

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                                                                                  

No. 95-1206
             JOAO CARREIRO, INDIVIDUALLY AND AS 
                ADMINISTRATOR OF THE ESTATE OF
                     TERESA V. CARREIRO,
                    Plaintiff, Appellant,

                              v.

              RHODES GILL AND CO., LTD., ET AL.,
                    Defendants, Appellees.

                                                                                                    

No. 95-1239
              JOAO CARREIRO, INDIVIDUALLY AND AS
               ADMINISTRATOR OF THE ESTATE OF 
                     TERESA V. CARREIRO,
                     Plaintiff, Appellee,

                              v.

              RHODES GILL AND CO., LTD., ET AL.,
                    Defendants, Appellees,

                                                                                                  

                   MAIN MACHINERY COMPANY,
                    Defendant, Appellant.

                                                                                                  

       APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
                THE DISTRICT OF MASSACHUSETTS 

    [Hon. Robert E. Keeton, United States District Judge]                                                                    
   [Hon. Richard G. Stearns, United States District Judge]                                                                     

                                                                                                  

                                                                                                  

                            Before

               Selya and Stahl, Circuit Judges,                                                          

                 and Gorton,* District Judge.                                                        

                                                                                                  

   Paul  A. Epstein with whom  Spillane &amp; Epstein  was on brief                                                             
for Joao Carreiro.
   Judith  A. Perritano with whom  Joel F. Pierce and Morrison,                                                                           
Mahoney &amp; Miller were on brief for Main Machinery Company  and H.                          
Leach Machinery Company. 
   Robert D. Fine with whom Licht  &amp; Semonoff was on brief  for                                                         
Barry  G. Hittner,  Receiver  of Rumford  Property and  Liability
Insurance Company.
   Jeanne  O'Leary McHugh with whom Law Offices of Bruce R. Fox                                                                           
was on brief for The Robbins Company.

                                                                                                  
                      November 1, 1995                                   November 1, 1995
                                                                                                  

                                                  

*Of the District of Massachusetts, sitting by designation. 

          STAHL, Circuit Judge.   These  appeals arise from a                      STAHL, Circuit Judge.                                          

product   liability  and  wrongful   death  suit  brought  by

appellant Joao  Carreiro, whose wife Teresa  was killed while

operating a machine press at The Robbins Company ("Robbins").

Carreiro sued Rhodes Gill &amp; Co., Ltd. ("Rhodes"), the English

manufacturer  of  the  machine; H.  Leach  Machinery  Company

("Leach"), the dissolved domestic distributor of the machine;

Main  Machinery  Company  ("Main"),  the   alleged  successor

corporation to  Leach;  and Rumford  Property  and  Liability

Insurance  Company  ("Rumford")1, Leach's  insurance carrier.

Rhodes failed  to answer  the complaint and  defaulted.   The

district court  granted summary  judgment for Leach,  holding

that  it was not amenable  to suit because  it terminated its

corporate existence long before the accident.  The court then

dismissed Rumford, ruling that there can be no  direct action

against  the insurer  of  a dissolved  corporation under  the

applicable Rhode  Island statute.  The  court granted summary

judgment for Main, finding  that it was not the  successor to

Leach.  Carreiro appeals those rulings,  which we now affirm.

Main impleaded  Robbins,  who had  contractually  indemnified

Leach when it  purchased the press. The  district court found

that  Main was not a  successor to Leach  and granted summary

judgment for Robbins on Main's third-party claim.  Because we

                                                    

1.  Rumford is in receivership and is represented in this
action by its receiver, Barry G. Hittner.

                             -3-                                          3

affirm summary judgment for  Main on Carreiro's claim, Main's

appeal of the ruling in favor of Robbins is moot.

                              I.                                          I.                                            

                          BACKGROUND                                      BACKGROUND                                                

A.  Overview                        

          In reviewing the several  rulings appealed from, we

first offer this brief  factual overview.  On March  7, 1988,

Teresa  Carreiro  was operating  a "New  Stamp-Matic" machine

press  while employed  at the  Robbins Company  in Attleboro,

Massachusetts.  During  operations, a  piece of  a die  broke

off, penetrated a plexiglass guard and struck Ms. Carreiro in

the neck, inflicting a fatal injury.  

