the trolley was

previously designed for sale in Florida.

}

Appendix B

The Snows’ evidence, which consists of Harnischfeger’s

brochures and literature along with expert affidavits and

deposition testimony, does not create any genuine issue of fact for

trial. The brochures emphasize that customers should avoid

“standard” cranes and should have Harnischfeger’s experts design

a crane that will satisfy their particular needs. At best, the literature

suggests Harnischfeger has standardized the materials used to

create the crane and standardized certain components to be mixed

and matched into a final product. In addition, the opinions of

Snows’ experts that the crane, as a final product, is a basic design

similar to cranes used in other industries do not contradict

Harnischfeger’s evidence. A crane can be designed for a particular

location and specialized function and still retain the essential

characteristics common to industrial cranes. Moreover, the ability

of the crane to be adopted for use by another industry is immaterial

to Harnischfeger’s status as a protected actor because the relevant

inquiry involves the motivation behind and the activity of

producing the product, not the product itself. See Dighton v.

Federal Pac. Elec. Co., 506 N.E.2d 509, 516 (Mass. 1987).

Furthermore, the deposition testimony of James Fravert, a

Harnischfeger employee, does not establish that the design of the

RESCO trolley was the same as one previously used by

Harnischfeger for sale to Brevard County, Florida. Fravert does not

testify that the design was duplicated, only that a design drawing

was duplicated and the duplicated drawing was modified to create

the drawing for the RESCO crane.

Lastly, the Snows raise the issue of the status of the crane,

arguing first that there is a genuine issue of fact as to whether the

crane js an improvement to real property. Once again, however, the

Snows do not dispute any relevant facts but rather the application

of law to these facts. The parties agree as to the essential

characteristics of the crane. There is an established legal standard

10a

Appendix B

defining improvements for purposes of M.G.L. c. 260, § 2B as well

as case law establishing when the definition should be applied. See

Milligan v. Tibbetts Eng’g Corp., 461 N.E.2d 808, 811 (Mass.

1984) (adopting definition found in Webster’s Third International

Dictionary); see also Dighton, 506 N.E.2d at 516 (explaining when

definition is useful). The Snows suggest no disputed facts that

would in any way preclude us from applying the legal standard.

The Snows also argue there is a genuine issue of fact as to

whether the crane is a permanent fixture. The SJC has rejected

adoption of a fixture analysis to determine applicability of the

statute of repose, noting the statute “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.” Dighton, 506 F.2d at 515.

The fact that a product is affixed, permanently or otherwise,

neither makes the product an improvement nor turns the producer

into a protected actor. Jd. Thus, the crane’s status as a permanent

fixture is immaterial to our inquiry.

Harnischfeger as a Protected Actor

The Snows further challenge the summary judgment order by

maintaining the district court acted impermissibly and without

precedent in applying the statute to Harnischfeger, who they define

as “manufacturers of a machine.” The Snows argue Harnischfeger,

as a manufacturer, is outside the class of actors M.G.L. c. 260, § 2B

is designed to protect. Harnischfeger admits to having

manufactured the crane but argues a manufacturer who engages in

protected activities is entitled to repose.

The purpose of the statute is “to protect providers of

lla

Appendix B

‘individual expertise’ ” who “render particularized services for the

design and construction of particular improvements to particular

piece; of real property.” Jd. The statute does not name a class of

protected actors, but instead extends protection to “those who

commit ‘any deficiency or neglect in the design, placing,

construction, or general administration of an improvement to real

property.’ ” Id. at 514. Certain actors obviously fall within the

statute. See id. at 516. These actors ilclude architects, engineers

and contractors. Klein, 437 N.E.2d at 523. The statute shields these

actors from any liability after six years as long as they were

involved in an enumerated activity with respect to an improvement

to real property. Other actors, such as materialmen and “mere”

suppliers, are outside the scope of the statute and not entitled to its

protection. Dighton, 506 N.E.2d at 514 n.10; McDonough, 591

N.E.2d at 1082.

Ambiguity in the application of M.G.L. c. 260, § 2B arises

when it is unclear whether a party acted as a materialman or

supplier rather than an architect, engineer, contractor, surveyor or

some other protected actor. See Dighton, 506 N.E.2d at 514. A

party is not a protected actor when the party does not perform

protected acts. See id. at 515. Conversely, an actor such as a

manufacturer or supplier may be protected if that actor becomes

more than a “mere” supplier by engaging in protected activities.

McDonough, 591 N.E.2d at 1082 (manufacturer who designed

bleacher units specifically for the rink in which they were installed

by another is more than mere supplier and entitled to benefit of

statute). Thus, application of the statute is necessarily dependent

on the nature of the party’s activities.’ See Dighton, 506 N.E.2d at

516.

7. The Snows argue that Dighton imposes a requirement upon the court to

engage in a two-step analysis to determine whether Harnischfeger is protected under

M.G.L.c. 260, § 2B. According to the Snows, Dighton requires the court to consider

(Cont'd)

12a

Appendix B

In Dighton, the defendant did not claim to have provided

particularized services with respect to the improvement — the

building — but rather claimed the benefit of the statute as a

designer, manufacturer and supplier of a component that fell

within Webster’s definition of improvement.* /d. at 515, 516. The

SJC did not reject the contention that a producer of a component

may be entitled to protection. See id. at 516; see also McDonough,

591 N.E.2d at 1084. Instead, the SJC rejected a formalistic inquiry

and established the producer’s motivations and activities as the

relevant focus of inquiry, not the nature of the product or the ability

to define the product as an improvement or a fixture. Dighton, 506

N.E.2d at 516.

