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SJC-12544

 JUNE STEARNS, coexecutrix,1 & another2 vs. METROPOLITAN LIFE
                  INSURANCE COMPANY & others.3



          Suffolk.     December 4, 2018. - March 1, 2019.

  Present:   Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
                                JJ.


Asbestos. Repose, Statute of. Negligence, Statute of repose.
     Practice, Civil, Claim barred by statute of repose.



     Certification of a question of law to the Supreme Judicial
Court by the United States District Court for the District of
Massachusetts.

    1   Of the estate of Wayne Oliver.

    2   Clifford Oliver, coexecutor of the estate of Wayne Oliver.

    3  Foster Wheeler Energy Corporation; Aurora Pump Co.; Crane
Co.; Ingersoll-Rand Company; Marotta Controls, Inc.; The Nash
Engineering Company; Weir Valve & Controls USA, Inc., formerly
known as Atwood & Morrill Co., Inc.; Viking Pump, Inc.; Warren
Pumps, LLC; General Electric Company; IMO Industries, Inc.,
formerly known as Delaval Steam Turbine Company; NSTAR Electric,
formerly known as Boston Edison Company; New England Insulation
Company; O'Connor Constructors, Inc., formerly known as Thomas
O'Connor Company, Inc.; Flowserve Corporation, formerly known as
Byron Jackson Company; and Velan Valve Corp.

     General Electric Company (GE) is the only defendant
involved with the questions certified to this court.
                                                                    2




     John A. Heller, of Illinois (Catherine A. Mohan & Benjamin
M. Greene also present) for General Electric Company.
     Michael J. McCann (Michael C. Shepard, Lisa M. Conserve, &
Erika A. O'Donnell also present) for the plaintiffs.
     John R. Felice & Brad W. Graham for Massachusetts Defense
Lawyers Association, amicus curiae, were present but did not
argue.
     The following submitted briefs for amici curiae:
     Lawrence G. Cetrulo, Stephen T. Armato, Whitney K. Barrows,
Elizabeth S. Dillon, Lauren K. Camire, & Brian D. Fishman for
Massachusetts Asbestos Litigation Defendants' Liaison Counsel.
     Thomas R. Murphy, Kevin J. Powers, & John G. Mateus for
Massachusetts Academy of Trial Attorneys.


     CYPHER, J.   In this case we are called on to answer a

certified question from the United States District Court for the

District of Massachusetts concerning whether the six-year

statute of repose set forth in G. L. c. 260, § 2B (§ 2B),

operates to bar tort claims arising from diseases with extended

latency periods, such as those associated with asbestos

exposure, where the defendants had knowing control of the

injurious instrumentality at the time of exposure.4   We answer

the question in the affirmative.   Consistent with our precedent,

we conclude that § 2B completely eliminates all tort claims

arising out of any deficiency or neglect in the design,

planning, construction, or general administration of an


     4 We acknowledge the amicus curiae briefs submitted by the
Massachusetts Defense Lawyers Association and Coalition for
Litigation Justice, Inc.; Massachusetts Asbestos Litigation
Defendants' Liaison Counsel and Coalition for Litigation
Justice, Inc.; and Massachusetts Academy of Trial Attorneys.
                                                                    3


improvement to real property after the established time period

has run, even if the cause of action arises from a disease with

an extended latency period and even if a defendant had knowing

control of the instrumentality of injury at the time of

exposure.   In so doing, we recognize that, considering the

latency period for asbestos-related illnesses, this will have

the regrettable effect of barring all or nearly all tort claims

arising from negligence in the use or handling of asbestos in

construction-related suits.   Nonetheless, the appropriate

recourse is in the Legislature, not this court.

