Gilroy v. SVF Riva Annapolis , 234 Md. App. 104 ( 2017 )

Circuit Court for Anne Arundel County
Case No. C-02-CV-15-001605
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2610
September Term, 2015
____________________________________
MOREEN ELIZABETH GILROY, ET AL.
v.
SVF RIVA ANNAPOLIS LLC, ET AL.
____________________________________
Kehoe,
Krauser,*
Zarnoch, Robert A.,
(Senior Judge, Specially Assigned),
JJ.
____________________________________
Opinion by Kehoe, J.
____________________________________
Filed: September 1, 2017
*Krauser, Peter B., J., now retired, participated in the hearing of this case while an active
member of this Court and as its Chief Judge. After being recalled pursuant to the Constitution,
Article IV, Section 3A, he participated in the decision and the preparation of this opinion.
Sean McLaughlin died on January 25, 2012, as a result of injuries received as he was
trying to repair an HVAC unit on the roof of an Annapolis restaurant. Appellants, Moreen
Elizabeth Gilroy and Mr. McLaughlin’s other survivors, filed a wrongful death action
asserting claims of negligence and premises liability against SVF Riva Annapolis, LLC,
the owner of the shopping center in which the restaurant was located; Rappaport
Management Corporation, the center’s property management company; and CEC
Entertainment, Inc., the tenant and the operator of the restaurant.
SVF Riva and Rappaport filed motions for summary judgment. CEC filed a motion
for summary judgment or to dismiss. They raised several theories as to why judgment
should be granted on their behalf, but the Circuit Court for Anne Arundel County entered
judgment for appellees on the ground that one of Maryland’s statutes of repose,
specifically, Md. Code Ann., § 5-108(a) of the Courts and Judicial Proceedings Article
(“CJP”), barred appellants’ claims.
Appellants assert that the circuit court misinterpreted the statute. We believe that they
are correct and will reverse the judgment and remand this case for further proceedings,
which should include consideration of the other grounds raised by the appellees in their
motions.
Background
At this juncture, the parties do not contest the facts. On the night of January 13, 2012,
Mr. McLaughlin made a service call to repair the HVAC unit on the roof of the Chuck E
Cheese restaurant at the Festival at Riva Shopping Center in Annapolis. He placed a
ladder against an exterior wall and climbed up to access the malfunctioning heating unit.
However, the wall at the location selected by Mr. McLaughlin was open to the ground
below. When Mr. McLaughlin attempted to step from the ladder onto what he must have
thought was the roof, he fell more than 20 feet to a concrete pad. He was badly injured
and passed away 12 days later.
Appellants initially filed suit against the appellees in the United States District Court
for the District of Maryland on January 27, 2014. On April 24, 2015, the District Court
dismissed the action without prejudice for lack of subject matter jurisdiction.
Appellants then filed the present action in the Circuit Court for Anne Arundel County
on May 12, 2015. SVF Riva answered the complaint and filed cross claims seeking
indemnification and contribution against the other two parties. Rappaport did the same.
Both SVF Riva and Rappaport then filed separate motions for summary judgment on the
basis that CJP § 5-108 barred the suit. CEC filed a motion to dismiss, which also included
the statute of repose argument. Additionally, CEC asserted that the wrongful death action
was untimely under Maryland’s wrongful death statute and that McLaughlin was
contributorily negligent.
At the hearing on the motions for summary judgment, the court and the parties
focused on the scope of the exceptions to the statute of repose that are set out in CJP § 5-
108(d). Appellants argued that § 5-108(d)(2)(i), which provides an exception to the
operation of the statute for defendants who were “in actual possession and control of the
property as owner, tenant, or otherwise when the injury occurred,” applied to appellees.
Appellees disagreed, arguing that the owner, tenant, or party in possession exception had
2
to be read in context with the rest of the exceptions listed in subsection (d), which pertain
to asbestos-related claims. They asserted that this meant that the exception for actions
against owners, tenants, or those in possession of the property was limited to asbestos-
related claims and did not apply to the present action.
