Dighton v. Federal Pacific Elec. Co.

• Decision Date: 21 April 1987
• Citation: 506 N.E.2d 509,399 Mass. 687
• Parties: , 55 USLW 2656, Prod.Liab.Rep. (CCH) P 11,393 Patricia DIGHTON et al. 1 v. FEDERAL PACIFIC ELECTRIC COMPANY; Sert, Jackson & Associates, Incorporated & others, 2 third-party defendants (and a companion case 3 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 509

506 N.E.2d 509

399 Mass. 687, 55 USLW 2656,

Prod.Liab.Rep. (CCH) P 11,393

Patricia DIGHTON et al. ¹ v. FEDERAL PACIFIC ELECTRIC COMPANY; Sert, Jackson &amp Associates, Incorporated & others,² third-party defendants (and a companion case³).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 8, 1987.

Decided April 21, 1987.

Stephen M.A. Woodworth, Brockton, for Federal Pacific Elec. Co.

Carol A. Griffin, Boston, for Sert, Jackson and Associates, Inc.

Cornelius J. Moynihan, Jr. (Patricia A. McEvoy, Boston, with him), for Kaiser Aluminum & Chemical Corp.

Martin S. Cosgrove, Quincy, for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

LIACOS, Justice.

The defendant and third-party plaintiff, Federal Pacific Electric Company (Federal Pacific), asks us to reconsider whether a manufacturer is protected by the so-called "statute of repose," G.L. c. 260, § 2B ⁴ (hereafter § 2B); and, if not, whether the statute is unconstitutional because it is violative of the Fourteenth Amendment to the Constitution of the United States or art. 11 of the Constitution of the Commonwealth.

These questions come to us on a scanty record, comprised largely of the pleadings. Nonetheless, the following facts are not disputed. On November 18, 1980, fire ravaged an apartment at 120 Ironside Way in Charlestown, the residence of Patricia Dighton and her family. As a result of that fire, death came to Dighton's foster children, James Abbott and Casandra Chiminello. Dighton and her two sons were injured, as well.

Three years later, Dighton and her sons brought suit in Suffolk Superior Court against Federal Pacific, alleging negligence and breach of warranty with respect to a circuit breaker manufactured by the defendant and "located on the premises" where the fire occurred. On the same date, a similar action for wrongful death was brought against Federal Pacific by Leslie W. Abbott and Richard Stafford, acting in their respective capacities as administrators of the estates of James Abbott and Casandra Chiminello. On a motion by Federal Pacific, these actions were consolidated.

In 1985, the judge permitted Federal Pacific to implead several third-party defendants as to both actions. Among these was the architectural firm which had designed the building, Sert, Jackson & Associates, Incorporated (Sert Jackson). ⁵ In 1986, the judge granted Sert Jackson's motion to dismiss Federal Pacific's third-party complaint because Sert Jackson could be liable for contribution only if it could be directly liable to the plaintiffs, see Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 373 N.E.2d 957 (1978), and because any direct claims by the plaintiffs against Sert Jackson were barred by § 2B. Separate and final judgment was entered for Sert Jackson, and Federal Pacific appealed.

At the time he granted Sert Jackson's motion, the judge also denied a motion by Federal Pacific under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), to dismiss the plaintiffs' claims. Federal Pacific claimed the protection of § 2B, arguing that, as one similarly situated to architects, it was entitled to the same statutory protection under G.L. c. 260, § 2B, as Sert Jackson. Federal Pacific had conceded in its memorandum, however, that its status was solely that of "a supplier and a manufacturer of a construction component"; the judge noted as well that the defendant did not claim to have rendered any "construction services." Relying on what was said about the intended scope of § 2B in Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982), the judge ruled that Federal Pacific, "as a supplier, does not fall within the statutory class envisioned by the legislature." Relying on what was said in Milligan v. Tibbetts Eng'g Corp., 391 Mass. 364, 461 N.E.2d 808 (1984), the judge held that Federal Pacific's circuit breaker panel "did not constitute [an] ... improvement to real property" under § 2B because it was neither "permanent" nor "intimately connected with the real property." The judge then exercised his discretion pursuant to Mass.R.Civ.P. 64, 365 Mass. 831 (1974), and reported to the Appeals Court the following questions of law: "1. Under G.L. c. 260 § 2B is a manufacturer who supplies a construction component that becomes an integral part of structure within the class of entities involved in 'the design, planning, construction or general administration of an improvement to real property.'? 2. Do the acts of designing, manufacturing and supplying a circuit breaker panel that subsequently becomes an integral part of a structure constitute an 'improvement to real property' within the meaning of G.L. c. 260 § 2B?" The Appeals Court granted a motion by Federal Pacific to consolidate the judge's reports and its appeals of his orders dismissing the third-party actions against Sert Jackson. We granted Federal Pacific's application for direct appellate review.