     Background.   Because our task is limited to responding to

the certified question, we do not delve deeply into the factual

complexities of this case.5   The underlying action concerns the

death of Wayne Oliver, who died in 2016 of mesothelioma after

exposure to asbestos during the construction of two nuclear

power plants in the 1970s.    Relevant to the issue at hand,

defendant General Electric Company (GE) designed, manufactured,

and sold steam turbine generators for installation at each of

the plants and supervised the installations.    GE's installation

specifications called for the use of asbestos-containing

insulation materials.   Oliver, who worked as a pipe inspector

for a nonparty, was present while the insulation was cut, mixed,


     5 We take our facts as the Federal District Court judge
found them.
                                                                     4


and applied to certain piping systems and equipment in the

turbine halls of both plants, exposing him to the toxic asbestos

particles within.

     Oliver came into contact with the tainted insulation

between 1971 and 1978,6 received his malignant mesothelioma

diagnosis in April 2015, and commenced the underlying action in

the Superior Court in August 2015.   He alleged, among other

things, that GE had negligently exposed him to asbestos during

the construction of the two power plants and caused him to

contract mesothelioma.   Thereafter, the case was removed to the

Federal District Court and, when Oliver passed away in July

2016, that court allowed the plaintiffs, as coexecutors of

Oliver's estate, to submit an amended complaint and continue the

litigation.

     GE moved for summary judgment on the ground that the

plaintiffs' claims against it were barred by § 2B, which sets a

firm six-year time limit for tort actions arising out of any

deficiency or neglect in the design, planning, construction, or

general administration of an improvement to real property.     The

plaintiffs disputed that § 2B was intended to apply to cases

involving diseases with extended latency periods because it




     6 The plants opened commercial operations in 1972 and 1975,
respectively.
                                                                   5


otherwise would have the effect of extinguishing meritorious

claims before they even come into existence.

    The judge found that GE's turbine generators, including

their insulation materials, were "indisputably" improvements to

real property under the statute.   Notwithstanding this finding,

she denied GE's motion as to Oliver's claims arising from the

alleged asbestos exposure because it was "not at all clear" that

the statute was designed to bar a category of claims "known

uniformly to have a latency period of at least twenty years,"

particularly where "GE had control of the site at the time of

Oliver's asbestos exposure, conducted regular on-site

maintenance and inspections for at least two decades after

construction was complete, and continues . . . to perform

[routine] refueling outages", removing it from the category of

defendants customarily protected by the statute.   GE

subsequently moved for the judge either to reconsider her

decision or certify the ruling for an interlocutory appeal to

the United States Court of Appeals.   The plaintiffs opposed

interlocutory appeal but, in the event of any such appeal, moved

instead for certification to this court pursuant to S.J.C. Rule

1:03, as appearing in 382 Mass. 700 (1981).    The judge denied

GE's motion and certified to us the following question:

    "whether or not the Massachusetts statute of repose, [G. L.
    c.] 260, § 2B, can be applied to bar personal injury claims
    arising from diseases with extended latency periods, such
                                                                     6


    as those associated with asbestos exposure, where
    defendants had knowing control of the instrumentality of
    injury at the time of exposure."

We conclude that the answer to the reported question is

controlled by the language of § 2B, the history of this and

related statutes of repose, and our previous cases.

    Discussion.     We interpret a statute according to the intent

of the Legislature, which we ascertain from all its words,

"construed by the ordinary and approved usage of the language"

and "considered in connection with the cause of its enactment,

the mischief or imperfection to be remedied and the main object

to be accomplished" (citation omitted).    Harvard Crimson, Inc.

v. President & Fellows of Harvard College, 445 Mass. 745, 749

(2006).    See generally G. L. c. 4, § 6, Third.   Where, as here,

the language is clear and unambiguous, it is conclusive as to

the Legislature's intent.    Sharris v. Commonwealth, 480 Mass.

586, 594 (2018).

    It is well established that a statute of repose "eliminates

a cause of action at a specified time, regardless of whether an

injury has occurred or a cause of action has accrued as of that

date."    Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349, 352

(2018).   See Sisson v. Lhowe, 460 Mass. 705, 709 (2011) (statute

of repose focuses on date defendant's negligent acts or

omissions were alleged to have occurred regardless of whether

cause of action has accrued or whether any injury has resulted
                                                                   7


[quotations and citation omitted]); Joslyn v. Chang, 445 Mass.