(Cont‘d)

whether the statute names the party as a protected actor, i.e., an architect or engineer.

If the answer is yes, the court may determine whether the defendant engaged in

protected acts.

Dighton imposes no such test. The Dighton court merely noted that the trial

judge framed the question in this bipartite form. 506 N.E.2d at 514. The court rejected

the bipartite formulation:

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 persons allegedly responsible for acts, i.e.,

those who commit “any deficiency or neglect in the

design, planning, construction, or general administration

of an improvement to real property.”

Id. Thus, the court can and must engage in ari activities analysis when the defendant's

status as a protected actor is unclear. See id.

8. This definition has been adopted by the SJC where the defendant's status as

a protected actor is not in doubt. Jd. at 516.

13a

Appendix B

In considering whether an actor not clearly within the statute

is entitled to repose, the court engages in a fact-based activities

analysis. See id. The court must consider the motivation of the

actor in producing the improvement.’ /d. If the actor designed the

improvement for public sale or for general use, then the actor is not

protected because the actor is engaged in the activity of creating a

fungible product. See id. If, however, the improvement is produced

for a particular project and to the specifications of an architect or an

engineer, M.G.L. c. 260, § 2B may protect the actor as someone

engaged in the activity of designing a particularized improvement.

Id.

9. The SJC provides the following illustration:

[I}f a piece of metal sculpture were welded to an

exposed girder in a building, it certainly could be

characterized as a “permanent addition to or betterment

of” the property, one “enhanc[ing] it capital value,” one

“involv[ing] the expenditure of labor or money,” one

“designed to make the property more . . . valuable,” and

one clearly distinguish[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 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.

Dighton, 506 N.E.2d at 516 (alteration in original).

l4a

Appendix B

Like the defendant in Dighton, Harnischfeger does not claim

to have rendered particularized services with respect to the design

or construction of the RESCO facility. Instead, Harnischfeger

claims to be brought within the protection of the statute by

designing RESCO’s cranes. Pursuant to affidavits submitted, when

designing the crane that caused Mr. Snow’s injuries,

Harnischfeger’s motivation in producing the crane was to create, at

the request of the construction engineer, an essential component of

the plant building, made to the construction engineer’s

specifications, for sale only to RESCO and for incorporation only

into the RESCO plant. RESCO intended the cranes to be a

permanent and integral part of the overall plant, making the

property useful. Harnischfeger was not motivated to create a

fungible crane available to a variety of buyers and appropriate for

incorporation into a number of facilities. Harnischfeger’s actions

conform to those outlined by the Dighton Court and are protected

activities.'°

As the plaintiffs note, “[w]hen faced with the question of

whether or not the defendant is entitled to repose under M.G.L. c.

260 § 2B, the first question to be answered is ‘Is the defendant a

protected actor under M.G.L. c. 260 § 2B?’” Brief of the

Plaintiffs-Appellants at 11. Having answered affirmatively, we

now state our agreement with the trial court that the crane is an

improvement to real property within the meaning of the statute. See

Snow, 823 F. Supp. at 24-25. For purposes of M.G.L. c. 260, § 2B,

an improvement is

10. As the Snows’ experts note, a subsequent purchaser could remove and

modify the RESCO cranes for use in another industry, although this contingency was

neither Rust’s nor Harnischfeger’s intention. Furthermore, we do not look at possible

future uses and are therefore unconcerned that the crane could someday be sold to

another party, or could be incorporated into another plant.

a ee

15a

Appendix B

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.

Milligan, 461 N.E.2d at 811 (quoting Raffel v. Perley, 437 N.E.2d

1082, 1085 (Mass. App. 1982)). RESCO intended the crane to be a

betterment of real property enhancing its capital value and making

the property more useful and valuable. Therefore, Harnischfeger is

entitled to the protection afforded by M.G.L. c. 260, § 2B.

Certification

Following the district court order and subsequent appeal and

shortly before oral arguments, the Snows brought a motion asking

for the first time that the following two questions be certified to the

SJC:

(1) Whether the defendant, Harnischfeger, the

manufacturer of a manually operated overhead

crane, is a member of the class M.G.L. c. 260,

§ 2B was designed to protect?

(2) Whether the district court acted

appropriately in using Webster’s Third

International Dictionary’s definition of

‘improvement’ in determining whether the

plaintiffs’ product liability claims were barred

by M.G.L. c. 260, § 2B?

The Snows had argued to the district court that Dighton was

16a

Appendix B

dispositive of the issues in their case but now claim “(t]he

foregoing questions of local law are central to the disposition of

this appeal. . . . [T]he local law on this question has not been clearly

determined.”" PlaintiffsAppellants’ Memorandum in Support of

their Motion to Certify Questions of Local Law to the Supreme

Judicial Court of Massachusetts at 2.