The trial court agreed with appellees’ interpretation of the statute. The court noted
that it perceived no clear answers in the case law but it found guidance from language in
Hagerstown Elderly Assocs. Ltd. Partnership v. Hagerstown Elderly Bldg. Assocs. Ltd.
Partnership, 368 Md. 351, 359 n. 3 (2002), which indicates that the subsection (d)
exceptions apply only to asbestos-related claims. (We will discuss Hagerstown later in
this opinion.) The trial court concluded 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 legislature was clearly trying to
carve out . . . 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 circuit court did not address the other grounds presented by appellees. This timely
appeal followed.
The Standard of Review
Appellate review of an order granting summary judgment is a two-step process. The
first is to decide whether there were disputes of material fact before the circuit court.
Koste v. Town of Oxford, 431 Md. 14, 24–25 (2013). If, as is true in this case at this
juncture, there were no such disputes, then we decide whether the circuit court’s legal
reasoning was correct. We perform this review de novo. Id. at 25. Whether the circuit
3
court’s interpretation of a statute is correct is a question of law that we also review de
novo. See Beall v. Holloway-Johnson, 446 Md. 48, 76 (2016).
The Court of Appeals recently summarized the applicable principles of statutory
construction:
This Court provides judicial deference to the policy decisions enacted into
law by the General Assembly. We assume that the legislature’s intent is
expressed in the statutory language and thus our statutory interpretation focuses
primarily on the language of the statute to determine the purpose and intent of the
General Assembly.
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.
Phillips v. State, 451 Md. 180, 196-97 (2017) (quoting Douglas v. State, 423 Md. 156,
178 (2011)).
As we will explain, we do not agree with the circuit court’s interpretation of the
statute. Admittedly, CJP § 5-108(d) has a number of moving parts and its proper
construction is made more difficult by the decidedly unhelpful captions added by the
Code’s two commercial publishers. However, the exception to the statute for actions
brought against parties who were in possession and control of the premises at the time the
injury or accident occurred has been part of the statute since it was first enacted in 1970.
In the ensuing 47 years, the statute has been amended on several occasions. For our
purposes, the critical amendment was enacted in 1991. There is nothing in the legislative
4
history of the 1991 amendment that suggests that the General Assembly intended to
eliminate the existing exception––rather, the legislative intent was to add three additional,
narrowly-crafted, exceptions to the statute to address certain asbestos related claims.
The captions for subsection (d) that appear in the versions of the Code published by
LexisNexis and West Publishing do not affect the analysis because captions and
catchlines are not part of the law itself and should not be considered when construing the
statute. We recognize that our conclusion is inconsistent with dicta in the Hagerstown
Elderly Associates opinion. However, the Court of Appeals more thoroughly addressed
the scope of subsection (d) in Rose v. Fox Pool Corp., 335 Md. 351, 360 (1994), and our
result is consistent with the analysis in that decision.
Analysis
1. Defining the Problem: Is “Or” Used Conjunctively
or Disjunctively in the Statute?
Statutes of repose are designed to establish “an absolute bar to an action or to provide
a grant of immunity to a class of potential defendants after a given time period.”
Anderson v. United States, 427 Md. 99, 118 (2011). Section 5-108 addresses certain
claims arising out of improvements to real property. It states (emphasis added):
(a) 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) Except as provided by this section, a cause of action for damages does not
accrue and a person may not seek contribution or indemnity from any architect,
5
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) Upon accrual of a cause of action referred to in subsections (a) and (b) of this
section, an action shall be filed within 3 years.
