SVF Riva Annapolis v. Gilroy , 459 Md. 632 ( 2018 )

SVF Riva Annapolis LLC, et al. v. Moreen Elizabeth Gilroy, et al., No. 66, September
Term, 2017, Opinion by Adkins, J.
COURTS AND JUDICIAL PROCEEDINGS ARTICLE — STATUTE OF REPOSE
— SCOPE: Md. Code (1973, 2013 Repl. Vol.), § 5-108 of the Courts and Judicial
Proceedings Article (“CJP”) is Maryland’s statute of repose. The statute creates an
absolute time-bar on lawsuits against certain classes of defendants. CJP § 5-108(d)(2)
provides several exceptions to this bar. Petitioners claimed that one such exception, CJP
§ 5-108(d)(2)(i)—the possession and control exception—eliminates the statute’s
protection only in cases involving injury caused by asbestos. The Court of Appeals held
that CJP § 5-108(d)(2)(i) provides an exception to the statute of repose for anyone in
possession or control of real property, regardless of whether the claimed injury resulted
from exposure to asbestos.
Circuit Court for Anne Arundel County
Case No.: C-02-CV-15-001605
Argued: April 6, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 66
September Term, 2017
SVF RIVA ANNAPOLIS LLC, et al.
v.
MOREEN ELIZABETH GILROY, et al.
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Adkins, J.
Filed: June 25, 2018
A statute of repose “shelters legislatively-designated groups from an action after a
certain period of time.” 1 Anderson v. United States, 427 Md. 99, 118 (2012). Maryland’s
statute of repose, codified at Md. Code (1973, 2013 Repl. Vol.), § 5-108 of the Courts and
Judicial Proceedings Article (“CJP”), bars certain claims relating to injuries caused by
improvements to real property. CJP § 5-108(d)(2) lists several exceptions to the statute of
repose. Subsection (d)(2)(i) provides that the protections of the statute shall not apply if the
“defendant was in actual possession and control of the property as owner, tenant, or
otherwise when the injury occurred . . . .”2 The remaining subsections, (d)(2)(ii)–(iv),
eliminate the statute’s protection for certain defendants in cases where a claimed injury was
caused by exposure to asbestos. In this case, we must determine whether the possession and
control exception opens defendants to liability even in cases that do not involve asbestos.
BACKGROUND
On January 13, 2012, Sean McLaughlin arrived at the Chuck E. Cheese restaurant
located at the Festival at Riva Shopping Center in Annapolis, Maryland to repair the HVAC
1
A statute of repose differs from a statute of limitations in that the former provides
“an absolute bar to an action or . . . a grant of immunity to a class of potential defendants
after a designated time period.” Anderson v. United States, 427 Md. 99, 118 (2012). “A
statute of limitations is a procedural device that operates as a defense to limit the remedy
available from an existing cause of action.” First United Methodist Church of Hyattsville
v. U.S. Gypsum Co., 882 F.2d 862, 865 (4th Cir. 1989). Statutes of limitations are
motivated by “considerations of fairness” and are “intended to encourage prompt resolution
of disputes” by providing a means of disposing of stale claims. Id. at 866. Statutes of
repose are motivated by “considerations of the economic best interests of the public as a
whole and are substantive grants of immunity based on a legislative balance of the
respective rights of potential plaintiffs and defendants . . . .” Id.
2
We shall refer to Md. Code (1973, 2013 Repl. Vol.), § 5-108(d)(2)(i) of the Courts
and Judicial Proceedings Article (“CJP”) as the “possession and control exception.”
unit on the restaurant’s roof. McLaughlin placed a ladder on one of the restaurant’s exterior
walls that he presumably thought led up to the building’s roof. The wall enclosed an open-
air garbage area typically occupied by dumpsters or trash compactors. After McLaughlin
climbed the ladder, he mounted the wall and fell 20 feet to the concrete pad on the other
side. McLaughlin sustained severe injuries and died 12 days later.
Respondents Moreen Elizabeth Gilroy and McLaughlin’s other survivors3 filed a
wrongful death action in the United States District Court for the District of Maryland against
Petitioners SVF Riva Annapolis, LLC (“SVF”), the owner of the shopping center in which
Chuck E. Cheese was located, and Rappaport Management Corporation (“Rappaport”), the
shopping center’s property manager. In federal court, SVF joined the tenant and restaurant
operator, CEC Entertainment, Inc. (“CEC”), in a third-party complaint. Gilroy amended her
federal complaint to include CEC. The federal court dismissed the complaint without
prejudice for lack of subject-matter jurisdiction because the parties lacked complete diversity.