Certification of determinative issues is appropriate where “‘it

appears to the certifying court there is no controlling precedent in

the decisions of the Supreme Judicial Court.” Supreme Judicial

Court Rule 1:03, § 1 (1986). The SJC construed the scope of

M.G.L. c. 260, § 2B ina number of cases. See, e.g., McDonough,

591 N.E.2d at 1084 (repose extends to designer of bleacher units

specifically designed for rink); Parent v. Stone & Webster, 556

N.E.2d 1009, (Mass. 1990) (repose extends to contruction

engineer who installs distribution panel); Dighton, 506 N.E.2d at

516 (repose does not extend to manufacturer of mass marketed

circuit breaker afftxed to real—property). The Snows themselves

list in their motion for certification no less than ten cases where

Massachusetts courts have determined whether a defendant is a

protected actor under M.G.L. c. 260, § 2B. Massachusetts courts

have also extensively addressed when Webster’s definition of

improvement is to be utilized. See Dighton, 506 N.E.2d at 516;

Milligan, 461 N.E.2d at 811; Raffel, 437 N.E.2d at 1085. Thus, we

are satisfied that sufficient guidance is available and certification

is inappropriate under the circumstances of this case.

Affirmed.

11. The Snows also acknowledged the dispositive nature of the case law at a

hearing before the district court.

ae madi wl

17a

APPENDIX C — JUDGMENT OF THE UNITED STATES

DISTRICT COURT, DISTRICT OF MASSACHUSETTS

DATED APRIL 23, 1993

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO.

90-13096-WD

DAVID SNOW, LINDA SNOW, JASON SNOW and KEVIN

SNOW,

Plaintiffs,

Vv.

HARNISCHFEGER CORPORATION,

Defendant.

JUDGMENT

WOODLOCK, District Judge

In accordance with this Court’s allowance of the Defendant’s

Motion for Summary Judgment on April 20, 1993, it is hereby

ORDERED

Judgment for the defendant against the plaintiffs.

BY THE COURT,

s/ Barlow I. Beatty

Deputy Clerk

DATED: April 23, 1993

18a

APPENDIX D — MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT, DISTRICT OF

MASSACHUSETTS DATED APRIL 20, 1993

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVILACTION NO.

90-13096-WD

DAVID SNOW, LINDA SNOW, JASON SNOW and KEVIN

SNOW,

Plaintiffs,

HARNISCHFEGER CORPORATION,

Defendant.

MEMORANDUM AND ORDER

April 20, 1993

This litigation began in December, 1990, when David Snow

(“Snow”), Linda Snow, Jason Snow, and Kevin Snow brought suit

in Essex Superior Court, from which defendant Harnischfeger

removed the case to this court under 28 U.S.C. § 1446. Snow, an

electrician, alleges he was injured by a Harnischfeger Corp. crane

at a Refuse Energy Systems Company (“RESCO”) trash-toenergy

plant in Saugus, Massachusetts. Harnischfeger seeks summary

judgment against Snow, arguing that a Massachusetts statute of

repose, M.G.L. c. 260, § 2B, applies to bar this action against a

person who made an improvement to real property. I agree and will

consequently grant the defendant’s motion.

eee ees ee

19a

Appendix D

In assessing Harnischfeger’s motion for summary judgment,

all of “[t]he evidence of the non-movant is tc be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v.

Liberty Lobby Inc., 477 U.S. 242, 255 (1986). Given that vantage,

the facts in the light most favorable to plaintiffs are as follows:

On December 29, 1987, Snow, an employee of RESCO,

worked from a crane’s support trolley to repair an overhead

lighting problem at the company’s Saugus plant. After finishing a

portion of his work, Snow and a co-worker came down off the

trolley and onto an adjoining catwalk (which served as the service

platform to the crane)’ Both men thought they saw smoke coming

out of a trash hopper. Better to investigate, “Snow leaned over the

[catwalk] railing and placed his hand on the [crane’s] rail to steady

himself.”* Meanwhile his co-worker mistakenly gave the “all

clear” sign to the crane operator. When the operator moved the

crane, its trolley came down the rail over Snow’s right hand,

severing three fingers and a portion of his palm.

Snow alleges that Harnischfeger’s design of the crane and its

trolley was negligent: the trolley wheels should have been

equipped with wheel guards; the trolley should have been

equipped with an audible or visual warning system; the trolley

should have been provided with a “proper lockout system” (which

would have required both Snow and his co-worker to unlock the

trolley before it would run).

1. Harnischfeger’s Response to Snow’s Request for Admissions, Response

10.

2. Plaintiffs Pretrial Memorandum at 4.

20a

Appendix D

Harnischfeger argues that even if Snow’s allegations of

negligence were correct, his claims would be barred by the

applicable Massachusetts statute of repose. The RESCO plant and

its two overhead cranes were constructed in 1973-75, and the plant

opened for business in 1975. The cranes, Harnischfeger alleges,

were improvements to real property, bringing their manufacturer

within the protection of c. 260, § 2B, which provides:

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

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.

Because the plant and its cranes were opened to use in 1975, and

Snow brought his action in 1990, Harnischfeger asserts Snow’s

cause is barred by Massachusetts law.

In opposition, Snow contends that Harnischfeger is not a

company charged with the “design, planning, construction or

general administration” of real property improvements; and that

the crane RESCO purchased was not an “improvement” to

RESCO’s real property.’ By answering the second question first,

3. Snow also argues that the parties dispute material issues of fact; but these

material issues turn out to be merely arguments about how to apply law to the

(Cont'd)

2la

Appendix D

one can most efficiently answer the question whether

Harnischfeger is within c. 260, § 2B’s protected class.

Harnischfeger asserts, without contradiction, that between

March, 1973 and June, 1974, it worked with an engineering

company employed by RESCO to design and assemble the plant’s

cranes.

