
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1489                                 DAVID SNOW, ET AL.,                               Plaintiffs, Appellants,                                          v.                              HARNISCHFEGER CORPORATION,                                 Defendant, Appellee.                                 ____________________                     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.        __________________________            David  M. Rogers  with whom  Richard P.  Campbell and  Campbell  &            ________________             ____________________      ___________        Associates, P.C. were on brief for appellee.        ________________                                 ____________________                                  December 29, 1993                                 ____________________        _____________________        *Of the District of New Hampshire, sitting by designation.                       DiClerico, District Judge.  Plaintiffs David Snow,                       DiClerico, District Judge.                                  ______________             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.                                          I                                          I                                          _                                      BACKGROUND                                      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.1  The cranes  are used                                              ____________________             1Harnischfeger 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.                                           -2-                                          2             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 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.2             Harnischfeger  removed  the  action to  the  district  court             pursuant to 28 U.S.C.   1446, and moved for summary judgment                                              ____________________             2In their amended complaint, the Snows charge  Harnischfeger             with  defective  design,   negligence,  breach  of   express             warranty   and   breach   of   the   implied   warranty   of             merchantability.                                           -3-                                          3             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) substantial                       completion  of the  improvement and  the                       taking  of possession  for occupancy  by                       the owner.3              Id.4   The district  court found Harnischfeger  was included             ___             in  the class  of  actors protected  under  the statute  and             granted the summary judgment motion.5                                              ____________________             3Massachusetts 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.2d 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).             4M.G.L. c. 260,   2B was last revised in 1984.  Id.                                                             ___             5The  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.                                         -4-                                          4                       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").                                          II                                          II                                          __                                      DISCUSSION                                      DISCUSSION                                      __________             Standard of Review             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  (1st Cir.             _______________________________             1993) (citing Vanhaaren v.  State Farm Mut. Auto.  Ins. Co.,                           _____________________________________________             989 F.2d 1, 3 (1st Cir.  1993); High Voltage Eng'g Corp.  v.                                             ____________________________             Federal Ins. Co., 981 F.2d 596, 598 (1st Cir. 1992); Pedraza             ________________                                     _______             v.  Shell Oil Co.,  942 F.2d 48,  50 (1st Cir.  1991), cert.             _________________                                      _____             denied, ___ U.S.  ___, 112 S. Ct.  993 (1992).  The  role of             ______             summary  judgment is  "to  pierce  the  boilerplate  of  the                                         -5-                                          5             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  (1st 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 (1st 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 (1st Cir. 1991) (quoting Griggs-Ryan             ___                                              ___________             v. Smith, 904 F.2d 112,  115 (1st Cir. 1990)), cert. denied,             ________                                       ____________             ___  U.S. ___,  112 S.  Ct.  2965 (1992);  Caputo v.  Boston                                                        _________________             Edison Co.,  924 F.2d  11,  13 (1st  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 showing there  is a genuine  issue for                                         -6-                                          6             trial."  Anderson v. Liberty  Lobby, Inc., 477 U.S. 242, 250                      ________________________________             (1986) (citing Fed. R. Civ. P. 56(e)).                         Issues of Fact             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.6   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                                              ____________________             6The 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.                                         -7-                                          7             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  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,                                  _____________________                                         -8-                                          8             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.                         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                                         -9-                                          9             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                               ______                                         -10-                                          10             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  is 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  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                                         -11-                                          11             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.   Id.   Thus,  the crane's  status as  a                                   ___             permanent fixture is immaterial to our inquiry.               Harnischfeger as a Protected Actor             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    `individual   expertise'"    who   "render             particularized services  for the design  and construction of             particular  improvements   to  particular  pieces   of  real                                         -12-                                          12             property."   Id.   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,             planning,  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  include   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.                                         -13-                                          13             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.7  See Dighton, 506 N.E.2d at 516.                             ___ _______                       In  Dighton, the defendant  did not claim  to have                           _______             provided  particularized   services  with  respect   to  the             improvement  -- the  building  --  but  rather  claimed  the                                              ____________________             7The 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 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  an activities             ___             analysis when the defendant's status as a protected actor is             unclear.  See id.                       _______                                         -14-                                          14             benefit  of  the  statute as  a  designer,  manufacturer and             supplier   of  a   component  that  fell   within  Webster's             definition of improvement.8   Id. 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.                       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.9   Id.   If the actor  designed the improvement                             ___                                              ____________________             8This  definition has  been  adopted by  the  SJC where  the             defendant's status as  a protected  actor is  not in  doubt.             Id. at 516.             ___             9The 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                                         -15-                                          15             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.                                                                  ___                       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                                              ____________________                       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).             _______                                         -16-                                          16             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.10               _______                       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.                                              ____________________             10As 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.                                         -17-                                          17             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                        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              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  manu-facturer  of a                       manually operated  overhead crane,  is a                                         -18-                                          18                       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                                                              _______             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."11   Plaintiffs-             Appellants' 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             in a 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,                                               _________________________                                              ____________________             11The  Snows also acknowledged the dispositive nature of the             case law at a hearing before the district court.                                         -19-                                          19             556  N.E.2d 1009,  1011  (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 affixed  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.             _________                                         -20-                                          20