Gilroy refiled the complaint against SVF, Rappaport, and CEC in the Circuit Court
for Anne Arundel County. The complaint alleged, in negligence and premises liability
claims, that all three defendants failed to warn McLaughlin that the wall had no roof access.
SVF and Rappaport filed separate motions for summary judgment and CEC filed a
motion to dismiss. SVF and Rappaport both contended that the statute of repose barred
Gilroy’s claims because the building was completed in 1990, beyond the 20-year limit
imposed by the statute, and because the possession and control exception applied only to
3
We shall refer to the Respondents collectively as “Gilroy.”
2
asbestos cases. Additionally, Rappaport argued that as the property manager, it was not in
“possession and control” of the property, and therefore not subject to liability. CEC moved
to dismiss on the grounds that McLaughlin was contributorily negligent, and the action was
untimely under Maryland’s Wrongful Death Act, CJP § 3-904(g)(1). CEC also
incorporated SVF’s arguments regarding the statute of repose.
After a hearing, the Circuit Court, ruling that the statute of repose applied, granted
the motions for summary judgment and motion to dismiss and explained that the possession
and control exception only applies to asbestos-related claims. The judge explained:
[T]he Court notes that subsection (d), while it has the language
the plaintiff has pointed out, all relates to asbestos. And in this
section it appears that the [L]egislature was clearly trying to
create the carve out or the exception for the asbestos cases.
And to read this otherwise would render the statute of repose,
basically meaningless, and there would be no statute of repose.
The Court of Special Appeals reversed—holding that the possession and control
exception is not limited to asbestos cases. See Gilroy v. SVF Riva Annapolis LLC, 234 Md.
App. 104, 125 (2017). We granted certiorari to answer the following question:4
4
We have rephrased the questions presented. CEC’s Petition for Writ of Certiorari
asked us to answer the following questions:
1. Was the Court of Special Appeals correct in reversing the
Circuit Court’s decision to grant the respondents[’] motions
for summary judgment based upon Md. Code [(1973, 2013
Repl. Vol.), § 5-108(d)(2)(i) of the Courts and Judicial
Proceedings Article (“CJP”)]?
2. Was the Court of Special Appeals correct in reversing the
Circuit Court’s decision to grant . . . Respondents[’]
motions for summary judgment even though alternative
3
Does the possession and control exception to the statute of
repose apply in non-asbestos cases?
For the reasons set forth below, we hold that it does and shall affirm the decision of
the Court of Special Appeals.
DISCUSSION
The parties appeal the Circuit Court’s decision to grant the motions for summary
judgment and a motion to dismiss. When considering such motions, we must first
determine whether there are any genuine disputes of material fact. Koste v. Town of
Oxford, 431 Md. 14, 24–25 (2013). If there is no such dispute, then we decide whether the
lower court’s legal conclusion was legally correct. Id. at 25. Here, the Circuit Court
reached a conclusion regarding the scope of CJP § 5-108(d)(2)(i). Assessing a lower
court’s interpretation of a statute is a question of law which, we review without deference.
State v. Neiswanger Mgmt. Servs., LLC, 457 Md. 441, 455 (2018) (“We review the Circuit
Court’s statutory interpretation without deference.”).
The issue here is one of statutory interpretation: whether the statute’s possession
and control exception applies in non-asbestos cases. “The cardinal rule of statutory
construction is to ascertain and effectuate the intent of the [L]egislature.” Blake v. State,
395 Md. 213, 224 (2006). When interpreting a statute, “[t]his Court provides judicial
deference to the policy decisions enacted into law by the General Assembly.” Phillips v.
grounds existed to affirm summary judgment solely based
upon questions of law?
The other Petitions offered substantially the same questions.
4
State, 451 Md. 180, 196 (2017). This analysis assumes, however, “that the [L]egislature’s
intent is expressed in the statutory language and thus our statutory interpretation focuses
primarily on the language of the statute . . . .” Id.
We begin our analysis by first looking to the normal, plain
meaning of the language of the statute, reading the statute as a
whole to ensure that no word, clause, sentence or phrase is
rendered surplusage, superfluous, meaningless or nugatory. If
the language of the statute is clear and unambiguous, we need
not look beyond the statute’s provisions and our analysis ends.
Occasionally we see fit to examine extrinsic sources of
legislative intent merely as a check of our reading of a statute’s
plain language. In such instances, we may find useful the
context of a statute, the overall statutory scheme, and archival
legislative history of relevant enactments.