          Rhodes  manufactured  the allegedly  defective "New

Stamp-Matic"  press in England.   Leach, a seller  of new and

used  machine  tools   and  the   authorized  United   States

distributor for Rhodes, sold it to Robbins in 1980.  In 1980,

several  members of  the Leach  family who  were shareholders

and/or  officers of  Leach  started a  new corporation,  Main

Machinery Co., which continued in the business of selling new

and used  machine tools, including "New  Stamp-Matic" presses

manufactured  by  Rhodes.     Subsequently,  in  1982,  Leach

dissolved, a full six years before the accident.

B.  Prior Proceedings                                   

          In February  1991, Joao Carreiro,  individually and

as administrator of  the estate of  Teresa Carreiro, filed  a

                             -4-                                          4

diversity complaint for product liability  and wrongful death

in the  United  States District  Court  for the  District  of

Massachusetts against Rhodes, Leach,  Main and Rumford.  Main

impleaded  Robbins  as a  third-party  defendant  based on  a

preexisting  indemnification  agreement  between   Leach  and

Robbins.     Rhodes  failed  to  answer   the  complaint  and

defaulted.   Leach  moved to  dismiss under  Fed. R.  Civ. P.

12(b)(2) and 12(b)(6) in April 1991, asserting that it lacked

the capacity  to be  sued because dissolution  had terminated

its corporate existence.   The district court deferred ruling

on  Leach's motion to dismiss in order to permit discovery by

Carreiro on  Leach's claimed dissolution.  Meanwhile, Rumford

filed  a Rule  12(b)(6)  motion to  dismiss contending  that,

because  the  dissolved Leach  lacked  capacity  to be  sued,

Rumford could not be sued under Rhode Island's  direct action

statute.  In March 1992, Leach renewed its motion to dismiss,

submitting as  support the Rhode Island  Secretary of State's

certificate averring  that Leach  had dissolved on  March 25,

1982.   In April 1992, Rumford renewed its motion to dismiss,

again based on Leach's  dissolution.  In an August  31, 1992,

order,  the district  court,  Robert E.  Keeton, J.,  granted

Leach's and  Rumford's motions to dismiss,2  finding no basis

                                                    

2.  The district court treated Leach's motion to dismiss as a
motion for summary judgment under Fed R. Civ. P. 56 because
Leach had presented material outside the pleading.  See Fed.                                                                   
R. Civ. P. 12(b).

                             -5-                                          5

for  Carreiro's  request  for  further discovery  on  Leach's

dissolution.

          In  April 1994,  Main  moved for  summary judgment,

claiming that it was not liable as a successor corporation to

Leach.  Main and Robbins also filed cross-motions for summary

judgment  on the issue of Robbins' liability to Main based on

Robbins' agreement  to indemnify Leach.   The district court,

Richard G. Stearns, J., found that Main was not the successor

to Leach  and granted summary judgment for Main on Carreiro's

claims.  In  the same  order, Judge  Stearns granted  summary

judgment for Robbins on Main's third-party claim, ruling that

Main could not benefit  from Robbins' contractual  obligation

to indemnify  Leach because  Main was not  Leach's successor.

These appeals ensued.

                             II.                                         II.                                            

                          DISCUSSION                                      DISCUSSION                                                

          Joao  Carreiro raises  four principal  arguments on

appeal:   (1) genuine factual issues exist as to whether Main

is  liable  as  a  successor corporation  to  Leach;  (2) the

district  court erred  in not  allowing further  discovery on

whether Leach had been properly dissolved; (3) Rhode Island's

two-year  survival  period  for  claims against  a  dissolved

corporation does not preclude  this tort action against Leach

even  though  the  accident  occurred  six  years  after  its

dissolution;   and  (4) the  Rhode  Island  statute  allowing

                             -6-                                          6

certain  direct actions  against  the insurer  of a  deceased

natural  person applies as well to the insurer of a dissolved

corporation.  After setting forth the applicable standards of

review, we discuss each issue in turn.