(d)(1) In this subsection, “supplier” means any individual or entity whose
principal business is the 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:
1. The defendant is a manufacturer of a product that contains
asbestos;
2. The damages to an improvement to real property are caused by
asbestos or a product that contains asbestos;
3. The improvement first became available for its intended use after
July 1, 1953;
4. The improvement:
A. Is owned by a governmental entity and used for a public
purpose; or
B. Is a public or private institution of elementary, secondary, or
higher education; and
5. The complaint is filed by July 1, 1993.
6
(e) A cause of action for an injury described in this section accrues when the
injury or damage occurs.
On its face, subsection (d) appears to set out four exceptions to the statute. Three of
them, CJP § 5-108(d)(2)(ii)-(iv), apply to claims against manufacturers or suppliers of
products containing asbestos. However, CJP § 5-108(d)(2)(i) provides an exclusion for a
defendant “in actual possession and control of the property as owner, tenant, or otherwise
when the injury occurred” and makes no mention of asbestos. The four exceptions are
linked by the conjunction “or.” “Or” generally has a disjunctive meaning, that is, the
word is used to indicate “an alternative between unlike things, states or actions[.]”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1585 (1986); see
also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1236 (4th ed.
2006) (defining “or” as a conjunctive “used to indicate an alternative . . . .”). Maryland
courts generally interpret “or” in the disjunctive sense when they construe statutes.1
1
See, e.g., Burnett v. Spencer, 230 Md. App. 24, 33 (2016) (“Rule 2-631 states that
‘[j]udgments may be enforced only as authorized by these rules or by statute.’ (Emphasis
added.) 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 statute.”); In re
Adoption of K’Amora K., 218 Md. App. 287, 304 (2014) (“[T]he disjunctive wording in
[Family Law Article] § 5–323(b) ... authorizes the court to terminate a parent’s rights
even absent a specific finding that a parent is unfit to care for her child” so long as
exceptional circumstances are present.); Mills v. Godlove, 200 Md. App. 213, 226 (2011)
(“[W]here the terms undue hardship or practical difficulty ‘are framed in the disjunctive
(“or”), Maryland courts generally have applied ... the less restrictive practical difficulties
standard to area variances because use variances are viewed as more drastic departures
from zoning requirements.’” (Citations omitted)); Severstal Sparrows Point, LLC v. Pub.
Serv. Comm’n of Maryland, 194 Md. App. 601, 624–25 (2010) (Public Utilities Article
“Section 7-505(b)(8) is phrased in the disjunctive. Thus, it must be read to mean that
7
However, this rule is not absolute. Maryland courts sometimes give a conjunctive,
rather than a disjunctive meaning to “or,” when “the context reasonably supports the
inference that such a construction is necessary to effectuate the intent of the Legislature.”
David N. v. St. Mary’s County. Dep’t of Soc. Services, 198 Md. App. 173, 197 (2011)
(quoting Reier v. State Department of Assessments and Taxation, 397 Md. 2, 32 (2007)).2
The trial court’s analysis was necessarily based on the implicit assumption that the “or”
in subsection (d) is to be interpreted in the conjunctive sense.
Whether a court should interpret “or” as a conjunctive in a specific case depends
upon legislative intent, which can be identified through legislative history as well as a
consideration of the substantive provisions of the statute. In the present case, either path
leads to the same destination. Interpreting the “or” in § 5-108(d) as conjunctive is
inconsistent with the statute’s legislative history and also yields illogical results.
either Title 4 or, ‘as applicable,’ Section 7-510(c)(4) governs the ‘terms, conditions, and
rates’ for SOS.”).
2
See also Comptroller v. Fairchild Indus., Inc., 303 Md. 280, 286 (1985) (Courts
construe the word “and” to mean “or” as required by context in order to comply with the
clear legislative intent.); Little Store, Inc. v. State, 295 Md. 158, 163 (1983) (“It is well
settled that the terms ‘and’ and ‘or’ may be used interchangeably when it is reasonable
and logical to do so.”).
