Duffy v. CBS Corp. , 232 Md. App. 602 ( 2017 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
______________________________________
No. 453
September Term, 2015
JUNE DIANE DUFFY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
JAMES F. PIPER
v.
CBS CORPORATION
______________________________________
No. 40
September Term, 2016
JUNE DIANE DUFFY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
JAMES F. PIPER
v.
CBS CORPORATION
______________________________________
Woodward, C.J.,
Kehoe,
Leahy,
JJ.
______________________________________
Opinion by Woodward, C.J.
______________________________________
Filed: May 31, 2017
In a complex, multi-party asbestos case brought by James F. Piper, appellant, 1 in
the Circuit Court for Baltimore City, CBS Corporation (“CBS”), appellee, filed a motion
for summary judgment, contending that the statute of repose barred Piper’s cause of action
against it. See Md. Code (1974, 2013 Repl. Vol.), § 5-108 of the Courts and Judicial
Proceedings Article (“CJP”). Following a hearing, the court granted CBS’s motion. Piper
noted this appeal, presenting three issues, for our review, which we have consolidated into
the following question: 2
Did the circuit court err in granting CBS’s motion for summary
judgment?
1
Appellant passed away on June 2, 2016. June Diane Duffy was appointed Personal
Representative of the Estate of James F. Piper on June 17, 2016, and a notice of substitution
was filed in the instant appeal on August 8, 2016.
2
Piper’s issues presented, as set forth in his brief, are as follows:
1. Whether the trial court erred in relying on this court’s
decision in Burns v. Bechtel Corp. to hold that [CBS] was
entitled to the benefit of repose set forth in Md. Cts. & Jud.
Pro. § 5-108.
2. Whether the trial court erred in holding that Md. Cts. & Jud.
Pro. § 5-108 could be applied retroactively to Mr. Piper’s
injurious exposure to asbestos that occurred prior to the
statute’s effective date.
3. Whether the trial court erred in failing to deem [CBS] a
manufacturer exempt from repose pursuant to Md. Cts. &
Jud. Pro. § 5-108(d)(2)(ii).
For the reasons stated below, we answer this question in the negative and affirm the
judgment of the circuit court.
BACKGROUND
CBS is a Delaware corporation that is the successor by merger to a Pennsylvania
corporation bearing the same name, which was formerly known as Westinghouse Electric
Corporation (“Westinghouse”). In early 1970, Westinghouse entered into a contract with
the Potomac Electric Power Company (“Pepco”) to sell a turbine generator for Pepco’s
Morgantown Generating Station (“Morgantown”) in Woodzell, Maryland. Pepco signed a
separate contract with Westinghouse for the installation of the turbine generator at the site.
The specifications in that installation contract called for the use of insulation containing
asbestos.
Piper worked as a steamfitter at Morgantown. Although he did not work directly
on the installation of the turbine generator, he worked in the vicinity of the workers
installing the turbine generator’s insulation. The last day workers installed such insulation
was June 28, 1970, and the turbine generator was operational by July of 1970.
On December 26, 2013, Piper was diagnosed with mesothelioma. 3 According to
Piper, his mesothelioma was caused by inhalation of asbestos fibers during his career as a
3
Mesothelioma is “a disease in which cancer (malignant) cells are found in the sac
lining the chest (the pleura) or abdomen (the peritoneum). This is a rare form of cancer
and most people with malignant mesothelioma have worked on jobs where they breathed
asbestos.” John Crane, Inc. v. Puller, 169 Md. App. 1, 19 n.1, cert. denied, 394 Md. 479(2006) (citation and internal quotation marks omitted).
2
steamfitter, which included the time that he worked at Morgantown. 4 On March 26, 2014,
Piper filed a complaint in the circuit court for damages caused by his exposure to asbestos. 5
On January 9, 2015, CBS filed a motion for summary judgment, alleging that Piper’s cause
of action against it was barred by the statute of repose. Following a hearing, the court
entered an order granting CBS’s motion on March 9, 2015. Piper thereafter noted this
appeal.
4
In his complaint, Piper alleges that in his career as a plumber and steamfitter, he
“served in the United States Navy from 1951 to 1954” and “worked with and/or was
exposed to asbestos products and/or protective equipment that were manufactured,
supplied and/or installed by the Defendants from 1948 to the late 1970s.”