A.  Standards of Review                                   

          1.  Summary Judgment for Main, Leach and Robbins                                                                      

          We  review a grant of  summary judgment de novo, in                                                                     

accordance  with our usual standard.   See, e.g., Crawford v.                                                                      

Lamantia, 34 F.3d 28,  31 (1st Cir. 1994), cert.  denied, 115                                                                    

S. Ct. 1393  (1995); Woods  v. Friction  Materials, Inc.,  30                                                                    

F.3d 255, 259 (1st Cir. 1994).   

          2. Rule 12(b)(6) Dismissal of Rumford                                                           

          We review a dismissal for failure to state a  claim

pursuant to Fed. R.  Civ. P. 12(b)(6) de novo,  accepting all                                                         

well-pleaded  facts  as  true  and   drawing  all  reasonable

inferences in favor of the party dismissed.  Washington Legal                                                                         

Found.  v. Massachusetts Bar  Found., 993 F.2d  962, 971 (1st                                                

Cir.  1993).   We will  not accept a  plaintiff's unsupported

conclusions  or interpretations of law.   Id.   We may affirm                                                         

the district  court's order  on any  independently sufficient

grounds.  Id.

                             -7-                                          7

          3. Denial of Discovery Request                                                    

          The trial  judge has broad discretion  in ruling on

pre-trial management matters.  Fusco v. General Motors Corp.,                                                                        

11 F.3d  259, 267  (1st  Cir. 1994).   We  review a  district

court's ruling on a  discovery request under Fed. R.  Civ. P.

56(f)  by a party opposing summary judgment for abuse of that

considerable discretion.  Price  v. General Motors Corp., 931                                                                    

F.2d 162, 164 (1st Cir. 1991). 

B.  Successor Liability of Main                                           

          1. Relevant Facts on the Summary Judgment Record                                                                      

          Viewed most  favorably to  Carreiro,  the facts  of

record3 relevant  to the successor liability  question are as

follows.  Leach sold the allegedly defective machine press to

Robbins, Carreiro's employer, in 1980.  Leach, a Rhode Island

corporation, was originally owned and operated by Harry Leach

and  his  sons Oscar  and Max.    After Harry  Leach's death,

Oscar, Max,  and  Max's son  Bruce were  the stockholders  of

                                                    

3.  Local Rule 56.1 of the United States District Court for
the District of Massachusetts requires the party moving for
summary judgment to provide a concise statement of the
material undisputed facts with citations to affidavits,
depositions, or other documentation permitted under Fed. R.
Civ. P. 56(c).  The party opposing summary judgment must
provide a concise statement of material disputed facts, also
with citations to affidavits, etc.  Properly supported facts
set forth by the moving party are deemed admitted unless
controverted by the factual statement of the opposing party. 
See generally Stepansichen v. Merchants Despatch Transp.                                                                    
Corp., 722 F.2d 922, 930 (1st Cir. 1983) (sanctioning such                 
local rules that facilitate analysis of summary judgment
motions).

                             -8-                                          8

Leach, with Oscar as President and Secretary and Max as Vice-

President and Treasurer.   Leach sold new, rebuilt,  and used

machine  tools and  various  other pieces  of production  and

metalworking equipment, some of which it manufactured.

          In March  1980, Main  was incorporated under  Rhode

Island  law  with  Max  Leach  and  his  three   children  as

stockholders.   At incorporation and  at the time this action

commenced,  Oscar  Leach  was  not  a  stockholder  of  Main,

although he was a director.  Its other officers and directors

were Max and  Bruce Leach.   Main's primary  business at  the

time of the  accident was the sale of used  machine tools and

various  pieces  of  production and  metalworking  equipment.

Unlike  Leach, it  never rebuilt  or manufactured  machinery.

Main is a  registered agent  of Rhodes and  sells the  Rhodes

"New  Stamp-Matic" press,  the  same press  that injured  Ms.

Carreiro.  Thirteen of  Main's employees are former employees

of Leach.  Main and Leach shared  the same address from 1980,

when  Main  was  incorporated,  until 1982,  when  Leach  was

dissolved, but Main always  had its own telephone  number and

letterhead.  After  Leach dissolved, its address was  in care

of  Bruce Leach.    In response  to  a discovery  request  by

Robbins, Main produced certain documents of Leach. 

          In March  1982,  Leach was  voluntarily  dissolved.