8
The Legislative History
The Initial Version of the Statute: Article 57, § 20
What is now CJP § 5-108 was first enacted by the General Assembly in 1970 as
Article 57, § 20. Ch. 666, Laws of Md. 1970. The statute as originally enacted stated
(emphasis added):
No action to recover damages for injury to property real or personal, or for
bodily injury or wrongful death, arising out 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.
In Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340 (1985), the Court
described the purpose of that law and similar statutes:
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. . . . In
addition, the time following completion 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. A related
purpose of the Act is to limit the time after Completion during which a person
may seek contribution or indemnity.
Id. at 349 (citations omitted); see also Anderson v. United States, 427 Md. at 118 (“The
label of statute of repose is used generally to describe a statute which shelters
9
legislatively-designated groups from an action after a certain period of time.” (Citations
omitted)).
The 1973 Recodification
When the Courts and Judicial Proceedings Article was enacted in 1973, the former
Article 57, § 20 was recodified as CJP § 5-108. It retained the owner, tenant, or party in
control exception, which was broken out into its own subsection (emphasis added):
(a) 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) 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.
(c) A cause of action for an injury described in this section accrues when the
injury or damage occurs.
While subsections (a) and (b) closely mirrored former Article 57, § 20, subsection (c)
was a new addition. The revisor’s note states that it was “drafted so as to avoid affecting
the period within which a wrongful death action may be brought.” Chapter 2, First
Special Session, Laws of Maryland 1973 at 211.
10
1979 and 1980: The Statute Is Amended to Further Protect
Architects, Engineers, and Contractors
Amendments in 1979 and 1980 reduced the time period before which the statute
became effective for architects, engineers, and contractors. 1979 Laws of Md., Ch. 698
(architects and engineers); 1980 Laws of Md., Ch. 605 (contractors); Whiting-Turner
Contracting Co. v. Coupard, 304 Md. 340, 347 (1985) (summarizing the statutory
history); Rose v. Fox Pool Corp., 335 Md. 351, 366-367 (setting out the statute’s history).
These amendments added what is now subsection (b) to establish a 10 year statute of
repose for members of those professions. Neither amendment altered the substance of the
exception for claims against for owners, tenants, or those in possession and control of the
property.
The statute then read (emphasis added):
(a) 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) 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) Upon accrual of a cause of action referred to in subsections (a) and (b), an
action shall be filed within 3 years.
(d) 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.
11
(e) A cause of action for an injury described in this section accrues when the
injury or damage occurs.
The Asbestos Amendments of 1991 (ch. 271 of the laws of 1991)
The language at issue in this case was added in 1991, when the General Assembly
passed, and Governor Schaefer signed into law, Senate Bill 335, which became Chapter
271 of the Laws of 1991.
The legislative history of SB 335 is described in detail in Judge Irma S. Raker’s
opinion for the Court in Rose v. Fox Pool, 335 Md. at 367–71, and there is little to be
gained by our attempting to elaborate on the Court’s analysis. For our purposes, it is
sufficient to state that the 1991 legislation was enacted in response to a series of court
decisions concluding that CJP § 5-108, and similar statutes of repose in other states,
barred claims against manufacturers of building products containing asbestos. Rose, 335
Md. at 367–68.
The first attempt at addressing this problem came during the 1990 Session with the
passage of SB 500. This bill was vetoed by Governor William Donald Schaefer.3
3
Governor Schaefer’s concerns focused on language in SB 500 that stated that it was
intended to clarify the intent of the General Assembly when it enacted the original
version of the statute of repose in 1970. Governor Schaefer’s veto message stated that
“our analysis leads us 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.”
Letter from Gov. William Donald Schaefer to Thomas V. Mike Miller, Jr., President of
the Senate (May 25, 1990). He was also concerned about uncertainty the bill would
create: “Senate Bill 500 does not draw a sharp line, but rather would result in
inconsistent, indefinite, and difficult to interpret exposure to litigation for many who
previously were protected by the statute. This retroactive application of the bill strikes me
as particularly unfair.” Id.12
The General Assembly returned to the question of exceptions for asbestos-related
claims during the following session with two administration bills, SB 335 and HB 496.
