Plаintiffs David Snow, Linda Snow, Jason Snow and Kevin Snow brought an action against defendant Harnischfeger Corporation (“Hamischfeger”) alleging defective design and negligence after the trolley wheel of an Harnischfeger crane injured David Snow. Harnischfeger moved for summary judgment, claiming the Massachusetts real estate statute of repose barred the action. The district court agreed and granted summary judgment. We affirm.
I
BACKGROUND
In March 1973, Rust Engineering Cоmpany (“Rust”), an engineering and construction firm acting as agent for Refuse Energy Systems Company .(“RESCO”), engaged Har-nischfeger to assist in the design and manufacture of two thirteen-ton overhead cranes for use at RESCO’s Saugus, Mássachusetts trash-to-energy plant. 1 The cranes are used to move trash into trash feed hoppers where the trash is burned and steam is generated and converted into electricity. Rust incorporated the cranes intо the plant’s buildings as part of the original construction. Hamisch-feger was not involved in the design or construction of the RESCO facility, nor did Har-nischfeger install the cranes.
On December 29,1987, the trolley wheel of one of the overhead cranes severed David Snow’s third, fourth and fifth finger and a portion of his right hand. At the time, Snow was working at the Saugus facility. The Snow family brought an action in Essex Superior Court, Commonwealth of Massachusetts, alleging the crane was unsafe due to Hamischfeger’s failure to equip the trolley with wheel guards and rail sweeps, automatic audio or visual movement alarms, a proper lock-out system or -kill switch, and Harnisch-feger’s failure to warn of inherent risks. 2 Harnischfeger removed the action to the district court pursuant to 28 U.S.C. § 1446, and moved for summary judgment under the Massachusetts real estate statute of repose (“statute”).
*1157 The statute, Mass.Gen.Laws Ann. eh. 260, § 2B (West 1992) (“M.G.L. c. 260, § 2B”), prоvides:
Action [sic] 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 oрening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner. 3
Id. 4 The district court found Harnischfeger was included in the class of actors protected under the statute and granted the summary judgment motion. 5
On appeal the Snows argue (1) the district court improperly granted summary judgment where genuine issues of material fact remained; (2) the district court impermissibly extended repose to the manufacturer of a machine thereby changing Massachusetts’ product liability law; (3) the district court improperly found Harnischfeger was a protected actor within the meaning of M.G.L. c. 260, § 2B; and (4) questions of local law are central to the disposition of the appeal and should be certified to the Massachusetts Supreme Judicial Court (“SJC”).
II
DISCUSSION
Standard of Review
“We review a grant of summary judgment
de novo,
using the same criteria incumbent upon the district court.”
Gaskell v. Harvard Coop. Soc’y,
Issues of Fact
According to the Snows, four genuine issues of material fact remain in dispute, mak *1158 ing summary judgment inappropriate. We have reviewed their contentions and find them to be without merit.
The Snows first argue there is a genuine issue of fact as to whether Harnischfeger is in the construction business.
6
The Snows do not dispute Harnischfeger designed and manufactured the crane. Instead, the Snows assert that these activities are not sufficient for a court to find that Harnischfeger is involved in the construction industry and that such involvement is necessary to bring Har-nischfeger within M.G.L. c. 260, § 2B. Har-nischfeger contends M.G.L. c. 260, § 2B provides protection ‘“to architects,
engineers,
contractors
and others
involved in the
design, planning,
construction or general administration of improvements to real property’” and suggests it deserves repose as an “ ‘engineer’ or ‘other’ involved in the ‘design,’ ‘planning and ‘construction’ of the overhead crane.” Brief of Defendant-Appellee at 10-11 (alteration in original) (quoting
Klein,
Whether a defendant’s activities fall within the statute is a question of law.
See, e.g., McDonough v. Marr Scaffolding Co.,
The Snows next argue there is a genuine issue of fact as to whether thé overhead crane is a unique product. They argue the crane, like many standard cranes, was merely customized to fit inside a building, shed or structure. Harnischfeger maintains that, the product is unique and custom designed for RE SCO. In support Harnischfeger offers affidavits showing the following: Harnisch-feger designed, manufactured and constructed the cranes’ lifting capacity as well as the dimensions of the major components for specific plant and job functions; Rust supplied specifiсations that were the basis of the designs including specified overhead and wall clearances; and Harnischfeger custom designed sixteen component parts and manufactured and assembled virtually all the components. The Snows counter that they have presented evidence showing the crane is a standard design and the trolley was previously designed for sale in Florida.