All of Leach's inventory and assets were sold,  discarded, or

otherwise disposed  of; none were acquired  by or transferred

                             -9-                                          9

to  Main.  Main acquired no shares  of Leach stock.  Main was

never a  creditor of Leach, but it may have done service work

on some machines sold by Leach.

          2. Analysis                                 

          Carreiro argues  that  genuine issues  of  material

fact precluded  summary judgment  for Main, but  Carreiro has

pointed  to  no  disputed  facts  in  either  his  memorandum                                            

opposing summary judgment or his  brief on appeal.   Instead,

he asserts  in his  brief that "[e]valuative  applications of

legal standards to the  facts are properly questions  for the

fact  finder," citing as support Springer v. Seaman, 821 F.2d                                                               

871, 876  (1st Cir. 1987)  (holding that application  of tort

concepts  of  foreseeability   and  superseding  cause   were

properly for jury).  We need not decide, however, whether the

doctrine  of corporate  successor  liability is  the sort  of

"evaluative application of a legal standard"  appropriate for

a jury.   United States v. Rule  Indus., Inc., 878 F.2d  535,                                                         

541-42  (1st Cir.  1989).   The summary judgment  record here

contains  no evidence of any transfer of assets from Leach to

Main,  which, as we explain below, is a threshold requirement

for  successor  liability  under  the  theories  advanced  by

Carreiro.  Thus,  there being  no genuine issues  of fact  in

dispute, Main was entitled to judgment as a matter of law.

          (a)  Successor Liability Generally                                                        

                             -10-                                          10

          The corporate law doctrine of "successor liability"

comprises  a set  of exceptions  to the  general rule  that a

corporation purchasing  the assets  of another is  not liable                                                                  

for the debts of the seller corporation.  The parties' briefs

rely on  Dayton v. Peck, Stow &amp; Wilcox Co., 739 F.2d 690, 692                                                      

(1st Cir. 1984) (applying Massachusetts law) to set forth the

general rule and the exceptions:

          The  general  rule  in  the  majority  of
          American     jurisdictions,     including
          Massachusetts, is that  "a company  which
          purchases the assets  of another  company
          is   not   liable  for   the   debts  and
          liabilities  of  the  transferor."    The
          general   rule   is   subject   to   four
          well-recognized   exceptions   permitting
          liability to be imposed on the purchasing
          corporation:    (1)  when the  purchasing
          corporation expressly or impliedly agreed
          to   assume  the   selling  corporation's
          liability;   (2)  when   the  transaction
          amounts to a  consolidation or merger  of
          the  purchaser  and seller  corporations;
          (3)  when  the  purchaser corporation  is
          merely  a  continuation  of   the  seller
          corporation; or (4) when  the transaction
          is  entered  into fraudulently  to escape
          liability for such obligations. 

(citations  omitted).    Carreiro  argues that  Main  is  the

successor corporation to Leach based on the second ("de facto

merger") and third ("mere continuation") exceptions.  

          Main  counters persuasively  that neither  of these

exceptions apply  because there was no sale or other transfer

of assets from Leach to Main.  Main asserts that because  the

"de  facto  merger"  and "mere  continuation"  doctrines  are

exceptions to the general  rule of non-liability following an

                             -11-                                          11

asset purchase,  they necessarily presuppose a  sale or other

transfer  of  assets  from  one corporation  to  its  alleged

successor.   We  agree.   As discussed  below, the  cases and

other  authority cited  by both parties  apply the  "de facto

merger" or  "mere continuation"  exceptions only where  there

has  been a  purchase or  other transfer  of assets;  we have

neither been  directed to nor found  any authority supporting

the  application of these  exceptions in the  absence of some

transfer of assets.  