The purpose of these 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 SB 335 (1991) (available at the Department of
Legislative Reference, Bill File for SB 335). The Senate bill was passed and signed into
law, resulting in the current version of CJP § 5-108(d) (emphasis added):
(d)(1) In this subsection, “supplier” means any individual or entity whose
principal business is the 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:
1. The defendant is a manufacturer of a product that contains asbestos;
2. The damages to an improvement to real property are caused by asbestos or a
In the same letter, Governor Schaefer promised to work with interested parties to develop
“compromise legislation.” Id. This compromise legislation was SB 335 and the identical
HB 496 of the 1991 Session, which enacted the amendments to CJP § 5-108 that concern
us in this appeal.
13
product that contains asbestos;
3. The improvement first became available for its intended use after July 1, 1953;
4. The improvement:
A. Is owned by a governmental entity and used for a public purpose; or
B. Is a public or private institution of elementary, secondary, or higher education;
and
5. The complaint is filed by July 1, 1993.
As noted earlier, this case hinges on the meaning of “or” in subsection (d)(2).
If “or” is used in the disjunctive, then the 1991 amendments added three additional
exceptions to the pre-existing exception for actions against persons in possession or
control of the property:
(1) actions against manufacturers and suppliers for death or personal injury caused by
exposure to asbestos dust or fibers during construction or installation (subsection (d)(ii));
(2) actions against manufacturers, but not suppliers, for deaths and injuries caused by
exposure to asbestos in contexts other than construction or installation (subsection
(d)(iii)); and
(3) actions by school and public entities against manufacturers, but not suppliers, for
damage to property caused by asbestos and asbestos products (subsection (d)(iv)).
If the “or” is conjunctive, then (d)(2)(i), (ii), (iii), and (iv) must be read together to
constitute but a single exception that is indeed limited to cases involving asbestos.
On its face, CJP § 5-108(d) sets out four distinct exceptions, one for actions against
the owners, tenants, and parties in possession of the property; and the remaining three for
claims against asbestos manufacturers or suppliers. There is nothing in the plain text of
14
the statute that suggests that the General Assembly intended what appear to be four
exceptions to be treated as but one exception.
The legislative history for the 1991 law supports this conclusion. It is true that the
history does not explicitly address the exception for claims against persons in possession
or control of the premises. However, it is clear that the 1991 amendments were intended
to add exceptions that operated independently of one another, as opposed to a single
multi-part exception applicable to all claims, whether asbestos-related or not, which
would be the result of reading “or” in the conjunctive sense.
For example, the Floor Report for SB 335 notes that the bill “excludes certain
manufacturers and suppliers of asbestos products from the protection of the ‘statute of
repose’” before listing the three newly drafted conditions under which the statute of
repose does not apply. Senate Judiciary Proceedings Committee Floor Report on SB 335,
at 1 (1991). The Floor Report’s asbestos-centric description of the bill and silence on the
pre-existing exception for an owner, tenant, or party in possession of the property
suggests that the asbestos amendments operate separately.
David Iannucci, then serving as Chief Legislative Officer of the Office of the
Governor, testified about the bills before the Senate Judicial Proceedings Committee and
the House Judiciary Committee. In his testimony, he described the asbestos provisions as
dividing the claims into two categories (emphasis in original):
The bill divides the issue into two categories: personal injury and property
damage.