The components of the crane which were custom designed

were: (a) the grapple buckets, (b) the length and diameter of wire

rope, (c) the hoist drum length and diameter, (d) the gear reducers,

(e) the motors (electric), (f) the sizes of the control components, (g)

the trolley spread, (h) the electrical conductor system, (i) the

operator’s cab, (j) the bridge girder sections, (k) the bridge drives

and speeds, (1) the trolley drives and speeds, (m) the size of

electrical conductors, (n) the bridge and trolley wheel size and

types, (0) the bridge rails, and (p) the crane electrical control

systems and electrical protection panels. [Toth Affidavit at] 5.]

Harnischfeger’s Memorandum in Support of Summary

Judgment at 4.* The cranes load refuse into feed hoppers, and are

(Cont'd)

established facts (e.g., whether Harnischfeger is in the “construction business” for

purposes of c. 260, § 2B when it manufactures cranes to be installed in buildings). See

Snow’s Memorandum in Opposition to Summary Judgment at 7.

4. Snow asserts that the trolley provided by Harnischfeger for the RESCO

crane was originally designed for a Florida purchaser, and merely adapted or sent

along to RESCO. First, even if part of an improvement is mass-produced, that does

not make the entire improvement stand outside the statute of repose. Second, it is not

(Cont'd)

22a

Appendix D

integral to the plant’s conversion of trash into energy. There exists

a mini-jurisprudence of what constitutes an improvement to real

propeLty sufficient to bring the improver within a state’s statute of

repose; and a subset of cases even treats Harnischfeger and its

cranes in particular. The Supreme Judicial Court, in construing c.

260, § 2B, has noted its holding, in another context, that “[t}he

word ‘improvements’ is of broad signification,” Milligan v.

Tibbetts Engineering Corp., 391 Mass. 364, 366 (1984) (citation

omitted); and stated that the words of the Massachusetts statute of

repose are to be construed according to their “usual and natural

meaning.” Klein v. Catalano, 386 Mass. 701, 705 (1982) (citation

omitted). In holding that the construction of a dead-end road was

an improvement to real property within c. 260, § 2B, the SJC

adduced the definition of “improvement” in Webster’s Third New

Int’] Dictionary 1138 (1971): “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. “ Milligan, 391 Mass. at 368.

Consistent with the SJC’s plain meaning approach to c. 260, §

2B, Massachusetts courts have held that designers, constructors, or

(Cont’d)

self-evident that even if the trolley constituted the entire item at issue here, that it

would advance Snow's cause to assert it was custom-designed for one purchaser, and

then sold, at the last minute, to another. The trolley remains an item built from

“individual expertise not susceptible of the quality control standards of the factory.”

Diahton v. Federal Pacific Electric Co., 399 Mass. 687, 695 (citation and internal

quotation marks omitted), cert. den., 484 U.S. 953 (1987). In any event, that is not this

case, because the item at issue here is the entire Harnischfeger crane, including bridge

girders (spanning the length of the building), rails, a trolley, a hoisting mechanism

atop the trolley, and the operator’s cab.

Se ee eee

23a

Appendix D

planners a) of bleachers adapted for a skating rink,’ b) of an

electrical distribution panel for an electric plant,* c) of aluminum

siding’ and foam insulation® for a private home, d) of a

prefabricated building for a transportation authority,’ e) of a

mooring system for a shipboard cocktail lounge,'® f) of a student

center and its plate glass door panels,'' were all actors within the

protection of the State’s statute of repose.

Two Massachusetts cases, both concerning electric panels,

furnish by their contrasts a ready explication of the statute. In

Dighton v. Federal Pacific Electric Co., 399 Mass. 687 (1987), the

court held that the supplier and manufacturer of a mass produced

circuit breaker panel was a seller of goods, not a designer of an item

that constituted an improvement to real property within c. 260,

§ 2B. The Legislature, the court found, “meant to protect providers

of ‘individual expertise’ in the business of designing, planning,

constructing, and administering improvements to real estate”; the

5. McDonough v. Marr Scaffolding Co., 412 Mass. 636 (1992).

6. Parent v. Stone & Webster Engineering Corp., 408 Mass. 108 (1990).

7. Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193, app. den., 388 Mass .

1105( 1983).

8. Conley v. Scott Products. Inc., 401 Mass. 645 (1988).

9. Cournoyer v. Massachusetts Bay Transp. Auth., 744 F.2d 208 (1st Cir. 1984).

10. Anthony « Pier Four, Inc. v. Crandall Dry Dock Engineers, Inc., 396 Mass.

818 (1986).

11. Klein v. Catalano, 386 Mass. 701 (1982).

24a

Appendix D

statute does not apply to “mere suppliers of standardized products”

who can avail themselves of the “quality control standards of the

factory,” “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 is to say, to parties

who render particularized services for the design and construction

of particular improvements to particular pieces of real property.”

Id. at 695-96 (citation and internal quotation marks omitted).

In Parent v. Stone & Webster Engineering Corp., 408 Mass.

108, 111 (1990), the court held that an engineering company which

installed an electrical distribution panel at an electric plant as part

of its work in the plant’s coal conversion had rendered

“particularized services” which “clearly involved the expenditure

of labor and money, and served to make the facility productive as a

power generating plant.”

Harnischfeger’s particularized service in designing and

constructing the crane installed at the RESCO plant makes it an

actor within the protection of the Massachusetts statute of repose.

Harnischfeger’s work is not similar to the materialman’s in

Dighton nor to that of others excluded from the compass of the

statute. See, e.g., Raffel v. Perley, 14 Mass.App.Ct. 242 (1982)

(survey plans marking property off into individual lots do not

constitute an improvement within c. 260, § 2B). Rather,

Harnischfeger’s efforts here more closely approximate those of

Stone and Webster in Parent.

