Opposition Brief — Snow v. Harnischfeger Corp.

Exrums Overt, 0.8

EILED

0) JUN 2.7 1994

No. 93-1700 : VAN. Hr CLERK

In The

Supreme Court of the United States

+

October Term, 1993

DAVID SNOW, LINDA SNOW, JASON SNOW and KEVIN

SNOW,

Petitioners,

VS.

HARNISCHFEGER CORPORATION,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the First Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

RICHARD L. EDWARDS

Counsel of Record

CAMPBELL & ASSOCIATES

PROFESSIONAL CORPORATION

Attorneys for Respondent

One Constitution Plaza

Boston, Massachusetts 02129

(617) 241-3000

5120

iz (800) 3 APPEAL * (800) 5 APPEAL « (800) BRIEF 21

BR erices, inc.

\) x

QUESTION PRESENTED

Whether it would be improvident to issue a writ of certiorari in

this case wherein (a) the United States District Court for the District

of Massachusetts correctly applied a Massachusetts statute of

repose in a personal injury case to bar the petitioners’ tort claims;

(b) the United States Court of Appeals for the First Circuit correctly

applied Massachusetts law and affirmed the district court's

decision and (c) the court of appeals reasonably exercised its

discretion and denied the petitioners’ request (not made until

shortly before oral argument) to certify questions of state law to the

Supreme Judicial Court of Massachusetts because it found

controlling precedent sufficient to render a decision based upon

state law?

ii

TABLE OF CONTENTS

Page

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Reasons for Denying the Writ .......ccccccccccceses 3

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TABLE OF CITATIONS

Cases Cited:

Antnony’s Pier Four, Inc. v. Crandall Dry Dock Engineers,

Dh, FOU BIS Ne) 8 vv nbes dv entdcsessrcel 6

Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed.

PORT xiv bocce tahbunadeiVintinds astringent 4

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S. Ct.

ye, Bt rr ree a

City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96

ty re er rrr rr res bee 6

Conley v. Scott Products, Inc.,401 Mass. 645 (1988) .... 6

ee

ee a ee eee

iii

Contents

Page

Cournoyer v. MBTA, 744 F.2d 208 (ist Cir. 1984) ....... 6

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

SE Che SRG UNd OAEWS coud dawk aveabedies 6: bees 6

Fischer v. Bar Harbor Banking & Trust Co., 857 F.2.d4 (1st

Cir. 1988). cert. denied ,489 U.S. 1018,109S Ct. 1135,

ce etch ewes ceee ses 7

Goodman v. Lukens Steel Co., 482 U.S. 656,107 S. Ct.

RTs PUREED cccccccvececcevesses 4

Granberry v. Greer, 481 U.S. 129, 107 S. Ct. 1671, 95 L.

linc dnt wae e 660 beens se eae oe 3

Haring v. Prosise, 462 U.S. 306, 103 S. Ct 2368, 76 L. Ed.

in Date dirk ae dinnenaneeatiss eo 4

Klein v. Catalano, 386 Mass. 701 (1982) .............. 6

Lehman Bros. v. Schein, 416 U.S. 386, 94 S. Ct. 1741, 40

i oe nl danas win 0 a 7

McDonough v. Marr Scaffolding Co., 412 Mass. 636

EE SR a er ee 6

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

SU nedieh hc thalt- dled whik.s W's bd NRE HANES Ke eees 6

National Collegiate Athletic Assn. v. Board of Regents of

Univ. of Okla., 468 U.S. 85,98 104 S. Ct. 2948, 82 L. Ed.

ee wedhteestees 6auaWse ee 4

rr

iv

Contents

Parent v. Stone & Webster Engineering Co.,408 Mass. 108

ERP on-0% K4seebeaennkee 6059 sete benuuaeneunes

Pembaur v. City of Cincinatti, 475 U.S. 469, 106 S. Ct.

Se at POUR ETEED wees essnssceeceseess

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L. Ed. 2d

ENE edvccbesevidimestacavens s0adabbaueeeds

Propper v. Clark, 337 U.S. 472, 69 S. Ct. 1333, 93 L. Ed

ROGET). pres ncsusdecess déatdasadvunethecs

Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 106

S. Ct. 507, 10, 88 L. Ed. 2d523(1985) .............

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

BR eons 5 bnkan beeke be eee beens ceuees

Salinsky v. Perma-Home Corp., 15 Mass. App. Ct. 193

cide pisnebbed eek deté sek beet heene nse te

Statute Cited:

Massachusetts General Laws, Chapter 260,§2B .......