Personal injury. The bill would preserve the right to sue for individuals suffering
personal injury from exposure to asbestos before an improvement to real
15
property was completed (e.g. the construction phase). This includes the right to
sue suppliers, as well as manufacturers. (subsection (d)(2)[ii])
The bill would waive the protection of the Statute of Repose for manufacturers of
products that contain asbestos, allowing all other individuals to sue for damages
for personal injury caused by asbestos. This would allow the remaining 5% of
personal injury cases to go forward. (subsection (d)[(2)(iii)])
Property damages. The bill would allow recovery for property damages against
manufacturers of products that that contain asbestos under specific
circumstances… (subsection (d)[(2)(iv)])
Testimony of David Iannucci on SB 335 and HB 496, before the Senate Judicial
Proceedings Committee and the House Judiciary Committee (available at the Department
of Legislative Reference, Bill File for SB 335 (underlining in original). In other words,
the asbestos provisions in subsection (d)(2)(ii) through (d)(2)(iv) address different types
of suits and therefore necessarily operate independently of one other. Mr. Ianucci’s
discussion of the 1991 amendments was limited to the asbestos-related additions and did
not address the owner, tenant, or party in possession exception, underscoring that the
1991 amendments were not intended to impact that exception at all.
The plain language of CJP § 5-108 and its legislative history indicate that each of the
exceptions listed in subsection (d)(2) operate independently of one another, with the
owner, tenant, or party in possession exception not limited to asbestos-related cases. We
see no evidence that the 1991 amendments were intended to alter the already-existing
exception for owners, tenants, or others in possession of a property, let alone to limit the
scope of that long-standing exception to apply only in asbestos-related cases.
16
3. The Interpretive Consequences
Having considered the statute’s text and reviewed its legislative history to discern the
General Assembly’s purpose, we turn to the consequences of the competing approaches
advanced by the parties. As we wrote in Town of Oxford v. Koste, 204 Md. App. 578, 586
(2012), aff’d, 431 Md. 14 (2013), “[a]n examination of interpretive consequences, either
as a comparison of the results of each proffered construction, or as a principle of
avoidance of an absurd or unreasonable reading, grounds the court’s interpretation in
reality.” (Citations omitted).
In our view, treating “or” as having a conjunctive meaning in subsection (d) would
yield unreasonable results. Were we to apply the conjunctive meaning throughout
subsection (d), the subsection would be, literally, meaningless: the subsection would
allow for an exception only for actions against manufacturers (and perhaps suppliers) of
asbestos products who also happen to be the owners, tenants or other parties in control of
the premises where the injury occurred but also only if the premises was a school or
government-owned property, and if the complaint was filed prior to 1993.
Even if we apply the owner or tenant requirement separately to each of the asbestos
scenarios, the outcomes scarcely improve. It seems unreasonable to limit a suit against an
asbestos manufacturer or supplier for claims arising out of installation to situations where
the defendant manufacturer or supplier was in possession and control of the property
when the injury occurred, as manufactures and suppliers of asbestos products are rarely in
control of the property where their products are installed. Similarly, allowing a cause of
action by government entities and schools for property damage to be brought against only
17
manufacturers who were owners or tenants in possession and control of the premises
when the injury occurred makes even less sense. These interpretations would limit the
exception in such a way as to render it meaningless.
We reject the notion that, in adopting legislation in 1991 that purported to add
additional exceptions to the statute of repose, the General Assembly actually intended to
limit the exceptions in such a fashion.
4. The Non-Significance of Captions and Headings
The task of interpreting CJP § 5-108 is not made easier by the captions and headings
added to the text of the statute by the West Publishing and LexisNexis in their respective
editions of the Maryland Code.
The caption for § 5-108(d) added by West Publishing is “Personal injury or death
caused by asbestos.” The LexisNexis caption reads: “‘Supplier’ defined.” Neither of
these phrases is part of the law and neither should be considered in interpreting the
statute.
Section 1-208 of the General Provisions Article (“GP”) of the Maryland Code states:
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.
There is no shortage of opinions by this Court and the Court of Appeals applying GP
§ 1-208. See, e.g., Mayor and City Council of Baltimore v. Hooper, 312 Md. 378, 388
18
(1988) (“It seems that Hooper was misled because in the code § 15–607 is headlined,
‘Waiver of Sovereign Immunity.’ But this phrase does not appear in SB 24 or in ch. 489,
Acts 1982. It was not a part of the legislative enactment.”); State v. Holton, 193 Md. App.