Douglas v. State, 423 Md. 156, 178 (2011) (quoting Evans v. State, 420 Md. 391, 400 (2011)).
Consistent with these principles, we begin with an analysis of the plain language of
CJP § 5-108.
Plain Language
CJP § 5-108 is titled “[i]njury to person or property occurring after completion of
improvement to realty.” In pertinent part, it provides:
(a) Injury occurring more than 20 years later. — Except as
provided by this section, no cause of action for damages
accrues and a person may not seek contribution or indemnity
for damages incurred when wrongful death, personal injury, or
injury to real or personal property resulting from the defective
and unsafe condition of an improvement to real property occurs
more than 20 years after the date the entire improvement first
becomes available for its intended use.
***
(d)(1) “Supplier” defined. — In this subsection, “supplier”
means any individual or entity whose principal business is the
5
supply, distribution, installation, sale, or resale of any product
that causes asbestos-related disease.
(2) This section does not apply if:
(i) The defendant was in actual possession and
control of the property as owner, tenant, or
otherwise when the injury occurred;
(ii) In a cause of action against a manufacturer or
supplier for damages for personal injury or death
caused by asbestos or a product that contains
asbestos, the injury or death results from
exposure to asbestos dust or fibers which are
shed or emitted prior to or in the course of the
affixation, application, or installation of the
asbestos or the product that contains asbestos to
an improvement to real property;
(iii) In other causes of action for damages for
personal injury or death caused by asbestos or a
product that contains asbestos, the defendant is a
manufacturer of a product that contains asbestos;
or
(iv) In a cause of action for damages for injury to
real property that results from a defective and
unsafe condition of an improvement to real
property [under certain conditions]: . . . .
(Emphasis added).
CJP § 5-108(a) prohibits a plaintiff from bringing a claim for wrongful death,
personal injury, or injury to personal property resulting from an improvement to real
property more than 20 years after the improvement. CJP § 5-108(b) provides that such
actions have a 10-year limit when brought against certain classes of professionals such as
architects, professional engineers, and contractors.
6
The possession and control exception excludes certain defendants from the
protections articulated in CJP § 5-108(a) and (b). CJP § 5-108(d)(2)(ii)–(iv) all relate to
claims against manufacturers or suppliers of asbestos products. The possession and control
exception, however, makes no mention of asbestos and eliminates the statute’s protection
for any defendant “in actual possession and control of the property as owner, tenant, or
otherwise when the injury occurred[.]” Id. (d)(2)(i).
As the Court of Special Appeals observed, the four exceptions in CJP § 5-108(d)(2) are
linked by the conjunction “or.” Gilroy, 234 Md. App. at 111. “And” and “or” are both
conjunctions used to link other words, phrases, or clauses. “Or” has a disjunctive meaning
while “and” has a conjunctive meaning. Compare The American Heritage Dictionary of the
English Language 1236 (4th ed. 2006) (“or” is a conjunction “[u]sed to indicate an alternative,
usually only before the last term of a series . . . .”), with id. at 66 (“and” is a conjunction
meaning “[t]ogether with or along with; in addition to; as well as[; u]sed to connect words,
phrases, or clauses that have the same grammatical function in a construction.”).5
In several cases, Maryland courts have interpreted “or” consistently with its
disjunctive meaning. In Thanos v. State, 282 Md. 709, 716–17 (1978), we recognized the
“well-settled principle that where, as here, a statute forbids the doing of any of several acts
stated disjunctively, a charging document alleging more than one act in a single count, even
5
See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts § 12, at 116 (2002) (“Under the conjunctive/disjunctive canon, and combines
items while or creates alternatives. . . . With a conjunctive list, all . . . things are required—
while with the disjunctive list, at least one of the [things] is required, but any
one . . . satisfies the requirement.”) (italics in original).
7
in the very language of the statute, will be defective as indefinite, since the disjunctive
renders it uncertain which alternative is intended.” (footnote omitted). Likewise, in Burnett
v. Spencer, 230 Md. App. 24, 33 (2016), the Court of Special Appeals observed:
[Md.] Rule 2-631 states that “judgments may be enforced only
as authorized by the rules or by the statute.” Because the rule
employs the disjunctive term “or,” it is obvious, as a matter of
logic and grammar, that a person may enforce a judgment by a
method that is authorized by the rules alone: the method need
not also be expressly authorized by the statute.