The Snows’ evidence, which consists of Harnischfegеr’s brochures and literature along with expert affidavits and deposition testimony, does not create any genuine issue of fact for trial. The brochures emphasize that customers should avoid “standard” cranes and should have Harnischfeger’s experts design a crane that will satisfy their particular needs. At best, the literature suggests Harnischfeger has standardized the materials used to create the crane and standardized certain components to be mixed and matched into a final product. In addition, the opinions of Snows’ experts that the crane, as a final product, is a basic design similar to cranes used in other industries do not contradict Harnischfeger’s evidence. A crane can be designed for a particular location and specialized function and still retain the essential characteristics common to industrial cranes. Moreоver, the ability of the crane to be adopted for use by another industry is immaterial to Harnischfeger’s status as a protected actor because the relevant inquiry involves the motivation behind and the activity of producing the product; not the product itself.
See Dighton v. Federal Pac. Elec. Co.,
*1159
Lastly, the Snows raise the issue of the status of the crane, arguing first that there is a genuine issue of fact as to whether the crane is an improvement to real property. Once again, however, the Snows do not dispute any relevant facts but rather the application of law to these facts. The parties agree as to the essential characteristics of the crane. There is an established legal standard defining improvements for purposes of M.G.L. e. 260, § 2B as well as case law establishing when the definition should be applied.
See Milligan v. Tibbetts Eng’g Corp.,
The Snows also argue there is a genuine issue of fact as to whether the crane is a permanent fixture. The SJC has rejected adoption of a fixture analysis to determine applicability of the statute of repose, noting the statute “makes no reference to ‘fixtures,’ nor does it appear that the Legislature intended, by its choice of the common term ‘improvement,’ to subsume that tangle of highly technical meanings, often distinct in diverse legal contexts, which is the law of fixtures.”
Dighton,
Harnischfeger as a Protected Actor
The Snows further challenge the summary judgment order by maintaining the district court acted impermissibly and without precedent in applying the statute to Harnischfeger, who they define as “manufacturers of a machine.” The Snows argue Harnischfeger, as a manufacturer, is outside the class of actors M.G.L. e. 260, § 2B is designed to protect. Harnischfeger admits to having manufactured the crane but argues a manufacturer who engages in protected activities is entitled to repose.
The purpose of the statute is “to protect providers of ‘individuаl expertise’” who “render particularized services for the design and construction of particular improvements to particular pieces of real property.”
Id.
The statute does not name a class of protected actors, but instead extends protection to “those who commit ‘any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property.’ ”
Id.
at 514. Certain actors obviously fall within the statute.
See id.
at 516. These actors include architects, engineers and contractors.
Klein,
Ambiguity in the applicаtion of M.G.L. e. 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.
See Dighton,
In
Dighton,
the defendant did not claim to have provided particularized servicеs with respect to the improvement — the building— but rather claimed the benefit of the statute as a designer, manufacturer and supplier of a component that fell within Webster’s definition of improvement.
8
Id.
at 515, 516. The SJC did not reject the contention that a producer of a component may be entitled to protection.
See id.
at 516;
see also McDonough,
In considering whether an actor not clearly within the statute is entitled to repose, the court engages in a fact-based activities analysis. See id. The court must consider the motivation of the actor in producing the improvement. 9 Id. If the actor designed the improvement for public sale or for general use, thеn the actor is not protected because the actor is engaged in the activity of creating a fungible product. See id. If, however, the improvement is produced for a particular project and to the specifications of an architect or an engineer, M.G.L. e. 260, § 2B may protect the actor as someone engaged in the activity of designing a particularized improvement. Id.
Like the defendant in Dighton, Harnisehfeger does not clаim to have rendered particularized services with respect to the design or construction of the RESCO facility. Instead, Harnischfeger claims to be brought within the protection of the statute by designing RESCO’s cranes. Pursuant to affidavits submitted, when designing the crane that caused Mr.' Show’s injuries, Harnischfeger’s motivation in producing the crane was to create, at the request of the construction engineer, an essential component of the plant building, made to the construction engineer’s specifications, for sale only to RESCO and for incorporation only into the RESCO plant. RESCO intended the cranes to be a permanent and integral part of the overall plant, making the property useful. Harnischfeger was not motivated to create a fungible crane *1161 available to a variety of buyers and appropriate for incorporation into a number of fаcilities. Harnisehfeger’s actions conform to those outlined by the Dighton Court and are protected activities. 10
As the plaintiffs note,* “[w]hen faced with the question of whether or not the defendant is entitled to repose under M.G.L. c. 260 § 2B, the first question to be answered is ‘Is the defendant a protected actor under M.G.L. c. 260 § 2B?’ ” Brief of the Plaintiffs-Appellants at 11. Having answered affirmatively, we now state our agreement with the trial court that the crane is an improvement to real propеrty within the meaning of the statute.