344, 347 (2005) (same).   It places "an absolute time limit on

the liability of those within its protection" and "abolish[es] a

plaintiff's cause of action thereafter, even if the plaintiff's

injury does not occur, or is not discovered, until after the

statute's time limit has expired."   Bridgwood, supra at 353,

quoting Nett v. Bellucci, 437 Mass. 630, 635 (2002).   See

Black's Law Dictionary 1637 (10th ed. 2014) (defining statute of

repose as "[a] statute barring any suit that is brought after a

specified time since the defendant acted [such as by designing

or manufacturing a product], even if this period ends before the

plaintiff has suffered a resulting injury").   The effect is to

"abolish the remedy . . . not merely to bar the action."     Tindol

v. Boston Hous. Auth., 396 Mass. 515, 518 (1986).   See

Bridgwood, supra at 352 (statutes of repose provide substantive

right to be free from liability after given period of time has

elapsed from defined event).

    In stark contrast to statutes of limitation, "statutes of

repose may not be 'tolled' for any reason" (emphasis added).

Nett, 437 Mass. at 635.   See, e.g., Rudenauer v. Zafiropoulos,

445 Mass. 353, 358 (2005) (medical malpractice statute of repose

not subject to tolling, even where medical treatment is

ongoing); Joslyn, 445 Mass. at 350-351 (statute of repose not

subject to any form of equitable estoppel or tolling, even in
                                                                     8


instances of fraudulent concealment);    Sullivan v. Iantosca, 409

Mass. 796, 798-799 (1991) (statute of repose bars action even if

knowing and intentional wrongdoing is involved); Tindol, 396

Mass. at 517-518 (statute of repose is not tolled by minority or

mental illness).    Indeed, "[t]he only way to satisfy the

absolute time limit of a statute of repose is to commence the

action prior to the expiration of that time limit" (emphasis

added; quotations and citation omitted).    Nett, 437 Mass. at

635.    See Sisson, 460 Mass. at 716.   We previously concluded,

and do so again, that § 2B is no exception to these rules.

Bridgwood, 480 Mass. at 353 (§ 2B protects contractors from

claims arising long after completion of work); Aldrich v. ADD

Inc., 437 Mass. 213, 221 (2002), quoting Klein v. Catalano, 386

Mass. 701, 702 (1982) ("Simply put, after six years, [§ 2B]

completely eliminates a cause of action against certain persons

in the construction industry").

       The statute provides in relevant part:

       "Action[s] 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."
                                                                   9


We recently had occasion to discuss both the language of and the

legislative purpose behind the enactment of § 2B in Bridgwood,

480 Mass. at 351-358.   In that case, we reiterated that the

Legislature's primary objective in enacting § 2B was to limit

the liability of architects, engineers, contractors, and others

involved in the design, planning, construction, or general

administration of an improvement to real property in the wake of

case law abolishing the long-standing rule that once an

architect or builder had completed his work and it had been

accepted by the owner, absent privity with the owner, liability

was cut off as a matter of law.   Id. at 353, discussing Klein,

386 Mass. at 708-709.   The abolition of that rule exposed many

participants in the construction industry "to possible liability

throughout their professional lives and into retirement,"

liability that the Legislature sought to curtail with the

enactment of § 2B.   Klein, 386 Mass. at 708-709.   "Otherwise,

those engaged in the design and construction of real property

may have to mount a defense when architectural plans may have

been discarded, copies of building codes in force at the time of

construction may no longer be in existence, persons individually

involved in the construction project may be deceased or may not

be located"7   (quotations and citation omitted).   Id. at 709–710.