(cleaned up) (emphasis in original). See also Moore v. State, 388 Md. 623, 633–34 (2005)
(“or” is disjunctive in a criminal statute setting out a series of prohibited practices); County
Council of Prince George’s Cty. v. Dutcher, 365 Md. 399, 418 (2001) (the Legislature
recognized two distinct administrative processes by joining them with “the disjunctive
‘or’”); Schlossberg v. Citizens Bank of Md., 341 Md. 650, 657 (1996) (“or” as used in a
confessed judgment rule has a disjunctive meaning). This rule is not absolute though.
“‘[A]nd’ and ‘or’ may be used interchangeably when it is reasonable and logical to do so.”
Little Store, Inc. v. State, 295 Md. 158, 163 (1983).6
Disagreeing with the Court of Special Appeals’ analysis of the statutory language,
Petitioners argue that we should limit the possession and control exception to those cases
involving asbestos. The intermediate appellate court determined that there were four
exceptions to the statute of repose—linked by the conjunction “or,” which typically has a
6
See also David N. v. St. Mary’s Cty. Dep’t of Soc. Servs., 198 Md. App. 173, 197
(2011) (“[O]r” may have a conjunctive meaning when “‘the context reasonably supports
the inference that such a construction is necessary to effectuate the intent of the
Legislature.’” (quoting Reier v. State Dep’t of Assessments & Taxation, 397 Md. 2, 31–32
(2007))).
8
disjunctive meaning. See Gilroy, 234 Md. App. at 111. The Petitioners dismiss this
analysis, arguing that a logical interpretation of the subsection is to treat all four exceptions,
including the “possession and control” exception, as limited to asbestos-related claims.
Gilroy retorts that the plain language is clear, and that no such limitation should be
read into the statute. Both Petitioners and Gilroy point to cases from this Court—in which
we discussed the possession and control exception only in passing—as support for their
arguments.
Gilroy relies on Rose v. Fox Pool Corp., 335 Md. 351 (1994). In that case, we
considered whether the statute of repose barred a suit against a manufacturer for injuries
sustained in a swimming pool. The pool manufacturer argued that the statute of repose
shielded it from liability even though the statute did not expressly mention manufacturers as
a protected class of defendants. Id. at 358. We decided that the statute of repose protected
manufacturers from actions brought beyond the 20-year limitation contained in CJP § 5-
108(a). We emphasized that CJP § 5-108(a) offers broad protection because it does not name
specific classes of defendants. Therefore, the statute protects all defendants unless they are
expressly recognized by one of the exceptions in CJP § 5-108(d). Id. at 361. We explained:
Unlike subsection (b), which specifically names architects,
professional engineers, and contractors as persons entitled to
greater protection from liability than that afforded by
subsection (a), and unlike subsections (d)(2)(i) (defendant in
possession and control) and (d)(2)(ii), (iii), and (iv) (all
relating to the exclusion of manufacturers and suppliers of
asbestos), subsection (a) does not identify the class of persons
to which it applies.
9
Id. at 360 (emphasis added). Gilroy emphasizes our characterization of the possession and
control exception in Rose and urges us to rely upon it here.
Petitioners rely on Hagerstown Elderly Assocs. Ltd. P’ship v. Hagerstown Elderly
Bldg. Assocs. Ltd. P’ship, 368 Md. 351 (2002). In Hagerstown Elderly, a real estate
partnership sued a construction partnership after part of a housing facility’s exterior wall
crumbled during a violent storm. Id. at 355–56. The construction partnership, consisting of
construction contractors, argued that CJP § 5-108(b) barred the plaintiffs’ suit for breach of
contract. Id. at 356–57. The Court weighed the question of whether the statute of repose
applied to breach of contract claims. Id. at 358–59. Reasoning that CJP § 5-108(b) shields
contractors from liability after the ten-year period provided by the statute, we decided that
the statute of repose barred the action. Id. at 363. In analyzing the operation of the statute
of repose, we discussed CJP § 5-108(d) only in passing, in a footnote, and said: “Section 5-
108(d) provides an exception to the twenty-year period set forth in subsection (a) and the
ten-year period set forth in subsection (b) for certain actions based on injuries arising from
exposure to asbestos products. That exception does not apply in this case.” Id. at 358
n.3 (emphasis added). Petitioners claim that this bolded language limits the (d)(2) possession
and control exception to only asbestos cases. But we do not think the Court, while focusing
on a different issue—whether the statute of repose defense applied to a contract claim—
intended to establish a rule at odds with the plain language of subsection (d)(2).