322, 364-65 (2010), aff’d, 420 Md. 530 (2011) (“The parties have seized upon that
caption as limiting the scope of the statute itself, which we find to be inappropriate and
inadmissible. In determining the meaning of a statute, we look to the words of the statute
itself, not a caption.”).
When headings for individual subsections are added publishing companies as
editorial features, as is the case here, they are likewise not part of the statute and should
have no effect on its interpretation.4, 5
4
As additional support for their statutory interpretation contentions, appellees point to
Mitchell v. WSG Bay Hills IV, LLC, 2013 WL 6502875, at *2 n. 3 (D. Md. Dec. 11,
2013), in which the District Court noted the bold faced heading “Personal injury or death
caused by asbestos” impacted its interpretation of the subsection (d) exceptions. This
contention is unpersuasive for two reasons. Initially, Mitchell is an unreported decision
and this Court does not afford persuasive weight to such opinions “even when the
jurisdiction in which the unreported opinion was decided permits the citation of
unreported opinions.” Oliveira v. Sugarman, 226 Md. App. 524, 553, aff’d, 451 Md. 208(2017) (citing Kendall v. Howard County, 204 Md. App. 440, 445 n. 1, aff’d, 431 Md.
590 (2013). Additionally, and more to the point, the District Court’s analysis is not
consistent with the settled Maryland decisional and statutory law summarized in the main
text of this opinion.
5
Finally, appellees point to the organization of subsection (d) and emphasize that it
begins by defining a “supplier” as an entity selling, distributing, or otherwise involved
with supplying products containing asbestos. Appellees argue that the fact that the
definition of “supplier” is located before any of the exceptions means that all of the
exceptions refer to asbestos-related claims. This argument is unpersuasive for two
reasons.
19
5. Relevant cases from the Court of Appeals: Rose and Hagerstown Elderly
Finally, there is some inconsistent dicta regarding the scope of the subsection (d)
exceptions.
In Rose v. Fox Pool Corp., 335 Md. 351, 355-56 (1994), a swimmer who was injured
diving into a pool sued the manufacturer, arguing that his injury was caused by the pool’s
defective design and generally unsafe condition. The manufacturer prevailed on its
motion for summary judgment on the basis that Rose’s claims were barred by CJP § 5-
108 because the pool had been installed and in use for over 20 years when the injury
occurred. In affirming the judgment, the Court of Appeals undertook an exhaustive
analysis of the language, history, and meaning of CJP § 5-108. The Court’s focus was on
the issue of whether a products manufacturer was covered under the statute. In its
analysis, however, the Court drew a distinction between subsection (d)(2)(i) and
(d)(2)(ii)-(iv). As to the first, the Court stated that it applied to defendants in possession
and control of the property, while subsection (d)(2)(ii)-(iv) all applied to manufacturers
and suppliers of asbestos. Id. at 360. Later in the opinion, after its discussion of the 1991
asbestos amendments, the Court wrote that “the exclusion of asbestos manufacturers and
First, the term “supplier” does not appear in subsection (d)(2)(i), that is, the owner,
tenant, or party in possession exception that is the focus of our concern. Second,
appellees place too much weight on the way that subsection (d) is organized. That the
definition appears first is consistent with the way that Maryland statutes are written and
have been written for decades. See Dept. of Legislative Services, MARYLAND STYLE
MANUAL FOR STATUTORY LAW, 29 (2008) (directing a legislative drafter to “[p]lace a
definition at the beginning of the smallest statutory unit, e.g., section or subtitle, to which
the definition applies.”); Dept. of Legislative Services, MARYLAND STYLE MANUAL
FOR STATUTORY LAW, 35 (1985) (same).