5
The named defendants in Piper’s complaint were: (1) “3M Company, f/k/a
Minnesota Mining & Mfg. Co., n/k/a 3-M Corporation[;]” (2) “AC & R Insulation Co.,
Inc.[;]” (3) “A.O. Smith Corporation[;]” (4) “Avco Corporation (for its Spencer-Lycoming
Divison)[;]” (5) “Baltimore Aircoil Company, Inc.[;]” (6) “Burnham Corporation[;]” (7)
“Carrier Corporation[;]” (8) CBS; (9) “Certainteed Corporation (and as Sucessor in Interest
to Gustin Bacon)[;]” (10) “C.J. Coakley Co., Inc.[;]” (11) “Cleaver-Brooks, Inc. (a Division
of Aqua-Chem, Inc.)[;]” (12) “Crane Company, Inc. (and as Successor to Pacific Steel
Boiler)[;]” (13) “Crown Cork & Seal Company, Inc. Successor in Interest to Mundet Cork
Corp.[;] (14) “Federated Development, LLC (as Successor to Pacific Steel Boiler)[;]” (15)
“Georgia-Pacific, LLC f/k/a Georgia-Pacific[;]” (16) “Hampshire Industries, Inc. f/k/a
John J. Hampshire, Co., Inc.[;]” (17) “Ingersoll-Rand Company[;]” (18) “Kaiser Gypsum
Company, Inc.[;]” (19) “Krafft-Murphy Company[;]” (20) “MCIC, Incorporated, f/k/a
McCormick Asbestos Co.[;]” (21) “Metropolitan Life Insurance, Co.[;]” (22) “Noland
Company[;]” (23) “Oakfabco, Inc., f/k/a Kewanee Boiler Corporation[;]” (24) “Ric-Wil,
Inc.[;]” (25) “Sid Harvey Industries, Inc.[;]” (26) SPX Cooling Technologies, Inc., f/k/a
Marley Cooling Tower[;]” (27) “Superior Boiler Works, Inc.[;]” (28) “Thos. Somerville
Co.[;]” (29) “Trane U.S., Inc., as Successor to and f/k/a American Standard Companies,
Inc.[;]” (30) “Union Carbide Corporation[;]” (31) “Uniroyal, Inc.[;]” (32) “The Walter E.
Campbell Company, Inc.[;]” and (33) “Weil-McLain, Inc.”
3
PRELIMINARY MATTER
At the outset of this case, CBS contends that we should dismiss Piper’s appeal
because he appealed from a non-appealable order, and thus we lack jurisdiction. We deny
CBS’s motion and determine that we do have jurisdiction to hear this case.
The Court of Appeals has explained:
A fundamental principle of the statute that defines the jurisdiction of
the appellate courts is that, as a general rule, a party may appeal only
from “a final judgment entered in a civil or criminal case by a circuit
court.” CJ § 12–301[.]
***
[A] ruling must ordinarily have the following three attributes to be a
final judgment: (1) it must be intended by the court as an unqualified,
final disposition of the matter in controversy[;] (2) unless the court
acts pursuant to Maryland Rule 2–602(b) to direct the entry of a final
judgment as to less than all of the claims or all of the parties, it must
adjudicate or complete the adjudication of all claims against all
parties;[and] (3) it must be set forth and recorded in accordance with
Rule 2–601.
Metro Maint. Sys. S., Inc. v. Milburn, 442 Md. 289, 297-98 (2015). There are three
exceptions to the final judgment requirement: “(1) appeals from interlocutory orders
specifically allowed by statute; (2) immediate appeals permitted under Maryland Rule 2-
602; and (3) appeals from interlocutory rulings allowed under the common law collateral
order doctrine.” Md. Bd. of Physicians v. Geier, 451 Md. 526, 546 (2017).
The order granting CBS’s motion for summary judgment was not final when it was
entered, because it did not resolve all claims as to all parties in the instant case. Neither
did the order fall into one of the three exceptions listed above. Accordingly, at the time
Piper noted his appeal, it was premature.
4
After noting the appeal, however, Piper dismissed from the case the sole remaining
defendant, Walter E. Campbell Co., Inc., and asked the circuit court for an order entering
a final judgment. On February 8, 2016, the court granted the dismissal and issued the
requested order.
Maryland Rule 8-602(e) states, in relevant part:
(1) If the appellate court determines that the order from which the
appeal is taken was not a final judgment when the notice of
appeal was filed but that the lower court had discretion to direct
the entry of a final judgment pursuant to Rule 2-602(b),[ 6] the
appellate court, as it finds appropriate, may . . . (D) if a final
judgment was entered by the lower court after the notice of
appeal was filed, treat the notice of appeal as if filed on the
same day as, but after, the entry of the judgment.