Rules Cited:

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

United States Supreme Court Rule 10.1(a) ............

Page

Sea = i A.

ee a neers

1

STATEMENT OF THE CASE

During 1973-74, the respondent, Harnischfeger Industries,

Inc. (“Harnischfeger”) designed, engineered and constructed two

overhead cranes for a trash incineration and power generating

plant located in Saugus, Massachusetts. The cranes were custom

engineered and designed by Harnischfeger to exacting

specifications supplied by the trash plant’s owner, Refuse Energy

Systems Co. (“RESCO”) and an architectural and engineering

firm, Rust Engineering Co. (“RUST”). The plant became

operational in 1975.

In December, 1987, some thirteen years after Harnischfeger

had provided its design and engineering services, and twelve years

after the trash plant had become operational (with the cranes

functioning as integral components) the petitioner, David Snow,

was injured when one of the cranes struck his hand. Almost three

years later, in December, 1990, Snow commenced a personal

injury tort claim against Harnischfeger in the Massachusetts

Superior Court. Harnischfeger removed the case to the United

States District Court for the District of Massachusetts. After a two

year period of factual discovery, the district court granted

summary judgment in Harnischfeger’s favor on the basis of a

Massachusetts statute of repose. Appendix D. The statute granted

immunity from suit to persons engaged in the design, planning and

construction of improvements to real property for all personal

injury claims occurring more than six years after completion of the

improvement. ' M.G.L.A.c. 260, §2B.

1. 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, other than that of a public

agency as defined in section thirty-nine A of chapter

seven shall be commenced only within three years next

(Cont'd)

2

Snow never requested that the district court submit certified

questions of law to the Massachusetts Supreme Judicial Court

(“SJC”), despite the existence of a procedure for doing so.’

Supreme Judicial Court Rule 1:03, § 1. In fact, he argued existing

Massachusetts law was dispositive of the case. Appendix A at 16a.

It was not until shortly before oral argument took place in the

United States Court of Appeals for the First Circuit that Snow

requested certification. The court of appeals denied Snow’s motion

for certification and affirmed the decision of the district court

Stating it was “satisfied that sufficient guidance is available [based

upon existing Massachusetts precedent] and certification is

inappropriate under the circumstances of this case.” Appendix A at

16a.

Snow now petitions this Court to grant a writ of certiorari to

review findings of fact and construction of state law made by the

district court and the court of appeals.

(Cont’d)

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.

2. This court may answer questions of law certified to it by

the Supreme Court of the United States, a Court of

Appeals of the United States, or of the District of

Columbia, or a United States District Court, or the

highest appellate court of any other state when requested

by the certifying court if there are involved in any

proceeding before it questions of law of this state which

may be determinative of the cause then pending in the

certifying court and as to which it appears to the

certifying court there is no controlling precedent in the

decisions of this court.

3 \

SUMMARY OF ARGUMENT

This Court should not grant further review because there

exists no compelling or important reason to do so. The petitioner’s

tort claim was dismissed by application of existing state law to

findings of undisputed facts made by the district court. The court of

appeals conducted a de novo review of the district court’s judgment

and also found controlling precedent sufficient to result in

dismissal of the petitioner’s claims. In the exercise of its sound

discretion, the court of appeals also declined the petitioner’s

request to certify questions of law to the SJC. Under the

circumstances, no compelling reason whatever exists for this court

to undertake further review of the lower courts’ factual findings

and construction of the Massachusetts statute of repose.

REASONS FOR DENYING THE WRIT

While discretionary, review by writ of certiorari normally is

not granted in the absence of “special and important reasons

therefor” or, in circumstances where a court of appeals “has so far

departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower court, as to

call for an exercise of this Court’s power of supervision.” Rule

10.1(a) of the Rules of the Supreme Court. When a federal court’s

determination of state law unconnected to any constitutional or

federal law question is challenged, review is particularly

inappropriate and exceedingly rare. Great deference properly is

accorded by this Court to the interpretation and application of state

law by the district courts and courts of appeals which are skilled in

the substantive law of the particular states. See, e.g., Granberry v.

Greer, 481 U.S. 129, 136 n. 9, 107 S. Ct. 1671, 1676 n. 9, 95 L. Ed.

