
USCA1 Opinion

	




                            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 & Epstein  was on brief               ________________            __________________          for Joao Carreiro.               Judith  A. Perritano with whom  Joel F. Pierce and Morrison,               ____________________            ______________     _________          Mahoney & Miller were on brief for Main Machinery Company  and H.          ________________          Leach Machinery Company.                Robert D. Fine with whom Licht  & 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 & 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 & 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 & 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&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