          (b)  Rhode Island Precedent                                                 

          Several Rhode  Island  decisions have  applied  the

mere continuation exception, but  each case involved an asset

transfer.   In H.J. Baker &amp; Bro., Inc. v. Orgonics, Inc., 554                                                                    

A.2d  196, 204 (R.I. 1989), the Supreme Court of Rhode Island

stated that "[g]enerally, a company that purchases the assets

of  another is  not liable  for the  debts of  the transferor

company."    The  Baker  court,  however,  imposed  successor                                   

liability  because the corporation's assets were acquired for

nominal consideration by its president in a manner calculated

to defraud creditors.  The president used the acquired assets

to continue the same  business with the same employees.   Id.                                                                         

at 7,  9.  See also  Casey v. San-Lee Realty,  Inc., 623 A.2d                                                               

16,  19  (R.I.  1993)  (finding  mere continuation  exception

inapplicable   to   intra-family   asset  transfer   for   no

consideration in the absence of fraud); Cranston Dressed Meat                                                                         

                             -12-                                          12

Co. v. Packers Outlet Co., 190 A. 29, 31 (R.I. 1937) (finding                                     

one corporation  a  mere continuation  of  predecessor  where

successor corporation used  supplies, inventory, and cash-on-

hand of  predecessor and where court found  intent to defraud

creditors).    These  Rhode  Island  cases  apply  the  "mere

continuation"  doctrine  to  impose  successor  liability  in

certain asset transfers, an exception to the general rule set

forth  in  Baker  that  an  asset  transfer does  not  create                            

successor  liability.      Although  these   cases   do   not

specifically limit the "mere continuation" doctrine to inter-                        

corporate  asset transfers, there is  no hint, and  it is not

logical, that  the mere continuation exception  should have a

broader scope than the rule to which it relates.

          We  are aware of no opinion of the Supreme Court of

Rhode  Island  discussing  generally  the "de  facto  merger"

exception  or specifically whether  that exception applies in

the absence of an asset transfer.  

          (c)  Predicting Rhode Island Law                                                      

          "In  the  absence of  a  definitive  ruling by  the

highest state  court, a federal court  may consider analogous

decisions, considered  dicta, scholarly works, and  any other

data tending to show how the highest court in the state would

decide  the issue  at  hand, taking  into  account the  broad

policies  and  the trends  so evinced."    Gibson v.  City of                                                                         

Cranston, 37 F.3d  731, 736 (1st Cir. 1994) (quoting Michelin                                                                         

                             -13-                                          13

Tires (Canada), Ltd. v.  First Nat'l Bank, 666 F.2d  673, 682                                                     

(1st Cir. 1981)).   However, Carreiro, in choosing  a federal

rather than a  state forum, is "presumably  cognizant of this

court's statement that 'litigants who reject a state forum in

order  to  bring  suit   in  federal  court  under  diversity

jurisdiction cannot expect that  new trails will be blazed.'"

Jordan  v.  Hawker Dayton  Corp., 62  F.3d  29, 32  (1st Cir.                                            

1995)(declining  invitation to extend  successor liability to

asset purchaser  under Maine law)(quoting Ryan  v. Royal Ins.                                                                         

Co. of America, 916 F.2d 731, 744 (1st Cir. 1990)).                             

          Carreiro   cites  no   cases  or   other  authority

suggesting that the "mere  continuation" or "de facto merger"

exceptions  can apply  in the absence  of an  asset transfer.

Every case that Carreiro  does cite involved a sale  or other

transfer  of  assets from  the  original  corporation to  its

putative successor.   In  our research of  "scholarly works,"

see  Gibson, 37 F.3d at 736, we find that successor liability                       

in general, and the "mere continuation" and "de facto merger"

exceptions in particular, are  always discussed and  analyzed

in the context of inter-corporate asset transfers.  Scholarly

interest and  judicial innovation  in this area  of corporate

law have  been fueled by concern  with corporate transactions

structured  as asset purchases  to avoid successor liability,

which  exists in a statutory merger but generally does not in

an asset purchase.   Because a purchase can achieve  the same

                             -14-                                          14

economic result as a  merger when the acquirer  continues the

same business with the same assets and employees, many courts

have  reasoned  that the  same  liability  rule --  successor

liability --  should apply.  See, e.g.,  William M. Fletcher,                                                  

15 Cyclopedia  of the  Law of  Private Corporations     7122,                                                               

7123-23.05 (1990  and Supp.  1995); American Law  of Products                                                                         

Liability  3d    7:1, 7:10-13  (1987 and Supp. 1995); Phillip                         

I.  Blumberg,  The Law  of  Corporate  Groups,     13.05-05.1                                                         

(1987).   But  these treatises  and the cases  Carreiro cites

contain  no  mention  nor  even  any   hint  that  the  "mere

continuation" or  "de facto merger" doctrines  might apply in

the absence of an asset transfer. 