2d 119 (1987) (Court declined to review court of appeals

determination that petitioner had not exhausted state remedies);

Pembaur v. City of Cincinatti, 475 U.S. 469, 484 n. 13; 106 S. Ct.

1292, 1301 n. 13, 89 L. Ed. 2d 452 (1986) (Court declined to

4

review court of appeals determination of state law consistent with

accordance of “great deference to the interpretation and

application of state law by the court of appeals”); Regents of Univ.

of Michigan v. Ewing; 474 U.S. 214, 224 n. 10, 106 S. Ct. 507, 513

n. 10, 88 L. Ed. 2d 523 (1985) (“In dealing with issues of state law

that enter into judgments of federal courts, we are hesitant to

overrule decisions by federal courts skilled in the law of particular

states unless their conclusions are shown to be unreasonable”,

quoting from Propper v. Clark, 337 U.S. 472, 486-87, 69 S. Ct.

1333, 1342, 93 L. Ed. 1480 (1949)). This deference reflects the

Court’s belief that “district courts and courts of appeal are better

schooled in and more able to interpret the law of their respective

States”. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 500, 105

S. Ct. 2794, 2800, 86 L. Ed. 2d 394 (1985). See also, Haring v.

Prosise, 462 U.S. 306, 314 n. 8, 103 S. Ct 2368, 2373, 76 L. Ed. 2d

595 (1983); Pierson v. Ray, 386 U.S. 547, 558 n. 12, 87S. Ct. 1213,

1220, 18 L. Ed. 2d 288 (1967).

Similarly, where consistent findings of fact by two lower

courts are challenged, further review should not be undertaken

absent extraordinary circumstances or a very obvious and

exceptional showing of error. See, e.g., Goodman v. Lukens Steel

Co., 482 U.S. 656, 655, 107 S. Ct. 2617, 2623, 96 L. Ed. 2d 572

(1987) (“[B]oth courts below having agreed on the facts, we are not

inclined to examine the record for ourselves absent some

extraordinary reason for undertaking this task.”); National

Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468

U.S. 85, 98 n. 15, 104.S. Ct. 2948, 2959, 82 L. Ed. 2d 70 (1984) (“In

accord with our usual practice, we must now accord great weight to

a finding of fact which has been made by a district court and

approved by a court of appeals.”); accord, Branti v. Finkel, 445

U.S. 507,512 n. 6, 100 S. Ct. 1287, 1291, 63 L. Ed. 24 574 (1980).

The district court dismissed Snow’s tort claim after a careful

review of the affidavits and deposition testimony submitted. It

5

made factual findings and rejected Snow’s assertion that genuine,

material issues of fact were in dispute. As the district court

explained, Snow’s contention that genuine issues of material fact

existed really amounted to an “argument about how to apply law to

established facts.” Appendix D at 20a-21a, n. 3. The court of

appeals conducted a de novo review of the district court’s findings.

It also found no merit to Snow’s assertions that genuine issues of

material fact existed. “As the district court aptly stated, the Snows’

contention is ‘merely [an argument] about how to apply law to the

established facts.’ To the extent there is a dispute, it is immaterial

to the disposition of the action.” Appendix B at 8a.

Based upon the established, undisputed facts, neither the

district court nor the court of appeals had any difficulty

determining that the Massachusetts statute of repose barred

Snow’s claims. Both decisions were premised solely on the

substantive tort law of Massachusetts; no federal or constitutional

questions were raised. This court should not conduct yet a third de

novo review of the facts, nor for a third time apply the substantive

tort law of Massachusetts to those facts. Any further review is

unjustified.

Disappointed with the district court and court of appeals

factual findings and application of state law to dismiss his claims,

Snow finally complains that the court of appeals erred when it

declined to certify questions of law to the SJC. As is clear from the

record however, certification would have been inappropriate under

the applicable SJC standard. Even if certification was permissible,

use of the procedure resides in the sound discretion of the federal

court and its reasonable exercise of this discretion should not be

disturbed.

The SJC permits certification of determinative issues where

“it appears to the certifying court there is no controlling precedent

in the decisions of the Supreme Judicial Court.” Supreme Judicial

6

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

the Massachusetts statute of repose in no fewer than seven cases.

See, e.g., Klein v. Catalano, 386 Mass. 701 (1982); Salinsky v.

Perma-Home Corp., 15 Mass. App. Ct. 193 (1983); Milligan v.