See Snow,
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.
Milligan,
Certifícation
Following the district court order and subsequent appeal and shortly before oral arguments, the Snows brought a motion asking for the first time that the following two questions be certified to the SJC:
(1) Whether the defendant, Harnisehfeger, the manufacturer of a manually operated overhead crane, is a member of the class M.G.L. c. 260, § 2B was designed to protect?
(2) Whether the district court acted appropriately in using Webster’s Third International Dictionary’s definition of ‘improvement’ in determining whether the plaintiffs’ product liability claims were barred by M.G.L. c. 260, § 2B?
The Snows had argued to the district court that Dighton was dispositive of the issues in their case but now claim “[t]he foregoing questions of local law are central to the disposition of this appeal.... [T]he local law on this question has not been clearly determined.” 11 Plaintiffs-Appellants’ Memorandum in Support of their Motion to Certify Questions of Local Law to the Supreme Judicial Court of Massachusetts at 2.
Certification of determinative issues is appropriate where “it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Judicial Court.” Supreme Judicial Court Rule 1:03, § 1 (1986). The SJC construed the scope of M.G.L. c. 260, § 2B in a number of cases.
See, e.g., McDonough,
Affirmed.
Notes
. Hamischfeger has designed and manufactured overhead cranes since 1906 and has built more than 24,000 overhead trolley cranes. Hamisch-feger customizes each overhеad trolley crane it manufactures. Overhead cranes such as those built by Hamischfeger are generally considered heavy-duty machinery for specific production purposes and used by many industries to lift and move heavy objects.
. In their amended complaint, the Sn,ows charge Hamischfeger with defective design, negligence, breach of express warranty and breach of the implied warranty of merchantability.
. Massachusetts courts have construed the statute to apply to implied breach of warranty claims where the underlying cause of action is the same as the tort claim.
Klein v. Catalano,
. M.G.L. c. 260, § 2B was last revised in 1984. Id.
.The district court barred the Snows’ action noting the RESCO plant became operational in 1975 and the Snows did not institute their action until 1990. In 1986, Harnischfeger designed two replacement trolleys. The Snows do not argue that we should measure the application of the statute from the date Harnischfeger designed the replacement trolleys.
. The Snows assert:
[t]he defendant claimed that because it manufactured an overhead crane that became affixed to real property, it was involved in the construction business. The plaintiffs contend that the defendant's design and manufacture of an overhead crane which is housed in a structure on real proрerty, does not mean the defendant was involved in the type of construction contemplated by M.G.L. c. 260 § 2B.
Brief of the Plaintiffs-Appellants- at 5-6.
. The Snows argue that Dighton imposes a requirement upon the court to engage in a two-step analysis to determine whether Harnischfeger is protected under M.G.L. c. 260, § 2B. According to the Snows, Dighton requires the court to consider whethér the statute names the party as a protected actor, i.e., an architect or engineer. If the answer is yes, the сourt may determine whether the defendant engaged in protected acts.
Dighton
imposes no such test. The
Dighton
court merely noted that the trial judge framed the question in this bipartite form.
On its face, § 2B defines the protected actor largely by reference to protected acts. The body of § 2B names no class of protected actors. Rather, its terms extend protection to persons allegedly responsible for acts, i.e., those who commit "аny deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property.”
Id. Thus, the court can and must engage in an activities analysis when the defendant’s status as a protected actor is unclear. See id.
. This definition has been adopted by the SJC where the defendant’s status as a protected actor is not in doubt. Id. at 516.
.The SJC provides the following illustration:
[I]f a piece of metal sculpture were welded to an еxposed girder in a building, it certainly could be characterized as a "permanent addition to or betterment of" the property, one "enhancing] it capital value,” one "involv[ing] the expenditure of labor or money," one "designed to make the property more ... valuable,” and one clearly distinguish[able] from ordinary repairs.” But would that tell us whether, or to what extent, the sculptor had been involved in the protected activity of "improvement to real property?” We think not. If he produced the sculpture on commission by the developer to specifications provided in part by the architect and the engineer, we might conclude that he is protected by § 2B; but if he mass-produced the sculpture and sold it for use in a variety of contexts, or for incorporation into any building, we would conclude that he had been involved merely in the activity оf producing and selling a fungible commodity, and not in the activity of improving real estate.
Dighton,
. As the Snows' experts note, a subsequent purchaser could remove and modify the RESCO cranes for use in another industry, although this contingency was neither Rust's nor Hamischfeger's intention. Furthermore, we do not look at possible future uses and are therefore unconcerned that the crane could someday be sold to another party, or could be incorporated into another plant.
. The Snows also acknowledged the dispositive nature of the case law at a hearing before the district court.