ADOLFO ROSARIO vs. M.D. KNOWLTON COMPANY & another. [Note 1]

KANTROWITZ, J. The main issue raised concerns the applicability of the statute of repose, G. L. c. 260, § 2B. Adolfo Rosario sued the defendants, M.D. Knowlton Company (Knowlton) and AFCO Industries doing business as AFCO Equipment Corporation (AFCO), for a personal injury he sustained in 1996 when he became entangled with a hydraulic lift installed nearly a decade earlier.

Rosario claimed that the defendants were (1) negligent; (2) in breach of certain warranties; and (3) engaged in unfair or deceptive acts or practices in violation of G. L. c. 93A. Both defendants filed motions for summary judgment, arguing that Rosario's claims were barred by the statute of repose relating to actions of tort based on improvements to real property. The judge allowed Knowlton's motion, but denied AFCO's, finding that the record was unclear as to whether the type of activities performed by AFCO qualified as design, planning, construction, or general administration of an improvement to real property under the statute.

AFCO was permitted by a single justice to bring an interlocutory appeal from the denial of its motion for summary judgment, and Rosario appeals from the separate and final judgment entered in favor of Knowlton. We hold that both defendants are entitled to the protection of the statute of repose. Accordingly, we affirm the judgment in favor of Knowlton and reverse the order denying AFCO's motion.

Background. [Note 2] In 1986, Rosario's employer, Come Play

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Products (Come Play), contacted AFCO [Note 3] regarding the possible purchase of a material handling lift for its facility in Worcester. Michael Hatzopolas, also known as Michael Hatter (Hatter), an AFCO representative specializing in material handling consulting, visited Come Play's facility and evaluated the feasibility of installing a material lift for Come Play's needs. AFCO recommended a model EH-38F Stationary Flow-Thru Platform Type PowR-Conveyor, a custom-made [Note 4] material hydraulic lift designed and manufactured by Knowlton. [Note 5]

Hatter made several visits to Come Play to gather the specifications necessary for Knowlton to design and construct the lift. During these visits Hatter took measurements and made calculations necessary for Knowlton to design the lift, and recommended that building modifications be made to ensure its proper installation. Hatter also made multiple visits to the plant

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to check on the progress of those modifications. AFCO submitted the specifications to Knowlton. Based on Hatter's information and specifications, Knowlton gave AFCO a price quote and a custom-design configuration for the lift. Knowlton's design plans were then submitted to and approved by AFCO and by Come Play. In November, 1986, the lift was delivered to Come Play and installed by MJB Installations, a subcontractor employed by AFCO. AFCO inspected the lift after installation, and called the installer back to make adjustments. Neither AFCO nor Knowlton did any further work on the lift after December, 1986.

Nearly ten years later, on August 28, 1996, Rosario was severely injured by the lift while working with it. He filed his complaint in October, 1997.

The statute of repose. "As a statute of repose, G. L. c. 260, § 2B,[ [Note 6]] precludes recovery against those within the protection of the statute for any injury which occurs more than six years after the performance or furnishing of the design, planning, construction, or general administration of an improvement to real property." Klein v. Catalano, 386 Mass. 701 , 702 (1982).

It is undisputed that Rosario filed his claim more than six years after the lift was opened for use or was in the possession of Come Play. Therefore, the pivotal issue is whether the defendants and their activities fall within the protection of the statute. If there is no genuine issue of material fact as to whether the defendants were involved in the design, planning, construction or general administration of the lift at Come Play, then summary judgment is appropriate. See Snow v. Harnischfeger Corp., 12 F.3d 1154, 1158 (1st Cir. 1993), cert. denied, 513 U.S. 808 (1994), citing McDonough v. Marr Scaffolding Co., 412 Mass. 636 (1992).

Section 2B applies to the defendants if they are protected actors and the lift is an improvement to real property. We analyze

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the latter issue first, since it will be the same as applied to both defendants.

The lift as an improvement to real property. The phrase "improvement to real property" is not defined in § 2B. Massachusetts courts have declined to follow a rigid fixture analysis in defining this term. See Dighton v. Federal Pac. Elec. Co., 399 Mass. 687 , 696, cert. denied, 484 U.S. 953 (1987). Instead, courts have found guidance in the following definition of "improvement" for purposes of § 2B: "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs." Conley v. Scott Prod., Inc., 401 Mass. 645 , 647 (1988) (installation of insulation an improvement; so too, aluminum siding), quoting from Webster's Third New Intl. Dictionary 1138 (1961). See Snow v. Harnischfeger Corp., supra at 1161.

The facts on the record show that Knowlton custom designed and manufactured the lift to the specifications supplied by AFCO, for eventual sale to, and installation in, the Come Play facility. Knowlton expended over 320 hours of labor in the manufacturing and assembly of the lift. The lift, which basically transported heavy materials to another floor, was permanently installed at the Come Play facility in Worcester. It had the effect of making the second floor of the plant substantially more useful to any occupant of the plant, whether owner or tenant. We agree with the motion judge that the lift is an improvement to real property.

Protected actor status. "[Section 2B] was intended not to apply to mere suppliers of standardized products, but only to the kinds of economic actors who perform acts of 'individual expertise' akin to those commonly thought to be performed by architects and contractors -- that is to say, to parties who render particularized services for the design and construction of particular improvements to particular pieces of real property." Dighton v. Federal Pac. Elec. Co., supra. See Klein v. Catalano, supra at 716-717. The issue is whether AFCO and Knowlton acted as mere materialmen or suppliers, who would not be afforded repose protection, or acted as architects, engineers,

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contractors, surveyors or other protected actors, who would be afforded coverage. See Dighton v. Federal Pac. Elec. Co., supra at 694 n.10; Snow v. Harnischfeger Corp., supra at 1159.