Tibbetts Engineering Corp., 391 Mass. 364 (1984); Anthony's Pier

Four, Inc. v. Crandall Dry Dock Engineers, Inc., 396 Mass. 818

(1986); Dighton v. Federal Pacific Electric Co., 399 Mass. 687

(1987); Conley v. Scott Products, Inc., 401 Mass. 645 (1988);

Parent v. Stone & Webster Engineering Co., 408 Mass. 108 (1990);

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

court of appeals also had occasion to construe the statute in

Cournoyer v. MBTA, 744 F.2d 208 (ist Cir. 1984). While Snow

initially argued to the district court that the Dighton case was

dispositive, shortly before oral argument in the court of appeals he

claimed, “local law on this question has not been clearly

determined.” The court of appeals flatly rejected this contention

stating its satisfaction that “sufficient guidance is available and

certification is inappropriate under the circumstances of this case.”

Appendix B at 16a.

While in some circumstances certification of state law

questions would be appropriate, it is by no means required. Where

questions of state law are not uncertain, certification is

unnecessary and would amount to a waste of time and expense.

City of Houston v. Hill, 482 U.S. 451, 470-71, 107 S. Ct. 2502,

2514-15, 96 L. Ed. 2d 398 (1987). Even in cases where there is

some doubt as to the interpretation of state law, certification is not

obligatory. For example, the First Circuit has declined to certify

where it is convinced of how the state court would apply state law,

even in the absence of a direct answer. Russell v. Salve Regina

College, 938 F.2d 315, 318 (1st Cir. 1991). As this Court has aptly

said,

We do not suggest that where there is doubt as

to local law and where certification procedure

7

is available, resort to it is obligatory . . . Its use

in a given case rests in the sound discretion of

the federal court.

Lehman Bros. v. Schein, 416 U.S. 386, 390, 94 S. Ct. 1741, 1744,

40 L. Ed. 2d 215 (1974). Stated another way,

If a district court or court of appeals believes

that it can resolve an issue of state law with

available research materials already at hand,

and makes the effort to do so, its determination

should not be disturbed simply because the

certification procedure existed but was not

used. The question of whether certification [of

a particular case]. . . would have advanced the

goal of correctly disposing of [the] litigation on

the state law issue is one which I would leave,

and I understand that the Court would leave, to

the sound judgment of the court making the

initial choice.

Id. 416 U.S. at 395, Rehnquist, J., concurring.

As implicitly suggested by Lehman Bros., and as explicitly

stated by the First Circuit, a party’s failure (such as Snow’s) to

suggest certification until a late stage in the proceedings

considerably weakens his insistence on certification. Fischer v.

Bar Harbor Banking & Trust Co., 857 F.2d 4, 8 (ist Cir. 1988),

cert. denied, 489 U.S. 1018, 109 S. Ct. 1135, 103 L. Ed. 2d 2196

(“Though the failure to raise the issue would not necessarily

prevent our certifying at this late stage, it considerably weakens

plaintiff’s insistence on his right to certification.”) Therefore, the

court of appeals would have been justified in rejecting Snow’s

request for certification on the grounds that it was untimely. In any

event, the lateness of the request raised substantial further doubt as

to its appropriateness. 3

8

The court of appeals found ample controlling precedent and

guidance so as to apply the Massachusetts statute of repose to

Snow’s claims in this case. While certification was inappropriate

and unnecessary, the court of appeals carefully considered Snow’s

late request to do so. As there was no abuse of discretion or

manifest error, its decision to decline Snow’s request should not be

disturbed by this Court.

CONCLUSION

Massachusetts law describing the extent of the protection

from tort suits afforded to persons engaged in the design, planning

and construction of improvements to real property is

comprehensive and clear. The factual record before the district

court and the court of appeals was equally comprehensive and

clear. Presented with this factual record, and after careful

consideration of binding precedent, the district court correctly

applied the statute of repose and held that Snow’s claims were

barred. The court of appeals, in the exercise of its sound discretion,

declined to certify questions of law to the SJC and correctly

affirmed the district court’s decision. There is no important or

compelling reason for this Court to conduct any further review.

Respectfully submitted,

RICHARD L. EDWARDS

Counsel of Record

CAMPBELL AND ASSOCIATES

PROFESSIONAL CORPORATION

Attorneys for Respondent

One Constitution Plaza

Boston, MA 02129

(617) 241-3000