20
suppliers appeared in § 5-108(d) as subsections (d)(2)(ii), (iii) and (iv).” Id. at 370. In
other words, the Rose Court viewed the asbestos-related restrictions as limited to
subsection (d)(2)(ii)-(iv) rather than applying to (d) as a whole. Appellants suggest that
the Rose Court’s analysis supports their contentions to us.
In a more recent case, Hagerstown Elderly Assocs. Ltd. Partnership v. Hagerstown
Elderly Bldg. Assocs. Ltd. Partnership, 368 Md. 351 (2002), the Court considered CJP
§ 5-108 in the context of a breach of contract action by the owner of a public housing
facility against a contractor who installed an exterior wall that failed during a storm, as
well as the statute’s application to a claim against the contractor’s surety. The Court’s
analysis of CJP § 5-108 focused on subsection (b) of the statute, which addresses when
liability terminates for contractors. Id. at 358–63. In a footnote, however, the Court stated
that subsection (d) “provides an exception to [the operation of the statute] for actions
based on injuries arising from exposure to asbestos products. That exception does not
apply in this case.” Id. at 358 n.3. Appellees point to this footnote to support their
interpretation of subsection (d).
In State v. Baby, Judge Raker’s concurring and dissenting opinion considered the
distinctions between considered or judicial dicta and ordinary dicta:
Judicial dictum is generally defined as ‘an opinion by a court on a question that is
directly involved, briefed, and argued by counsel, and even passed on by the
court, but that is not essential to the decision.’ Statements of judicial dicta are
technically ‘dicta’ because they are not necessary to the holding of a case. They
do not, however, implicate to the same degree as ordinary dicta the concern of
‘full consideration,’ which is one of the rationales for treating dicta and holdings
differently. Unlike ordinary dicta, judicial dicta is, by definition, well- reasoned
and stated only after the court has investigated an issue with care. Accordingly,
21
courts afford judicial dicta greater deference than ordinary dicta, treating judicial
dicta almost like holdings.
404 Md. 220, 778-79 (2008) (quoting David Coale & Wendy Coture, Loud Rules, 34
PEPP. L. REV. 715, 727-28 (2007)).
The issue in Hagerstown Elderly was how CJP § 5-108 applied to breach of contract
actions against contractors as well as claims against a surety. The Court’s discussion of
subsection (d)’s scope was extraneous to the Court’s analysis and was not based upon the
sort of meticulous examination of the statutory history that the Court undertook in Rose.
We acknowledge that the situation is an unusual one, but in our view, the Court’s
analysis in Rose carries greater weight than does the footnote in Hagerstown Elderly.
Rose guides our analysis in this case.
Conclusion
We hold that CJP § 5-108(d)(2) sets out four independent exemptions to the statute of
repose, the first of which is for owners, tenants, or parties otherwise in control of the
property where the injury occurred. The pleadings provide a basis to find that one or all
of the appellees may fall within that exemption. We will reverse the judgment of the
circuit court.
At the circuit court level, CEC raised two issues in addition to its statute of repose
argument. The first was appellants’ claim is barred by contributory negligence. The
second was that the claim was time barred by Maryland’s Wrongful Death Act, CJP § 3-
904. Subsection (g)(1) of the statute requires most claims under the act to be “filed within
three years of the death of the injured person” but by the time appellants filed their suit in
22
the Circuit Court for Anne Arundel County after the federal court dismissed it, more than
three years had passed since McLaughlin’s death.
We decline to address these issues at this time. This is because “‘[o]n appeal from
an order entering 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) (quoting River Walk Apartments, LLC v. Twigg, 396 Md. 527, 541-42 (2007))
(internal citations and quotation marks omitted).
Upon remand, the trial court should rule on the contentions raised by CEC.
THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE
ARUNDEL COUNTY IS REVERSED AND THIS CASE IS
REMANDED TO IT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. APPELLEES TO PAY COSTS.
23