In opposition to this conclusion, Snow makes six points in

chief. First, he cites McCalla v. Harnischfeger Corp, 215 N.J.

Super. 160, certif. den., 108 N.J. 219 (1987), in which the New

Jersey Superior Court’s Appellate Division held that a

Harnischfeger crane installed in an iron foundry was not an

25a

Appendix D

improvement to real property within that state’s statute of repose.

The court drew its analysis from various New Jersey tax cases

treating the meaning of the term “fixture,” and found that,

consistent with those definitions, the crane was not a fixture, but

merely a piece of “production machinery.” Jd. at 169. Without

arguing against the persuasiveness of the New Jersey case,

Harnischfeger provides a counter that goes at least to the weight of

authority, and cites three cases which hold its cranes are

“improvements” as defined by various statutes of repose.’ For its

part, the Massachusetts Supreme Judicial Court has specifically

rejected the reasoning which provides the basis for the New Jersey

court’s holding.

[Plaintiff] 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).

12. Miller v. Consolidated Aluminum Corp., 729 F.Supp. 1154 (S.D. Ohio

1990); Hall v. Harnischfeger Corp., 785 F.Supp. 675 (N.D. Ohio 1991); Sartori v.

Harnischfeger Corp., 432 N.W.2d 448 (Minnesota 1988). See also Witham v.

Whiting Corp., 975 F.2d 1342 (7th Cir. 1992) (applying Illinois limitations statute to

manufacturer which installed hoist crane in steel plant).

26a

Appendix D

Dighton, 399 Mass. at 696 (footnote omitted). Second, the

Harnischfeger crane, Snow maintains, is removable; therefore,

since it is not “permanent,” it is without the Massachusetts

statute.'? Of course, that an item can be removed or replaced hardly

means it cannot constitute an improvement. Aluminum siding can

be removed; insulation can be replaced; a roof can be rebuilt; a

chimney can be torn out and refashioned. Snow’s argument was

expressly rejected by the Supreme Judicial Court in McDonough,

412 Mass. at 640 (plaintiff “argued that the bleachers could not be

classified as a real property improvement, since they are not

‘permanent’ structures, but rather may be disassembled and

removed from the rink”).

Third, Snow claims that since Harnischfeger has

manufactured 29,000 cranes, it cannot, as a matter of law, be a

designer of the sort protected by c. 260, § 2B. However,

Harnischfeger’s 28,999 other cranes are not at issue in this case,

and evidence on their mode of manufacture, or whether they were

designed for particular purchasers would not be material. As to this

crane, uncontradicted record evidence establishes it was designed

and fitted to meet the specific requirements of the RESCO plant, as

noted above. Further, that a company engaged in design designs

many buildings, or designs many improvements to real property,

does not determine whether the designer is within the protected

class. The purpose of the Massachusetts statute is not merely to

protect experimental designs; its rationale “is hardly dependent on

some minimum level of creativity on the part of the building

designer.” Cournoyer v. Massachusetts Bay Transp. Auth., 744

F.2d 208, 211 (Ist Cir. 1984) (applying statute to extinguish claim

against manufacturer of prefabricated building).

13. “The fact that the trolleys of the overhead cranes were replaced in 1990,

negates the defendant’ s argument that the overhead cranes and trolleys are permanent

fixtures.” Snow’ s Memorandum in Opposition to Summary Judgment at 5.

27a

Appendix D

Fourth, Snow argues that a crane such as Harnischfeger’s is

not the only means of moving trash and thereby enhancing the

value of the plant; and fifth, that since Harnischfeger did not itself

install the crane at the plant, it is not part of the class of actors

protected by the statute of repose. That other design solutions to

the problem of moving and sorting trash in the RESCO plant might

be better, or more economical, or less labor intensive, or that other

machines or crews of workers could effectively do the labor of the

Harnischfeger crane is irrelevant. The question is whether the

crane was an improvement to real property which enhanced the

property’s value; not whether other improvements might be made

which would yield similar — or even greater — increases in value,

but by other means. The material fact that the crane increased the

plant’s value to some degree is not in dispute here. Harnischfeger

need not have itself installed the crane in the RESCO plant to

benefit from the statute. Harnischfeger’s activity will be protected

if it custom-designed an improvement to real property; in other

words, if it manufactured its crane to the particular specifications

of the RESCO plant, and thereby rendered a “particular

improvement|[] to {a] particular piece[] of real property.” Jd. at 696.

In Dighton, 399 Mass. at 697-98, the Supreme Judicial Court

provided a brief comment on the class of actors protected by the

Statute:

... ifa piece of metal sculpture were welded to

an exposed girder in a building, it certainly

could be characterized as “a permanent

addition to or betterment of” the property, one

“enhanc[ing] its Capital value”... . 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 think not. If he produced the sculpture on

28a

Appendix D

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.