The Circuit Court, recognizing the existence of the disparate characterizations in
Hagerstown Elderly and Rose, explicitly indicated it relied upon Hagerstown Elderly
partially because that case came after Rose. But neither case involved express
10
consideration of the meaning of the possession and control exception. Instead, both cases
included only a fleeting mention of the exceptions in CJP § 5-108(d). For this reason, we
do not find either Hagerstown Elderly or Rose to be particularly helpful in our analysis of
the language of the possession and control exception.
Despite its proximity to three additional exceptions relating to asbestos, the
possession and control exception makes no mention of asbestos. Furthermore, the
exceptions are joined by the disjunctive “or.” This suggests that the provisions listed in
CJP §§ 5-108(d)(i)–(iv) set forth four independent exceptions to the statute of repose. See
Thanos 282 Md. at 716–17; Burnett, 230 Md. App. at 33; Scalia & Garner, supra, § 12, at
116. Although we offered divergent characterizations of these exceptions in Hagerstown
Elderly and Rose, upon careful inspection, the plain language of the possession and control
exception is clear. That exception unambiguously states that “[t]his section does not apply
if: [t]he defendant was in actual possession and control of the property as owner, tenant, or
otherwise when the injury occurred.” CJP § 5-108(d)(2)(i). For these reasons, we conclude
that the possession and control exception applies even when the claimed injury does not
result from exposure to asbestos.
We are not persuaded otherwise by Petitioners’ argument that this interpretation
nullifies the statute of repose for most classes of defendants. Our interpretation of the
exception does not expand liability for builders, contractors, sellers, or others involved in
the construction of improvements of real property. The possession and control exception,
as the language indicates, only applies to those in possession and control of the real
property as an owner, tenant, or otherwise. So builders, contractors, or sellers—who are
11
no longer involved with the property post-completion—may move on and claim the
protection of the statute of repose.
To be sure, the caption for CJP § 5-108(d) could be misleading. The caption—
added by a legal publishing company—is “[a]pplicability of section to asbestos-related
claims.” When divining the meaning of a statutory provision, we do not allow such
unsanctioned additions to impact our analysis. This phrase does not appear in the official
copies of the Maryland Code and was not passed by the Legislature.
Md. Code (2014, 2016 Supp.), § 1-208 of the General Provisions Article prohibits
reliance on subsection captions or catchlines:
Unless otherwise provided by law, the caption or catchline of
a section or subsection that is printed in bold type, italics, or
otherwise:
(1) is intended as a mere catchword to indicate the
contents of the section or subsection; and
(2)(i) may not be considered as a title of the section
or subsection; and
(ii) may not be considered as a title if the section,
subsection, caption, or catchline is amended or
reenacted.
(Emphasis added). See also Mayor & City Council of Balt. v. Hooper, 312 Md. 378, 388
(1988) (code section caption or headline has no relevance with respect to intent of
Legislature in enacting statute within that section); Montgomery Cty. v. Eli, 20 Md. App.
269, 276 (1974) (“[Section H]eadings are not the words of the [L]egislature and cannot be
read to inject an intent not expressed in the body of law.”).
12
Both Petitioners and Gilroy argue that the legislative history of the possession and
control exception supports their respective interpretations. When interpreting a statute, if
the plain language is clear, we “have been loathe to find an ambiguity that would require
recourse to interpretive sources other than the statute’s text.” Price v. State, 378 Md. 378,
391 (2003). But we have been willing to examine supplemental “interpretive sources” such
as legislative history, even where the statutory text is clear, when a party relies on such a
source to support an interpretation contrary to the one required by the plain meaning. Id.
at 392; see also Moosavi v. State, 355 Md. 651, 665–66 (1999) (discussing legislative
history after concluding that the plain meaning of a statute was clear); Kaczoroswki v.
Mayor & City Council of Balt., 309 Md. 505, 514–15 (1987) (“[W]e are not limited to the
words of the statute as they are printed in the Annotated Code. We may and often must
consider other ‘external manifestations’ or ‘persuasive evidence,’ including . . .
amendments that occurred as it passed through the [L]egislature, [and] its relationship to
earlier and subsequent legislation . . . .”). Because both parties rely on the legislative
history of the possession and control exception, we shall examine it now.
Legislative History
When examining a statute’s legislative history, we view “amendments that were
considered and/or enacted as the statute passed through the Legislature, and the statute’s
13
relationship to earlier and subsequent legislation . . . [as] ‘external manifestations’ or
‘persuasive evidence’ of legislative purpose . . . .” Rose, 335 Md. at 360.