          Our   research  reveals  three  decisions  where  a

litigant sought to impose  successor liability in the absence

of an asset transfer;  all three hold that an  asset transfer

was an  essential prerequisite  to successor liability.   See                                                                         

Williams v. Bowman Livestock Equip  Co., 927 F.2d 1128,  1132                                                   

(9th Cir. 1991)  (without a  transfer of assets  there is  no

basis   to   impose  liability   under   "mere  continuation"

exception,  applying  Oklahoma  law); Meisel  v.  M&amp;N  Modern                                                                         

Hydraulic  Press  Co.,  645  P.2d 689,  691-92  (Wash.  1982)                                 

(transfer of assets  an essential  prerequisite to  successor

liability under  "de  facto merger"  and "mere  continuation"

theories); Evanston  Insur. Co. v.  Luko, 783  P.2d 293,  296                                                    

                             -15-                                          15

(Haw.  Ct. App. 1989) (all  exceptions to general  rule of no

successor liability presuppose a transfer of assets).

          We conclude that the  Supreme Court of Rhode Island

would  not   find  successor   liability   under  the   "mere

continuation"  or "de  facto  merger"  doctrines  absent  any

evidence  of an inter-corporate asset transfer.   Not only is

it illogical to extend the scope of an exception more broadly

than  the general  rule  to which  it  relates, but  to  hold

otherwise would  "blaze a new trail,"  which is inappropriate

for  a  federal  court  applying state  law  under  diversity

jurisdiction.  See Jordan, 62 F.3d at 32.                                     

          (d)  Applying Rhode Island Law to Leach and Main                                                                      

          The   summary   judgment   record    contains   the

uncontroverted  affidavit  of  Main's  president   Max  Leach

stating that  "Main did not  acquire any  inventory or  other

assets  from H. Leach."   At oral argument, Carreiro's lawyer

asked this court  to infer  that some assets  must have  been

transferred when Leach employees  joined Main (assets such as

hand tools, shop supplies,  pencils, and goodwill  consisting

of the Rhodes distributorship and Leach's customer base), but

nothing  in   the  summary  judgment  record   supports  that

inference.   This argument, not presented below  and made for

the first time  at oral  argument, is waived.   See  National                                                                         

Amusements, Inc. v.  Town of  Dedham, 43 F.3d  731, 749  (1st                                                

Cir.),  cert. denied,  115  S. Ct  2247 (1995)(arguments  not                                

                             -16-                                          16

presented below are waived); Frazier v. Bailey, 957 F.2d 920,                                                          

932   (1st  Cir.  1992)(arguments   not  fully  presented  in

appellate brief are waived).

          In  sum,  having concluded  that  Rhode Island  law

would  not  impose successor  liability  under  the de  facto

merger  and  mere  continuation exceptions  absent  an  asset

transfer, and finding  no evidence of  any asset transfer  on

the record, we affirm summary judgment for defendant Main.

C.  Further Discovery on Leach's Dissolution                                                        

          Carreiro appeals the district court's denial of his

request   for  additional  discovery   (after  the  discovery

deadline) that might have shown  that Leach was not dissolved

in 1982  in accordance with Rhode Island law.  To support its

motion for  summary judgment, Leach submitted  a certificate,

signed by the First Deputy Secretary of State and bearing the

state  seal, attesting  to Leach's  dissolution on  March 25,

1982.  Carreiro does not  challenge that the certificate  was

validly issued, but instead argues that the court should have

allowed  Carreiro  to   conduct  further  discovery   seeking

unspecified evidence that Leach  had somehow failed to comply

with  the  statutory  requirements for  dissolution.    Rhode

Island law provides  that a certificate  of the secretary  of

state "shall be  taken and  received in all  courts . . .  as

prima facie evidence of the existence or non-existence of the                       

facts  stated therein."  R.I. Gen. Laws   7-1.1-134.  Because

                             -17-                                          17

Leach submitted the  certificate, the district court  treated

Leach's renewed  motion to  dismiss as a  motion for  summary

judgment.   See  Fed. R.  Civ. P.  12(b).   A party  opposing                           

summary judgment may have  additional discovery under Fed. R.