Harnischfeger, as the RESCO plant’s crane designer and

manufacturer, producing a crane to meet “specifications provided

in part by the architect and engineer,” fits even more securely

within section 2B’s protected class than the sculptor in example

one, above."*

14. In its Supplemental Memorandum, Harnischfeger refers to a recently

decided case in the Western District of Missouri, Hayslett v. Harnischfeger Corp.,

Case No. 92-0026-CV-W-2 (February 26, 1993, W.D. Mo.), 1993 U.S. Dist. LEXIS

3011. The district court, in applying the Missouri statute of repose (closely similar to

Massachusetts’ statute), noted that under applicable state law,

[A] defendant such as Harnischfeger may make “two

separate and distinct arguments” that it is covered by the

statute. “First, a manufacturer may claim that its activity

in fabricating, assembling or manufacturing building

materials or a component part incorporated within the

real property in the construction of the improvement ‘is,

[sic] performing or furnishing, ... construction,

including ... comstruction services, of the

improvement’ ” The second, and alternative, argument

available to a defendant such as Harnischfeger is that “it

performed or furnished design, planning or engineering

(Cont’d)

29a

Appendix D

Finally, Snow asserts that Harnischfeger did not “render[] any

particularized services in the design or construction of the RESCO

building.” Snow’s Supplemental Memorandum in Opposition to

Summary Judgment at 7. However, the Massachusetts statute of

repose treats improvements to real property, not to buildings alone.

Massachusetts courts have not required that, to benefit from the

protections of c. 260, § 2B, an actor must have designed or

constructed a building, or even part of a building. See, e.g,

Crandall Dry Dock, 396 Mass. at 823 n.8 (without deciding

| whether ship itself was improvement to real property, “the

) mooring system made possible the placement of the ship

immediately adjacent to the restaurant so that it could be used as a

cocktail lounge, thereby enhancing the capital value of the |

restaurant”); Tibbetts Engineering, 391 Mass. 364 (design and

(Cont'd)

devices by reason of the design and engineering

activities involved in developing its product.”

Hayslett at7.

While I find the Missouri district court’s reasoning in Hayslett

unexceptionable, Hayslett adds only to the weight of authority already cited above, in

footnote 12. Moreover, Massachusetts courts have not now, nor may they ever, adopt

Missouri’s two prong test for applying its statute of repose. (I note, however, that

Snow has sought to apply to Harnischfeger a very narrow version of the first prong of

the Missouri test without giving Harnischfeger the benefit of the second prong. That

is, Snow argues, in essence, that if Harnischfeger did not custom design and install

materials critical to the building housing the RESCO plant, it is nota protected actor

for purposes of c. 260, § 2B. If it did not custom design some necessary part of the

building — walls, floor, foundation, roof —; or if it did not itself install the product of

its manufacture, then, Snow seems to contend, Harnischfeger is a mere materialman

or supplier. But, as noted above, that cramped reading of section 2B is nota persuasive

interpretation of Massachusetts law. Snow would like to require Harnischfeger to be

a general administrator of areal property improvement; but the statute also provides

protection for designers and planners of such improvements. Harnischfeger falls in

this latter category.)

30a

Appendix D

construction of dead end road). It is not pertinent that the

“improvement” at issue is in part a machine; the Supreme Judicial

Court has not held that there is a taxonomy to be applied to

determine whether a product is an improvement, but rather it has

applied a functional analysis, as shown in Crandall’s Dry Dock,

Milligan, and McDonough.

In the language Massachusetts courts have used in construing

c. 260, § 2B, the Harnischfeger crane is clearly a “permanent

addition to or betterment of” the RESCO plant; it “enhances its

plant’s] capital value”; it “involves the expenditure of labor or

money”; it is “designed to make the property more useful or

valuable”; and it is an item plainly “distinguished from ordinary

repairs.” Milligan, 391 Mass. at 368, Raffel, 14 Mass.App.Ct. at

245; see also Crandall’s Dry Dock, 396 Mass. at 823 n. 8 . Further,

in fashioning the crane for RESCO, Harnischfeger’s individual

expertise was engaged in the protected activity of designing,

planning, or constructing an “improvement to real property.”

Parent, 408 Mass. at 111 (engineering company which installed

electrical distribution panel within statute’s grant of immunity

from suit); McDonough, 412 Mass. at 644 (supplier which

“designed the bleacher [seating] units specifically for the rink”

within statute).

15. Of course, as I have here several times emphasized, “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. . . .“ Dighton, 399 Mass.

at 698 (emphasis added). If an architect had designed the RESCO plant, his design

calling for a mass-produced crane to be permanently installed, whereas the architect’ s

activity in designating and ordering the crane would be protected, the manufacturer’s

in producing it would probably not be protected. In the present case, however, the

manufacturer worked closely with plant engineers in designing the crane to meet the

plant’s particular specifications. Harnischfeger’s role as manufacturer is akin to that

of Marr Scaffolding in McDonough (bleachers), an actor whose activity was within

the statute.

3la

Appendix D

Ill

Snow brought this action more than six years after

Harnischfeger’s crane was built and opened for use in the RESCO

plant. Therefore, his action is extinguished by the Massachusetts

Statute of repose. Harnischfeger’s motion for summary judgment is

hereby ALLOWED.

s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

32a

APPENDIX E — AFFIDAVIT OF BRUCE MANNING IN

THE UNITED STATES DISTRICT COURT, DISTRICT OF

MASSACHUSETTS DATED APRIL 30, 1992

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION

NO.: 90-13096-WD

DAVID SNOW, LINDA SNOW, JASON SNOW and KEVIN

SNOW,

Plaintiffs

Vv.