     7 Suppliers and manufacturers are not included in the class
of persons protected from suit under G. L. c. 260, § 2B (§ 2B).
                                                                  10


See Joslyn, 445 Mass. at 351 ("The object of a statute of repose

. . . is to suppress fraudulent and stale claims from springing

up at great distances of time, and surprising the parties, or

their representatives, when all the proper vouchers and

evidences are lost, or the facts have become obscure, from the

lapse of time, or the defective memory, or death, or removal of

witnesses" [quotation and citation omitted]).

    We have held that limiting the duration of liability in

this way serves a legitimate public purpose, even though it may

abolish a plaintiff's cause of action without providing any

alternative remedy.   Bridgwood, supra at 353.   See Klein, 386

Mass. at 712 n.16 (Legislature may enact statute that abolishes

common-law cause of action without providing substitute remedy

if statute is rationally related to permissible legislative

objective).   And we have concluded that "[i]n establishing the

six-year limit, the Legislature struck what it considered to be

a reasonable balance between the public's right to a remedy and

the need to place an outer limit on the tort liability of those



McDonough v. Marr Scaffolding Co., 412 Mass. 636, 641 (1992).
See Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 694 n.10,
cert. denied, 484 U.S. 953 (1987) ("It is clear from the
language of the statute, and our decisions, that § 2B does not
apply to materialmen and suppliers. Any ambiguity that may
arise in the application of § 2B arises only from the question
whether a party acted as a materialman or supplier . . . .").
In addition, Massachusetts has not limited products liability
actions with a statute of repose. Cosme v. Whitin Mach. Works,
Inc., 417 Mass. 643, 648 (1994).
                                                                   11


involved in construction."   Klein, supra at 710.   See Aldrich,

437 Mass. at 221.   The plaintiffs' case is no exception.

    The plaintiffs contend that § 2B does not shield a

defendant that was in control of the improvement to real

property at the time of the incident giving rise to the cause of

action, nor does it apply to diseases with extended latency

periods, such as those associated with asbestos exposure.     We do

not agree.

    The language of § 2B is unequivocal.     It provides that "in

no event shall [an action of tort for damages covered herein] be

commenced more than six years" after the earlier of two

specified dates:    "(1) the opening of the improvement to use; or

(2) the substantial completion of the improvement and the taking

of possession . . . by the owner" (emphasis added).   The

apparent intent of the Legislature was to place an absolute time

limit on the liability of those protected by the statute.

Bridgwood, 480 Mass. at 352-353.   Indeed, it "forbids us from

considering the fact that a plaintiff did not discover or

reasonably could not have discovered the harm before the six-

year period of the statute of repose expired," or any other

circumstances that might have tolled the running of a statute of

limitations.   Sullivan, 409 Mass. at 798.   See id. at 798-799

(as § 2B is written, it makes no difference whether defendant

caused deficiency or neglect "by gross negligence, wanton
                                                                   12


conduct, or even knowing and intentional wrongdoing").    The

plaintiffs are requesting that we imply exceptions to § 2B where

there are none.    We decline to do so.   The "Legislature has

fashioned an ironclad rule," Joslyn, 445 Mass. at 351, and we

will not read into it any exception that the Legislature did not

see fit to put there, whether by inadvertence or design.

Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014).

See Tze-Kit Mui v. Massachusetts Port Auth., 478 Mass. 710, 712

(2018) ("ordinarily we will not add language to a statute where

the Legislature itself has not done so"), citing Dartt v.

Browning–Ferris Indus., Inc. (Mass.), 427 Mass. 1, 9 (1998)

(court will not add language to statute that Legislature could

have, but did not, include).    Accord District Att'y for the

Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 633

(1985), quoting 2A C. Sands, Sutherland Statutory Construction

§ 47.11 (4th ed. 1984) (exceptions to statutes "are not to be

implied").   Accord Porter v. Nowak, 157 F.2d 824, 825 (1st Cir.