The Statute’s Inception
Maryland’s statute of repose was first enacted in 1970 as Article 57 § 20. Even
then, it included an exception for persons in possession and control of an improvement to
real property at the time the injury occurred:
No action to recover damages for injury to property real or
personal, or for bodily injury or wrongful death, arising out of the
defective and unsafe condition of an improvement to real
property, nor any action for contribution or indemnity for
damages incurred as a result of said injury or death, shall be
brought more than twenty years after the said improvement was
substantially completed. This limitation shall not apply to any
action brought against the person who, at the time the injury
was sustained, was in actual possession and control as owner,
tenant, or otherwise of the said improvement. For purposes of
this section, “substantially completed” shall mean when the entire
improvement is first available for its intended use.
1970 Md. Laws, ch. 666 (emphasis added).
We described the purpose of that law, and statutes of repose generally, in Whiting-
Turner Contracting Co. v. Coupard, 304 Md. 340, 349 (1985):
They are a response to the problems arising from the expansion
of liability based on the defective and unsafe condition of an
improvement to real property. Liability has expanded from the
standpoint of potential claimants due to a decline in the
availability of defenses based on the absence of privity of
contract.[7] . . . In addition, the time following [c]ompletion
7
“The impetus behind the legislation appears to have come from a concern about
legal developments that expanded liability to those not in privity with the owners of real
property.” Hartford Ins. Co. of Midwest v. Am. Automatic Sprinkler Sys., Inc., 201 F.3d
538, 542 (4th Cir. 2000) (citing Rose v. Fox Pool Corp., 335 Md. 351 (1994)) (emphasis
in original). The privity of contract doctrine denied recovery to any person who lacked a
14
within which a damage action might properly be brought had
been expanded . . . by determining the time of accrual of a
cause of action under the general statute of limitations by using
the discovery rule where claims arose out of the construction
of improvements to real property. . . . One purpose of the Act
is to restrict the operation of the discovery rule.[8]
(Cleaned up). As it was initially enacted in 1970, the statute of repose made no mention
of asbestos.
Early Amendments
The Legislature modified the statute in 1973, 1979, and 1980 but consistently retained
the possession and control exception. In 1973, the Legislature re-codified the statute at CJP § 5-
108, but moved the possession and control exception to CJP § 5-108(b). The statute then stated:
(a) Injury resulting from improvement to realty. — Except as
provided by this section, no cause of action for damages
accrues and a person may not seek contribution or indemnity
for damages incurred when wrongful death, personal injury, or
injury to real or personal property resulting from the defective
and unsafe condition of an improvement to real property occurs
more than 20 years after the date the entire improvement first
becomes available for its intended use.
(b) Exception. — This section does not apply if the
defendant was in actual possession and control of the
contractual relationship with the party that designed or constructed the improvement. Rose
v. Fox Pool Corp., 335 Md. 351, 362 n.2 (1994). Starting in the 1950s, courts began to
make exceptions to this requirement and rejected the “privity of contract” doctrine in cases
against architects, contractors, and others involved in the construction process. Id.
8
The discovery rule is an exception to the general rule that “limitations against a right
or cause of action begin to run from the date of the alleged wrong and not from the time the
wrong is discovered.” Harig v. Johns-Manville Prods. Corp., 284 Md. 70, 76 (1978). It
permits a plaintiff to sue “when the plaintiff ‘ascertains, or through the exercise of reasonable
care and diligence should have ascertained, the nature and cause of . . . [the] injury.’” Duffy
v. CBS Corp., 458 Md. 206, 211 n.3 (2018) (quoting Harig, 284 Md. at 76).
15
property as owner, tenant, or otherwise when the injury
occurred.
(c) When action accrues. — A cause of action for an injury
described in this section accrues when the injury or damage
occurs.
Md. Code (1973, 1974 Repl. Vol.), CJP § 5-108 (emphasis added).
The 1979 amendment added a subsection creating a ten-year limitation period for
actions against architects and professional engineers. 1979 Md. Laws, ch. 698. The 1980
change added contractors to the list of persons included in the ten-year limitation. 1980
Md. Laws, ch. 605. Neither the 1970 nor the 1980 amendments changed the language in
the possession and control exception. After the 1980 amendments, the statute read:
(a) Injury occurring more than 20 years later. — Except as
provided by this section, no cause of action for damages
accrues and a person may not seek contribution or indemnity
for damages incurred when wrongful death, personal injury, or
injury to real or personal property resulting from the defective
and unsafe condition of an improvement to real property occurs
more than 20 years after the date the entire improvement first
becomes available for its intended use.