HARNISCHFEGER CORPORATION,

Defendant

AFFIDAVIT OF BRUCE MANNING

I, Bruce Manning, on oath depose and state as follows:

1. I am the plant manager for Refuse Energy Systems

Company’s (RESCO) plant in Saugus, Massachusetts. The

original construction of the plant was completed and its operation

began in 1975. As part of that original construction, two overhead

cranes were incorporated into the plant’s buildings. They were

crane serial numbers C24935 and C24936. These cranes have been

and are an integral component of the plant buildings. They are used

to lift and move trash using large grappling shovels from the

receiving area to the refuse feed hoppers. The trash is then fed into

a burner and burned. As a result of this combustion, steam is

generated and converted through a turbine into electricity. The

OE — <<a

33a

Appendix E

cranes operate almost continuously throughout the day loading

trash into the feed hoppers. This loading operation constitutes an

essential part of the overall purpose and function of this plant

which converts refuse into electric power.

2. The cranes are supported on runway girders which span the

entire length of the trash pit and feed hopper area of the plant in an

East-West direction. The bridge girders of the cranes are supported

by these runway girders. The bridges move along the girders in an

East- West direction. The trolleys of the cranes are supported by the

bridges. The trolleys contain the hoisting mechanisms which lift

the grappling shovels. They move in a North-South direction. They

were installed as an integral component of the plant building.

There were not any significant modifications or changes to the

structures of these cranes from 1975 through 1987.

3. Due to the cranes’ function of continuously loading trash

into the trash feed hoppers, they are an integral and important

component of the overall operation of the plant. They constitute a

permanent addition to the property as part of the plant buildings.

As installed and constructed, they were intended to make the

property useful and valuable as an integral part of the overall plant.

Signed under the pains and penalties of perjury this 30th day

of April, 1992.

s/ Bruce Manning

Bruce Manning

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS.

34a

Appendix E

Then appeared the above-named Bruce Manning and swore to

the truth of the above statements before me.

s/ Martha L. Murray

Notary Public

My Commission Expires: 6/95

35a

APPENDIX F — AFFIDAVIT OF ANDREW R. TOTH IN

THE UNITED STATES DISTRICT COURT, DISTRICT OF

MASSACHUSETTS DATED NOVEMBER 6, 1992

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION

NO.: 90-13096-WD

DAVID SNOW, LINDA SNOW, JASON SNOW and KEVIN

SNOW,

Plaintiffs

HARNISCHFEGER CORPORATION,

Defendant

AFFIDAVIT OF ANDREW R. TOTH

I, Andrew R. Toth, on oath depose and state as follows:

1. I am presently the Director of Product Safety for

Harnischfeger Industries, Inc. I was employed by Harnischfeger

Corporation from 1962-1987, in various Capacities including

Chief Engineer for Hoist Products from 1973-1982.

2. Ihave reviewed and am familiar with the business records

of Harnischfeger regarding two overhead cranes, serial numbers

C24935 and C24936, which were installed in the Refuse Energy

Systems Company’s (RESCO) plant in Saugus, Massachusetts.

These records include the complete sales file and the engineering

drawings. I have also inspected these cranes at the RESCO plant.

36a

Appendix F

During the 30-year period of my employment at Harnischfeger

Corporation and Harnischfeger Industries, Inc., I have become

knowledgeable about the overhead cranes manufactured and

3. Beginning in March, 1973, MHarnischfeger had

communications with the Rust Engineering Company of Louisiana

regarding the design and manufacture of two 13 ton overhead

cranes for use at a trash incineration plant which was planned for

construction in Saugus, Massachusetts. The plant was to be

operated by the Refuse Energy Systems Company. Rust was the

engineering and construction firm acting as RESCO’s agent in

specifying and purchasing the overhead cranes for incorporation

into the plant.

4. Overhead cranes such as these were not mass produced by

Harnischfeger. Rather, they were custom designed, manufactured

and constructed to meet the specifications of the individual

customer and the requirements of the particular plant under

construction. For example, the lifting capacity and the dimensions

of the major components of these cranes (the bridge girders, trolley

and hoists) were designed to meet the unique lifting requirements

for this particular plant under construction as specified by Rust

Engineering. Engineering drawings were created for the cranes

only after a specific order was received, and then they were

submitted for approval by Rust Engineering before manufacturing

was begun. The components of the crane would be designed,

manufactured and constructed for incorporation into the specific

building and job function intended by the particular customer.

5. During the period between March 1, 1973 when

Harnischfeger first had contact with Rust Engineering until June,

1974 when the subject cranes were shipped from Harnischfeger’s

plant in Milwaukee, Wisconsin, Rust and Harnischfeger had

37a

Appendix F

communications about the specifications and requirements for

these cranes. The crane was intended to be incorporated into a trash

incineration plant and used to load trash into refuse hoppers. Rust

specified to Harnischfeger, among other things, the following

features of the cranes: (a) the required amount of refuse to be

moved per hour, (b) the span of the bridge girders, (c) the lifting

height, (d) the trolley, bridge and hoist cycles and speeds, (e) the

type of controls and (f) the type of grapple. The cranes were custom

designed, manufactured and built by Harnischfeger in accordance

with the specifications provided by Rust for the purpose of

handling trash at the RESCO plant. The components of the crane

which were custom designed are: (a) grapple buckets, (b) length

and diameter of wire rope, (c) hoist drum length and diameter, (d)

gear reducers, (e) motors (electric), (f) sizes of control

components, (g) trolley spread, (h) electrical conductor system, (i)

operator’s cab, (j) bridge girder sections, (k) bridge drives and

speeds, (1) trolley drives and speeds, (m) size of electrical

conductors, (n) bridge and trolley wheel sizes and types, (0) bridge

rails, (p) crane electrical control systems and electrical protection

panels.

