Commonwealth v. Owens-Corning Fiberglas Corp.
Commonwealth v. Owens-Corning Fiberglas Corp.
Opinion of the Court
By St. 1986, c. 336, the “asbestos revival statute,” the Legislature established special time periods during which the Commonwealth and its subdivisions could bring an action, otherwise time-barred, to recover the cost of asbestos removal from public buildings.
The asbestos revival statute contains two sections. Section 1 of St. 1986, c. 336, added § 2D to G. L. c. 260. Section 2D provides:
“Any action brought by . . . the [Cjommonwealth 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 [Cjommonwealth 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.”
It is the position of the asbestos installers that if the Legislature had wanted the asbestos revival statute to apply to installers, as opposed to manufacturers or material suppliers, it would have expressly referred to the statute of repose contained in G. L. c. 260, § 2B. Several cases, the installers remind us, expressly differentiate between a statute of limitations and a statute of repose. See, e.g., Klein v. Catalano, 386 Mass. 701, 702 (1982); Tindol v. Boston Hous. Authy., 396 Mass. 515, 517 (1986); James Ferrera & Sons v. Samuels, 21 Mass. App. Ct. 170, 173 (1985). As those decisions explain, the difference is that a statute of limitations limits the time in which an action may be brought after it accrues; a statute of repose cuts an action off entirely after a specified period, even though the action had not accrued because no injury had occurred or been discovered. Put another way, statutes of limitations are subject to tolling and the effect of amendments to a complaint that relate back; the bar of the statute of repose in § 2B is absolute once the six-year period has run.
There would be more weight to the argument of the installers if the words “statute of repose” appeared in the General Laws. They do not, however. Rather, the phrase is a convenient one, added to the vocabulary of the law by judicial opinions. Although several of those opinions have made
It is also worth bearing in mind that the Commonwealth is not bound by a statute of limitations unless it expressly consents to be bound by such a statute. United States v. Commissioner of Banks, 254 Mass. 173, 176 (1925). Boston v. Nielsen, 305 Mass. 429, 430 (1940). The statutory expression of that principle appears in G. L. c. 260, § 18, which provides that “[t]he limitations of the preceding sections of this chapter . . . shall apply to actions brought by or for the [C]ommonwealth.” In, thus, making itself subject to the bars of c. 260, the consent section does not distinguish between the conventional statutes of limitations that appear in other sections of c. 260 and the statute of repose, which appears in § 2B.
Having in mind the remedial purpose of the asbestos revival statute, see Boston v. Keene Corp., 406 Mass. 301, 309-310 (1989), we read St. 1986, c. 336, as applicable to G. L.
The order allowing the defendant installers’ motion for summary judgment is vacated. The claims against them shall be tried along with those of the other defendants who are parties to the action.
So ordered.
The asbestos revival statute, its background and constitutionality, are the subjects of Boston v. Keene Corp., 406 Mass. 301 (1989).
The Commonwealth sought relief under G. L. c. 231, § 118, before a single justice of this court from allowance of summary judgment (no final judgment had yet entered nor had the judge made a ruling under Mass.R.Civ.P. 54[b], 365 Mass. 821 [1974]). Under our practice, a single justice ordinarily is reluctant to act on a petition to review an order that is dispositive of the rights of a party. Compare G. L. c. 231, §§ 117 and 118, with G. L. c. 211, § 3. See Pemberton v. Pemberton, 9 Mass. App. Ct. 809 (1980). But see, however, as to the authority of a single justice to act before final judgment, Gibbs Ford, Inc. v. United Truck Leasing Corp., 399 Mass. 8, 10-12 (1987).
Statutes 1986, c. 336, § 2, provides: “Notwithstanding the provisions of section two D ... the [C]ommonwealth or any other political subdivision may commence an action . . . which would otherwise be barred as a result of the expiration of the applicable period of limitation of action at any time prior to July first, nineteen hundred and ninety; provided, however, that such action is commenced prior to July first, nineteen hundred and ninety.”
See Klein v. Catalano, 386 Mass. at 702-703 n.3; James Ferrera & Sons v. Samuels, 21 Mass. App. Ct. at 173. Cf. Boston v. Keene Corp., 406 Mass. 301, 312-313 (1989), making the observation that the interest of a party in a procedural bar is not as great as that in a substantive right. We think the Boston v. Keene Corp. opinion effectively disposes of the due process argument mounted by the installers.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.