1946), quoting United States v. Goldenberg, 168 U.S. 95, 103

(1897) ("No mere omission, no mere failure to provide for

contingencies, which it may seem wise to have specifically

provided for, justify any judicial addition to the language of

the statute").    "Had the Legislature intended to remove this

shield and expose contractors to indefinite liability for claims
                                                                 13


arising long after the completion of their work, it would have

said so explicitly."   Bridgwood, 480 Mass. at 357–358.8

    Our conclusion is bolstered by the fact that the

Legislature has expressly provided for an exception in another,

similar statute of repose.   See G. L. c. 260, § 4 (statute of

repose applicable to medical malpractice actions excludes

actions arising from foreign object left in body); Joslyn, 445

Mass. at 350 ("the Legislature allowed only one exception to the

statute of repose, that pertaining to actions arising from a

foreign object left in the body").   The fact that the


    8  The plaintiffs argue, relying on Klein v. Catalano, 386
Mass. 701, 717 (1982), that GE is not protected by § 2B because
it was in "control" of the improvement to real property at the
time Wayne Oliver was exposed to the asbestos-tainted
insulation. We are not persuaded. In Klein, we noted that the
Legislature could have reasonably concluded that it was
appropriate to place different time limits on the liability of
builders and other design professionals "from those placed on
persons in possession or control as owner, tenant, or otherwise"
because "[a]fter . . . acceptance of the work by the owner,
there exists the possibility of neglect, abuse, poor
maintenance, mishandling, improper modification, or unskilled
repair of an improvement to immovable property by the owner,
lessor or tenant," which could result in an injury that could
not be prevented by the builder or design professional. Id. at
715-716. We noted also that the Legislature could have
reasonably concluded that "[a] limit on liability may be
necessary to encourage those professionals to experiment with
new designs and materials." Id. at 717. We did not, and do
not, suggest that the degree of control over the improvement at
the time of the alleged negligence should weigh on the
consideration of whether a builder or other design professional
is covered by the statute. Indeed, it would seem that in every
case the defendant would have some degree of control over the
improvement for its actions to give rise to a viable claim of
deficiency or negligence.
                                                                   14


Legislature saw fit to specify an exception to the statute of

repose applicable to medical malpractice actions and did not

similarly do so in the circumstances of this case strengthens

the inference that no exceptions were intended here.    Joslyn,

445 Mass. at 350.    See Fernandes, 470 Mass. at 129 ("The

omission of particular language from a statute is deemed

deliberate where the Legislature included such omitted language

in related or similar statutes").

     Moreover, had the Legislature wanted to exempt claims

arising from negligence involving asbestos from § 2B

specifically, it has demonstrated that it knows how to do so.

In G. L. c. 260, § 2D, the so-called asbestos revival statute,

see Commonwealth v. Owens-Corning Fiberglas Corp., 38 Mass. App.

Ct. 600, 603 (1995), the Legislature established special time

periods during which the Commonwealth and its subdivisions could

bring an action, otherwise time-barred by § 2B, to recover the

cost of asbestos removal from public buildings.9   See Boston v.

Keene Corp., 406 Mass. 301, 303 (1989) (Keene); Owens-Corning


     9   General laws c. 260, § 2D, provides:

     "Any action brought by . . . the [C]ommonwealth or any
     other political subdivision thereof to recover any costs
     associated with asbestos related corrective actions . . .
     shall be commenced only within six years next after . . .
     the [C]ommonwealth or any other political subdivision
     thereof knew of the presence of and the hazard or damage
     caused by the presence of such asbestos or material
     containing asbestos within its buildings."
                                                                    15