(b) Action against architect, professional engineer, or
contractor. — A cause of action for damages does not accrue
and a person may not seek contribution or indemnity from any
architect, professional engineer, or contractor for damages
incurred when wrongful death, personal injury, or injury to real
or personal property, resulting from the defective and unsafe
condition of an improvement to real property, occurs more than
10 years after the date the entire improvement first became
available for its intended use.
(c) Three year limitation after accrual of cause of action. —
Upon accrual of a cause of action referred to in subsections (a)
and (b), an action shall be filed within 3 years.
16
(d) Exception. — This section does not apply if the
defendant was in actual possession and control of the
property as owner, tenant, or otherwise when the injury
occurred.
(e) When action accrues. — A cause of action for an injury
described in this section accrues when the injury or damage
occurs.
Md. Code (1973, 1984 Repl. Vol.), CJP § 5-108 (emphasis added); see also 1980 Md.
Laws, ch. 605.
1991 Asbestos Amendments
The Legislature again amended the statute in 1991. 1991 Md. Laws, ch. 271. The
story of the 1991 amendments begins in 1990, when the Legislature attempted to amend
the statute—only to have the changes rejected by Governor Schaefer. We detailed the
development and attempted adoption of these amendments in Rose, 335 Md. at 367–71.
See also Duffy v. CBS Corp., 458 Md. 206 (2018).
In the late 1980s, several suits raised the question of whether CJP § 5-108(a) barred
actions against product manufacturers. In these suits, trial courts repeatedly held that CJP
§ 5-108(a) applied to shield manufacturers of asbestos products from liability. Rose, 335
Md. at 367. These decisions prompted calls for the Legislature to limit the protection of
the statute of repose for manufacturers of asbestos products. Id. Two bills, Senate Bill 500
and House Bill 1025 were introduced in the General Assembly and would have excluded
from the statute’s protection, “a manufacturer or supplier of any materials, equipment,
machinery, or other articles that are part of an improvement to real property . . . .” Id. at
17
368. This broad language—seemingly applicable to any manufacturer—was later limited
to only manufacturers of asbestos products. Id. at 368–69.
Opponents of the Bills still argued that the language was too broad. Id. at 369.
Governor Shaefer ultimately vetoed the proposed amendments and issued a veto statement
articulating similar concerns. He wrote:
Many of those in favor of this legislation argue that the bill is only
a clarification of the original 1970 enactment, which they further
believe has been incorrectly interpreted by many trial courts. . . .
[O]ur own analysis leads to the conclusion that this bill is not a
clarification of the law, but is in fact a major, substantive revision
of the Statute of Repose. That fact must not be lost.
Veto Statement on S.B. 500, An act concerning the Statute of Repose — Improvements to
Real Property, 1990 Md. Laws, at 3173 (May 25, 1990); see also Rose, 335 Md. at 369–70.
In 1991, the Legislature again took up the issue of modifying the statute of repose.
This time, the Governor proposed two bills, Senate Bill 335 and House Bill 496. The
purpose of these administration bills was to “clarif[y] that a manufacturer or supplier of
articles containing asbestos or other material which is reasonably dangerous that is part of
an improvement to real property is not exempt from liability for damages or injury under
certain conditions.” Fiscal Note for S.B. 335, 1991 Leg., 405th Sess. (Md. 1991). The
Legislature passed, and the Governor signed, this legislation which amended the statute of
repose to the form it appears today.
The legislative history of the 1991 amendments to CJP § 5-108 in Rose makes no
mention of any legislative debate regarding the possession and control exception at issue
here. Indeed, a careful review of the Bill Files for both S.B. 335 and H.B. 496 shows no
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consideration of limiting the exception. Instead, the legislative history indicates that the
General Assembly only intended to broaden—not limit—the exceptions to the statute of
repose.
At oral argument, Petitioners asserted that the possession and control exception was
first moved to subsection (d) in 1991, with the asbestos amendments. In fact, the possession
and control exception was moved to subsection (d) in 1979 when the Legislature created a
shorter limitation for architects and engineers at subsection (b). 1979 Md. Laws, ch. 698. Even
still, Petitioners provide no support from the legislative history for the assertion that the
possession and control exception applies only in asbestos cases. Indeed, no such support
exists—there is no discussion of the possession and control exception in any of the legislative
history for the asbestos amendments. Petitioners maintain, however, that the Legislature’s
inclusion of the asbestos amendments in subsection (d) somehow meant that it intended to
modify a core exception to the statute of repose that has existed since the statute’s creation.