Federal Pacific advances several arguments in support of its contention that the judge erred by dismissing its third-party complaint against Sert Jackson. It also argues, with respect to the court's denial of its own motion to dismiss, that we should adopt one of two alternative positions: (a) that the judge should have construed § 2B to include Federal Pacific within its protective ambit; or (b) that the judge construed § 2B correctly, but that such a construction renders § 2B unconstitutional under the Fourteenth Amendment, with the result that the judge's order dismissing Federal Pacific's claims against Sert Jackson must be reversed.

We hold that dismissal was properly ordered as to Sert Jackson. We further hold that the judge properly denied Federal Pacific's motion to dismiss. We answer both of the reported questions in the negative.

1. Dismissal of the third-party complaint. Federal Pacific argues that § 2B does not apply to its third-party action for contribution because § 2B, by its terms, only bars any "[a]ctions of tort." Contribution is available, however, only "where two or more persons become jointly liable in tort " (emphasis supplied). G.L. c. 231B, § 1(a ), inserted by St.1962, c. 730, § 1. The right to contribution is derivative of the joint liability in tort of the third-party plaintiff and the third-party defendant. See generally O'Mara v. H.P. Hood & Sons, 359 Mass. 235, 238, 268 N.E.2d 685 (1971), and cases cited. See also Liberty Mut. Ins. Co. v. Westerlind, supra. Without liability in tort, there is no right to contribution. ⁶ James Ferrera & Sons v Samuels, 21 Mass.App.Ct. 170, 174, 486 N.E.2d 58 (1985).

Federal Pacific claims, in addition, that since " 'misuse' of a product by an architect" is alleged in the third-party complaint, it is not barred by the language of § 2B. "Misuse," however, is clearly encompassed within the statutory reference to "any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property" (emphasis supplied). G.L. c. 260, § 2B.

Federal Pacific cites, as authority for its contention, our statement that "[a]n action for contribution is not barred if, at the time the tortious activity occurred, the party from whom contribution is sought could have been held liable in tort" (emphasis in original). McGrath v. Stanley, 397 Mass. 775, 781, 493 N.E.2d 832 (1986). McGrath is inapposite. In that decision, we considered the effect on the third-party plaintiffs' rights to contribution from a public entity where primary plaintiffs were barred from suing the public entity directly, due to the plaintiffs' failure to make timely presentment as required by the Massachusetts Tort Claims Act, G.L. c. 258, § 4 (1984 ed.). In those circumstances, we held that c. 258 did not require dismissal of the third-party complaint because, by its explicit language, "[t]he Legislature simply created an exemption from the notice provisions of § 4 for all third-party claims regardless of whether presentment had been made by the party originating the action." McGrath, supra 397 Mass. at 780, 493 N.E.2d 832. ⁷ No analogous exemption appears in § 2B to suggest a legislative intent to permit third-party actions that would otherwise be prohibited by § 2B.

Federal Pacific also maintains that, because its liability may result solely from the architect's negligence, denial of the right to seek contribution is violative of art. 11 of the Massachusetts Declaration of Rights. What was said of the plaintiff in Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982), may be said of Federal Pacific as third-party plaintiff here: "We agree ... that G.L. c. 260, § 2B, does abolish [the] cause of action against [Sert Jackson] without providing an alternative remedy." Id. at 711, 437 N.E.2d 514. But while art. 11 guarantees the right to "a certain remedy, by having recourse to the laws, for all injuries or wrongs," Federal Pacific does not claim that § 2B operates to deny it any fundamental right, nor any right against Sert Jackson that vested prior to the enactment of § 2B. In these circumstances, there is no escape from our prior holding that application of § 2B does not violate art. 11. Id. at 711-713, 437 N.E.2d 514. ⁸

The judge did not err in ruling that § 2B applied to Sert Jackson's motion for dismissal.

2. Construction and constitutionality of § 2B. While Federal Pacific acknowledges that we recently have held to the contrary, see Klein, supra, it urges us either to construe § 2B as including it within the class of protected defendants, or to declare that the statute violates the equal protection guarantees of the Fourteenth Amendment for its failure to protect suppliers whose situations are similar to those of protected architects, construction engineers, and contractors. For the reasons stated in our Klein decision, we continue to hold that § 2B is constitutional even if construed to exclude "suppliers, owners, tenants, and others in possession or control" but not "architects,...