6. By way of illustration, attached as Exhibit A is a copy of

the detailed specifications for the cranes which was submitted to

Harnischfeger by Rust Engineering. Attached as Exhibit B is a

copy of Harnischfeger’s Final Proposal and Addenda for the

cranes. Attached as Exhibit C is a copy of the certified print of the

Clearance Drawing for the cranes. Attached as Exhibit D are copies

of the Wiring Diagrams for the cranes. Attached as Exhibit E are

copies of the Trolley Layout, Bridge Layout, Front Platform,

Access Platforms, Handrails and Ladders, Rear Platform, Access

Ladder Guard and Front Platform Drawings for the cranes. Finally,

Exhibit F is a videotape of the cranes in operation at the RESCO

plant on February 7, 1991 which demonstrates their configuration,

dimensions, features and operation.

38a

Appendix F

7. Each crane had lifting capacity of 13 1/2 tons. The

maximum lifting height was 102 feet. The bridge girders spanned

over 78 feet. The shipment weight for each crane was 170,000

pounds. The cranes were custom made to fit within the building so

that the overhead clearance was only 6 inches and the wall

clearance was only 1 7/8 inches.

8. The cranes are unique and custom designed, planned,

engineered, approved, and constructed. They were intended to be

incorporated as a permanent fixture of the RESCO plant. The

cranes are not structures which can be disassembled effectively,

rebuilt and used in another structure without major modifications.

As such, Harnischfeger was involved with Rust in the design,

planning and construction of these cranes which were intended to

be, and ultimately became, an integral component of the plant.

9. The purchase price for the cranes was $437,000.

Signed under the pains and penalties of perjury this 6th day of

November, 1992.

s/ Andrew R. Toth

Andrew R. Toth

Then appeared the above-named Andrew R. Toth and swore to

the truth of the above statements before me.

s/ Deloris Endus

Notary Public

My Commission Expires: 6/18/95

39a

APPENDIX G — AFFIDAVIT OF DAVID MACCOLLUM

IN THE UNITED STATES DISTRICT COURT, DISTRICT

OF MASSACHUSETTS DATED DECEMBER 4, 1992

WITH ATTACHMENT

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION

NO.: 90-13096-WD

DAVID SNOW, LINDA SNOW, JASON SNOW and KEVIN

SNOW,

Plaintiffs

HARNISCHFEGER CORPORATION,

Defendant

AFFIDAVIT OF PLAINTIFF’ S EXPERT,

DAVID MacCOLLUM

I, David MacCollum, on oath depose and state as follows:

1. I have been retained as the plaintiffs’ crane expert in the

above referenced case.

2. Ihave investigated hundreds of crane accidents and I have

visited over thirty buildings or structures which housed or

supported overhead cranes similar to the one at issue in the above

referenced case.

40a

Appendix G

3. Overhead cranes, similar to the one at issue in this case are

not solely used in the trash incineration business.

4. Overhead cranes are used by industry because they are able

to enhance production in the most efficient manner.

5. Overhead cranes like the one at issue in the above

referenced case are always housed in buildings or supported by

structures to provide the industry with greater control of

production and the environment.

6. Overhead cranes are used for specific production purposes

and not to enhance the value of real estate.

7. Other means, such as conveyor belts, shovels and

manpower while not as efficient or as productive, are available and

have been used to accomplish the same tasks that overhead cranes

accomplish.

8. In my opinion, Harnischfeger’s design and manufacture of

the overhead crane and trolley at issue are not unique.

9. Other manufacturers, such as Milwaukee Crane, Shaw

Box/Dresser, Shepard-Niles Bridge Crane and Reading Crane

produce overhead cranes and trolleys similar to the one at issue.

10. The ANSI B30.2 standards apply to overhead cranes and

gantry cranes as well as semi-gantry, cantilever gantry, wall

cranes, storage bridge cranes and others having the same

fundamental characteristics because they all have trolleys and

similar travel characteristics. See attachment.

11. Section 2-0.2 of the ANSI B30.2 Standard defines a crane

4la

Appendix G

as “a machine for lifting and lowering a load and moving it

horizontally, with the hoisting mechanism an integral part of the

machine. Cranes, whether fixed or mobile, are driven manually or

by power.” See copy of definition attached.

12. Section 2-0.2 of the ANSI B30.2 Standard defines

overhead cranes as “a crane with a movable bridge carrying a

movable or fixed hoisting mechanism and traveling on an

overhead fixed runway structure.” See copy of definition attached.

13. Pursuant to the ANSI B30.2 definitions, overhead cranes

and trolleys similar to the one at issue are pieces of machinery.

14. Overhead cranes and trolleys similar to the one at issue

are pieces of heavy duty machinery, used solely for production

purposes.

SIGNED UNDER THE PAINS AND PENALTIES OF

PERJURY THIS 4 DAY OF DECEMBER, 1992.

s/ David MacCollum

David MacCollum

42a

Appendix G

USA STANDARD

SAFETY CODE FOR CRANES, DERRICKS, HOISTS,

JACKS AND SLINGS

Overhead and Gantry Cranes

USAS B30.2.0 - 1967

Partial Revision of USAS B30.2-1943

American National Standard

This standard is one of approximately 6000

approved as either a USA Standard or as an

American Standard. It became an American

National Standard in October 1969 when the

Institute changed its name to American

National Standards Institute, Inc.

ANSI, 1430 Broadway, New York, N.Y. 10018