"Ambiguity in the application of [G. L.] c. 260, § 2B[,] arises when it is unclear whether a party acted as a materialman or supplier rather than an architect, engineer, contractor, surveyor or some other protected actor. A party is not a protected actor when the party does not perform protected acts. Conversely, an actor such as a manufacturer or supplier may be protected if that actor becomes more than a 'mere' supplier by engaging in protected activities." Ibid. (citations omitted).

It is helpful to this determination to note again that the lift was a custom-designed product, as a court "must consider the motivation of the actor in producing the improvement. If the actor designed the improvement for public sale or for general use, then the actor is not protected because the actor is engaged in the activity of creating a fungible product. If, however, the improvement is produced for a particular project and to the specifications of an architect or an engineer, [G. L.] c. 260, § 2B[,] may protect the actor as someone engaged in the activity of designing a particularized improvement." Id. at 1160 (footnote and citations omitted).

Knowlton designed and manufactured a custom product, made to specifications provided by AFCO. The product was not "off the shelf." Knowlton provided individual expertise and rendered particularized services in connection with the design and construction of the lift. Knowlton is, therefore, entitled to protection under the statute of repose for tort actions.

AFCO's status as a protected actor is somewhat less clearly etched. While it acted as a supplier, did it also act in another capacity, as one affording individual expertise who rendered particularized services for the design and construction of an improvement to real property?

McDonough v. Marr Scaffolding Co., 412 Mass. 636 (1992), is instructive. In McDonough, a young boy was fatally injured when he fell between bleachers at a skating rink. The defendants were Marr Scaffolding Company (Marr), who ordered, assembled and erected the bleachers, and Snyder Tank Corporation (Snyder), who designed, manufactured, and delivered the

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bleachers. McDonough attempted to avoid the application of the statute of repose to Marr by suing Marr solely in its capacity of supplier, although Marr also acted as a contractor. The court held that McDonough could not avoid the statute of repose by "identifying Marr only by reference to its limited status as a supplier." Id. at 642.

Snyder also was entitled to protection by the statute of repose, as the record demonstrated that Snyder did not act as a "mere supplier," but designed the bleacher units at issue specifically for the particular rink. Id. at 644.

Here, the motion judge determined that AFCO performed the following: "evaluat [ed] the Come Play plant to determine whether it was possible to install a material lift, t[ook] measurements of the dimensions of the plant, ma[de] calculations necessary for the design of the lift, suppl[ied] the necessary specifications to Knowlton . . . , inspect[ed] the facility, ma[de] certain repair/renovation recommendations for the area where the lift was to be placed to accommodate and ensure its proper installation, inspect[ed] the progress of the renovations on 8-10 occasions before delivery, and enter[ed] into a subcontract agreement with MJB Installations to install the lift at Come Play."

Even if one acts as an unprotected actor, he may nonetheless be protected if he also engages in the types of activities protected by G. L. c. 260, § 2B. As in McDonough, AFCO provided individual expertise and particularized services relating to the design and construction of an improvement to real property; it collaborated in the design of the lift, and supervised its installation; it specified and supervised building modifications. See Klein v. Catalano, 386 Mass. at 717; Dighton v. Federal Pac. Elec. Co., 399 Mass. at 695-696; Snow v. Harnischfeger Corp., 12 F.3d at 1159-1161. As such, AFCO is a protected actor entitled to protection by the repose provision of G. L. c. 260, § 2B, despite AFCO's additional role as supplier of the product.

Breach of implied warranty. Rosario argues that his claim for breach of implied warranty was not barred by § 2B.

Although § 2B expressly applies only to actions of tort, Massachusetts courts have held that actions for breach of implied warranty are also barred by the statute of repose when the warranty

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claims "essentially allege the same elements as the negligence claims." McDonough v. Marr Scaffolding Co., supra at 642, citing Klein v. Catalano, supra at 719. If the cause of action for breach of implied warranty were allowed to proceed, the statute would not have its intended effect. Klein v. Catalano, supra at 719-720. Rosario's breach of implied warranty actions are identical to his negligence causes of action, which were rightly disposed of by summary judgment, and so are also barred by § 2B.

Breach of express warranty. Rosario also claims that Knowlton was in breach of an express warranty. Because the statute of limitations applicable to an express warranty claim has run, summary judgment on this point was also correct.

A claim for breach of an express warranty, an action in contract, is not governed by the statute of repose for tort actions set forth in G. L. c. 260, § 2B. Coca-Cola Bottling Co. of Cape Cod v. Weston & Sampson Engrs., Inc., 45 Mass. App. Ct. 120 , 128 (1998), citing Klein v. Catalano, supra at 708. An express warranty claim is an action based in contract rather than in tort. Anthony's Pier Four, Inc. v. Crandall Dry Dock Engrs., Inc., 396 Mass. 818 , 822 (1986). Therefore, the express warranty claim is subject to the four-year statute of limitations for contracts under G. L. c. 106, § 2-725. [Note 7] The cause of action accrued for statute of limitations purposes at the time of delivery of the lift, in November, 1986. See ibid. See also New England Power Co. v. Riley Stoker Corp., 20 Mass. App. Ct. 25 , 27 (1985). Because Rosario did not file his complaint until 1997, any claim for breach of an express warranty is barred by the statute of limitations.

Chapter 93A. Rosario's c. 93A count is premised on claims dismissed on summary judgment. This count falls with them. See GTE Prod. Corp. v. Broadway Elec. Supply Co., 42 Mass. App. Ct. 293 , 302 (1997). [Note 8]

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The order denying the motion for summary judgment with respect to AFCO is reversed and judgment is to enter for AFCO. The judgment with respect to Knowlton is affirmed. [Note 9]

So ordered.