Civ.  P. 56(f)  where it  cannot present  essential facts  by

affidavit, but  the party must "articulate  a plausible basis

for the belief that  discoverable materials exist which would

raise a trialworthy issue."   Price v. General Motors  Corp.,                                                                        

931  F.2d 162, 164 (1st Cir. 1991).  Carreiro neither pointed

to any evidence nor made any  specific allegations that Leach

failed to  comply with the requirements  for dissolution, and

accordingly  the  district  court's denial  of  the requested

discovery was well within its discretion.     

D.  Survival of Actions Against a Dissolved Corporation                                                                   

          According  to  R.I. Gen  Laws    7-1.1-98, entitled

"Survival of remedy  after dissolution," a claimant may sue a

dissolved corporation  for "any  right or claim  existing, or

any liability incurred, prior to the dissolution if action or

other proceeding  thereon is  commenced within two  (2) years

after the date of dissolution."  Leach's dissolution in March

1982 was certified by the Rhode Island Secretary of State and

is uncontroverted  on the summary judgment  record.  Carreiro

argues that  his suit  can be  brought against  the dissolved

Leach  well after  the two-year  survival period  because the

liability  was  not  incurred  "prior  to  dissolution,"  and

                             -18-                                          18

therefore  does  not fall  within  the literal  scope  of the

statute.

          Although  there   is  no  Rhode   Island  case  law

discussing   the  survival  of  claims  against  a  dissolved

corporation  under  section  7-1.1-98, the  Supreme  Court of

Rhode Island interpreted  the analogous Massachusetts statute

in Halliwell Assocs.,  Inc. v. C.E. Maguire Servs., Inc., 586                                                                    

A.2d 530 (R.I. 1991).  The court explained that at common law

"a corporation's  capacity to sue  or be sued  was completely

destroyed upon dissolution."   Id. at 533.  The  court added:                                              

"Today,  all  jurisdictions  have enacted  corporate-survival

statutes  that abrogate  the harsh  effect of  the common-law

rule by  allowing a  corporation's existence to  continue for

some  time  past  the  date  of  dissolution  to  settle  its

corporate  affairs  gradually,   but  not  to  continue   its

business."   Id.   Rhode  Island has  enacted exactly  such a                            

statute,  section 7-1.1-98,  and the  Supreme Court  of Rhode

Island's explanation  of the  background common law  rule and

the intent behind the  typical survival statute is persuasive

authority  as to the proper interpretation of R.I. Gen. Law  

7-1.1-98.   See supra  section II.B.2.(c) (discussing  use of                                 

other  authority in  the  absence  of  a holding  by  state's

highest court).

          In  light of  the Supreme  Court of  Rhode Island's

explanation  of  the legislative  intent  behind the  typical

                             -19-                                          19

survival statute,  the language at issue  in section 7-1.1-98

(providing  a two-year survival  period only  for liabilities

incurred "prior to dissolution") logically means that actions

on liabilities  incurred after dissolution do  not survive at                                          

all, not  even for the  two-year wind-up period.   Carreiro's

argument   that  actions   on   liabilities  incurred   after

dissolution  survive forever  is  untenable in  light of  the

common  law  rule  and  the legislative  intent  to  create a

limited  wind-up  period.    We conclude  that  Leach,  whose

dissolution in 1982 is uncontroverted on the summary judgment

record,  is not amenable to  a suit brought  almost ten years

after its dissolution and eight years after the expiration of

the  two-year survival  period.   Accordingly, we  affirm the

district court's grant of summary judgment for Leach.

E.  Direct Action Against Insurer of Dissolved Corporation                                                                      

          The  district court  granted  Rumford's  motion  to

dismiss  under Fed.  R. Civ.  P. 12(b)(6),  having determined

that  R.I. Gen. Laws   27-7-2 does not permit a direct action

against the insurer  of a  dissolved corporation.   We  agree

with the district court's analysis and ruling.

          Section  27-7-2  generally  bars a  plaintiff  from

joining  an  insurer as  a defendant  in  a suit  against the

insured, a so-called  "direct action."  An  exception to that

bar  applies "where before suit has  been brought and probate

                             -20-                                          20

proceedings have  not been initiated the  insured has died."4

R.I. Gen. Laws    27-7-2.  Carreiro argues that  Leach "died"

when  it  dissolved  in  1982, and  therefore  the  foregoing

exception applies.