Fiberglas Corp., 38 Mass. App. Ct. at 603-604.    The effect of

the legislation was, among other things, to revive asbestos

claims on which the statute of repose period set forth in § 2B

had already run.   Id. at 603.   That the Legislature excepted the

Commonwealth from the ambit of § 2B, if only in limited

circumstances and for only a limited time, and did not similarly

except private plaintiffs in those or any circumstances,

reinforces our conclusion that the Legislature did not intend to

establish an exception here.     Moreover, we noted in Keene that

in declining to provide a similar benefit to private plaintiffs,

the Legislature "could well have concluded that the asbestos

problem was most acute in public buildings, and thus decided to

address that aspect of the crisis first."    Keene, 406 Mass. at

309.   If the Legislature sees fit to likewise afford relief to

private plaintiffs, now or in the future, then it is the

Legislature's exclusive prerogative to do so.    Joslyn, 445 Mass.

at 352 ("No exceptions ought to be made [to a statute of

repose], unless they are found therein; and if there are any

inconveniences or hardships growing out of such a construction,

it is for the [L]egislature, which is fully competent for that

purpose, and not for the court, to apply the proper remedy").

See Keene, supra, quoting Mobil Oil Corp. v. Attorney Gen., 361

Mass. 401, 417 (1972) ("When legislative authority is exerted

within a proper area, it need not embrace every conceivable
                                                                    16


problem within that field.    The Legislature may proceed one step

at a time, addressing itself to the phase of the problem which

seems most acute to the legislative mind").

    "As we have stated previously, we recognize that statutes

of repose 'may impose great hardship on a plaintiff who has

suffered injury and has a meritorious claim' but who does not

suffer or discover the injury within the period permitted for

initiation of suit."   Joslyn, 445 Mass. at 351, quoting Klein,

386 Mass. at 713.   Notwithstanding this harsh reality, we do not

interpret statutes based on such concerns.     See Bridgwood, 480

Mass. at 353 ("Since deciding Klein, we have consistently

enforced statutes of repose according to their plain terms,

despite the hardship they may impose on plaintiffs"); Klein,

supra ("In upholding [§ 2B], we realize that in some cases this

statute may impose great hardship on a plaintiff who has

suffered injury and has a meritorious claim.    However,

'arguments as to hardship . . . are appropriate respecting the

enactment of legislation.    They are not controlling in the

interpretation of existing statutes.'" [citation omitted]).

Accord Joslyn, supra at 351-352, quoting Zayre Corp. v. Attorney

Gen., 372 Mass. 423, 433 (1977) (principle of judicial restraint

includes recognition of inability and undesirability of

judiciary substituting its notions of correct policy for that of

popularly elected Legislature); Keene, 406 Mass. at 305 ("The
                                                                   17


sole issue is whether the statute falls within the legislative

power to enact, not whether it comports with a court's idea of

wise or efficient legislation").

      Although the six-year time limit "is in some manner

arbitrary," it is the Legislature's task to draw the line, not

ours (citation omitted).    Joslyn, 445 Mass. at 351.   See

Rudenauer, 445 Mass. at 359 (court will not undo Legislature's

"studied determination").    Our obligation is to adhere to the

terms of the statute "and not, upon imaginary equitable

considerations, to escape from the positive declarations of the

text" (citation omitted).    Joslyn, supra at 352.   If doing so

results in any "inconveniences or hardships," then it is for the

Legislature, not for the court, to resolve10 (citation omitted).

Id.

      Conclusion.   We answer the certified question as follows:

Section 2B completely eliminates all tort claims arising out of

any deficiency or neglect in the design, planning, construction,

or general administration of an improvement to real property

after the established time period has run, even if the cause of

action arises from a disease with an extended latency period and



       The plaintiffs point out that a number of other State
      10

Legislatures have effectively exempted asbestos-related
illnesses from their respective statutes of repose concerning
improvements to real property. We encourage our Legislature to
consider doing the same should it determine that such an
exception is consonant with the Commonwealth's public policy.
                                                                  18


even if a defendant had knowing control of the instrumentality

of injury at the time of exposure.

    The Reporter of Decisions is to furnish attested copies of

this opinion to the clerk of this court.   The clerk in turn will

transmit one copy, under the seal of the court, to the clerk of

the United States District Court for the District of

Massachusetts, as the answer to the question certified, and will

also transmit a copy to each party.