We refuse to make such an interpretive leap. See, e.g., Warden v. Drabic, 213 Md. 438, 442
(1957) (“‘We are not at liberty to imagine an intent [of the Legislature], and bind the letter of
the act to that intent . . . .’” (quoting Alexander v. Worthington, 5 Md. 471, 485 (1854))).
In sum, we are unpersuaded by Petitioners’ arguments regarding the language or
legislative history of CJP § 5-108(d)(2)(i), and we conclude that the possession and control
exception applies even in cases that do not involve injuries caused by asbestos.
Additional Issues Raised on Appeal
Petitioners gamely attempt to inject additional issues into this appeal. Specifically, they
argue that, even if we agree with Gilroy regarding the scope of the possession and control
19
exception, we should affirm the trial court because (1) the decedent was contributorily
negligent, and (2) Maryland’s wrongful death statute bars the suit. Rappaport also argues
that—despite being the property manager—it was not in possession or control of the property.
Md. Rule 8-131 provides, in pertinent part:
Ordinarily, the appellate court will not decide any other issue
unless it plainly appears by the record to have been raised in or
decided by the trial court, but the Court may decide such an
issue if necessary or desirable to guide the trial court or to avoid
the expense and delay of another appeal.
On appeal from an order of summary judgment, “we review only the grounds upon which
the trial court relied in granting summary judgment.” Springer v. Erie Ins. Exch., 439 Md.
142, 156 (2014) (cleaned up). The proper procedure upon reversing a trial court’s grant of
summary judgment, is to remand to the trial court for further proceedings. Bishop v. State
Farm, 360 Md. 225, 234 (2000). If we come to a different conclusion on the pertinent
question of law and reverse a grant of summary judgment by a trial court, we will not seek
to sustain the grant of summary judgment on different grounds. Mathews v. Cassidy Turley
Md., Inc., 435 Md. 584, 598 (2013).
The entirety of the Circuit Court’s oral ruling rested on the question of whether the
statute of repose applied to asbestos cases. The Circuit Court made no mention of
contributory negligence, the wrongful death statute, or Rappaport’s possession and control
argument. On the record, counsel for SVF asked the Circuit Court for clarification
regarding the outstanding motions and the arguments therein:
[SVF Counsel]: Your Honor, for purposes of record clarity
only, there are three motions pending. SVF Riva had a motion
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for summary judgment, Rappaport had a motion for summary
judgment, CEC had a motion to dismiss. Are all three granted?
The Court: The motions to dismiss and/or summary
judgments are granted --
[SVF Counsel]: Thank you, Your Honor.
The Court: -- as to the argument relating to the statute of
repose.
[SVF Counsel]: Thank you, Your Honor.
The Court: Court need not address any other arguments.
All right?
(Emphasis added). The Circuit Court’s written order provided no further explanation of
its reasoning for granting the defendants’ motions.9 The Court of Special Appeals also
limited its decision to whether the possession and control exception applied in non-asbestos
cases.10
9
The order stated:
It is . . . ORDERED, that the pending motions listed below are
hereby GRANTED:
1. Motion for Summary Judgment by Defendant, SVF Riva
Annapolis, LLC (filing date 7/9/15);
2. Motion to Dismiss by Defendant, CEC Entertainment, Inc.
(filing date 7/21/15); and
3. Motion for Summary Judgment by Defendant, Rappaport
Management Company (filed 8/10/15).
10
The Court of Special Appeals explained:
We decline to address . . . [contributory negligence and the
wrongful death statute] at this time. This is because “[o]n
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On this record, we decline to take up the additional issues of contributory
negligence, the wrongful death statute, and Rappaport’s control over the property. These
issues were not ruled upon by the Circuit Court or the Court of Special Appeals.
Accordingly, Petitioners’ arguments on these issues must await another day.
CONCLUSION
We affirm the judgment of the Court of Special Appeals and hold that CJP § 5-
108(d)(2) sets out four independent exceptions to the statute or repose. Specifically, CJP
§ 5-108(d)(2)(i) does not apply only in cases involving injury from exposure to asbestos,
but applies to any defendant “in actual possession and control of the property as owner,
tenant, or otherwise . . . .”
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONERS.
appeal from an order entering summary judgment, we review
only the grounds upon which the trial court relied in granting
summary judgment.” . . . .
Upon remand, the trial court should rule on the contentions
raised by CEC.
Gilroy v. SVF Riva Annapolis LLC, 234 Md. App. 104, 125–26 (2017) (citation omitted).
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