          Carreiro's suggested interpretation of  section 27-

2-2 is unpersuasive.  Although the statute's language  is not

without difficulty, the Rhode Island Supreme Court has stated

that section 27-7-2 is "free  from ambiguity and expresses  a

plain  and sensible  meaning" and  "the meaning  so expressed

will be conclusively presumed  to be the one intended  by the

Legislature."   Chalou v. LaPierre, 443 A.2d 1241, 1241 (R.I.                                              

1982).   The plain and  sensible meaning of  the statute does

not  authorize  direct  actions  against  the  insurer  of  a

dissolved corporation for the following reasons.

          First,  the  plain and  sensible meaning  of "died"

does  not  embrace  the  dissolution of  a  corporation,  and

Carreiro points to  no Rhode Island authority supporting such

an interpretation.

          Second,  the  legislature  surely  understood  that

corporations do not enter  probate proceedings; this strongly

                                                    

4.  The syntax of the statute is rather convoluted.  Contrary
to what the statute suggests, we believe that probate
proceedings in Rhode Island are never initiated before death. 
The Rhode Island Supreme Court has given this provision its
only logical meaning - that "where probate proceedings have
been initiated before suit is brought, the plaintiff may not
proceed directly against the insurer."  Markham v. Allstate                                                                       
Ins. Co., 352 A.2d 651, 653 (R.I. 1976).                    

                             -21-                                          21

implies that it  did not  intend to apply  this exception  to

corporations.   Furthermore, the  statute provides  that once

probate has been initiated, direct action against the insurer

of a deceased  natural person  is no longer  available.   See                                                                         

Markham  v. Allstate Ins. Co., 352 A.2d 651, 653 (R.I. 1976).                                         

Thus, the legislature intended  this exception to the general

rule  barring direct  action to  apply only  during  the time

between  the  death  of  the insured  and  the  initiation of

probate.  If we accept Carreiro's interpretation, there would

be  no  analogous temporal  limitation  on  the exception  as

applied to  a dissolved  corporation since probate  cannot be

initiated.   Under  that  view an  insurer  would be  forever

amenable  to direct action, and there is no reason to believe

that the legislature intended such a result.

          Third,  Carreiro's  proposed interpretation  of the

statute would increase the insurer's liability beyond that of

the  insured.   The  Supreme Court  of  Rhode Island  held in

Barber  v. Canela, 570 A.2d 670 (R.I. 1990), that section 27-                             

7-2 did not enlarge  the liability of the insurer  beyond the

limits  stated in the  policy.   It set  forth as  a "general

rule"  that any rights of a plaintiff against the insurer are

"dependent upon the existence of liability of the insurer  to

the insured under  the contract  of insurance."   Id. at  671                                                                 

(quoting George  J. Couch, et  al., 12A  Couch Cyclopedia  of                                                                         

Insurance Law  2d   45:833 at  486 (1981)).  A  direct action                             

                             -22-                                          22

here,  where the  insured  cannot be  sued  because it  is  a

dissolved corporation, would contravene  that rule.  It would

be  unreasonable  for  us  to reach  that  result  through  a

tortured  interpretation of the statute and without precedent

under Rhode Island law.

          In light  of the foregoing, we  find it unnecessary

to  certify this  statutory  interpretation  question to  the

Supreme  Court of Rhode  Island as  Carreiro urges.   Because

section 27-7-2 generally prohibits direct actions against the

insurer of a potentially liable party and because we conclude

that  Carreiro's  suit  does  not fit  within  the  statutory

exceptions to  that prohibition,  we affirm the  dismissal of

Rumford. 

F.  Main's Indemnification Claim Against Robbins                                                            

          Because  we  affirm the  district court's  grant of

summary judgment  in favor  of Main on  Carreiro's complaint,

Main's    appeal   seeking   to    revive   its   third-party

indemnification claim against Robbins is moot.

                             IV.                                         IV.                                            

                          CONCLUSION                                      CONCLUSION                                                

          For  the foregoing  reasons, the  decisions of  the

district court are affirmed.                               affirmed                                       

                             -23-                                          23