(Emphasis added). Because a final judgment was entered by the trial court after Piper
noted his appeal, Rule 8-602(e)(1)(D) authorizes us to treat his notice of appeal as if it was
filed on the same day as the final judgment, but after the entry thereof. See McCormick v.
6
Maryland Rule 2-602(b) states:
If the court expressly determines in a written order that there is no
just reason for delay, it may direct in the order the entry of a final
judgment:
(1) as to one or more but fewer than all of the claims or
parties; or
(2) pursuant to Rule 2-501 (f)(3), for some but less than all of
the amount requested in a claim seeking money relief only.
(Emphasis added). We note that, at the conclusion of the hearing on CBS’s motion, Piper’s
counsel asked the circuit court to certify the judgment as final pursuant to Rule 2-602. The
court indicated a willingness to do so but expressed uncertainty as to the proper procedure.
Piper’s counsel stated that he would need to “look at the Rule,” and the court replied: “Take
a look and we’ll get back to it.” Neither Piper’s counsel nor the court ever got “back to it.”
5
Medtronic, Inc., 219 Md. App. 485, 506 n. 5 (2014) (finding “[a]lternatively, because the
circuit court’s order effectively became final when the [appellants] dismissed their claims
against Dr. Rosner with prejudice, we may treat their ‘notice of appeal as if filed on the
same day as, but after, the entry of the judgment.’ Md. Rule 8–602(e)(1)(D).”).
Accordingly, we have jurisdiction to address the merits of the instant appeal.
STANDARD OF REVIEW
Maryland appellate courts have explained:
“On review of an order granting summary judgment, our analysis
‘begins with the determination [of] whether a genuine dispute of
material fact exists; only in the absence of such a dispute will we
review questions of law.’ D’Aoust v. Diamond, 424 Md. 549, 574,
36 A.3d 941, 955 (2012) (quoting Appiah v. Hall, 416 Md. 533, 546,
7 A.3d 536, 544 (2010)); O’Connor v. Balt. Cnty., 382 Md. 102, 110,
854 A.2d 1191, 1196 (2004). If no genuine dispute of material fact
exists, this Court determines ‘whether the Circuit Court correctly
entered summary judgment as a matter of law.’ Anderson v. Council
of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560,
571, 948 A.2d 11, 18 (2008) (citations omitted). Thus, ‘[t]he
standard of review of a trial court’s grant of a motion for summary
judgment on the law is de novo, that is, whether the trial court’s legal
conclusions were legally correct.’ D’Aoust, 424 Md. at 574, 36 A.3d
at 955.”
James G. Davis Constr. Corp. v. Erie Ins. Exch., 226 Md. App. 25, 34-35 (2015) (quoting
Koste v. Town of Oxford, 431 Md. 14, 24–25 (2013)), cert. denied, 446 Md. 705 (2016).
DISCUSSION
I.
In the case, sub judice, the parties do not claim that there is a genuine dispute as to
any material fact. It is undisputed that (1) the last date of Piper’s exposure to asbestos dust
generated by the installation of insulation to Unit 1 turbine generator at Morgantown was
6
June 28, 1970; (2) Morgantown’s Unit 1 turbine generator, which was fabricated and
installed by Westinghouse, was substantially completed no later than July 1970; and (3)
Piper was diagnosed with mesothelioma on December 26, 2013. The primary issue in the
instant case is whether Piper’s cause of action against CBS is barred by the statute of
repose, CJP § 5-108, which is an issue of law. Resolution of that issue will require us to
engage in statutory construction of Section 5-108.
A.
The statute of repose, as codified in Section 5-108, provides, in relevant part:
(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.
***
(e) When action accrues. — A cause of action for an injury
described in this section accrues when the injury or damage
occurs.
(Emphasis added).
In Rose v. Fox Pool Corp., 335 Md. 351 (1994), Judge Irma Raker, writing for the
Court of Appeals, set forth the principles of statutory construction that guide us in
interpreting Section 5-108. Judge Raker wrote:
The issues raised in this appeal require us to discern the
meaning of § 5–108(a). The cardinal rule of statutory construction
is to effectuate and carry out legislative intent. See, e.g., Comptroller
v. Jameson, 332 Md. 723, 732, 633 A.2d 93, 97 (1993); Geico v.
7
Insurance Comm’r, 332 Md. 124, 131, 630 A.2d 713, 717 (1993).
Every statute is enacted to further some underlying goal or
purpose—“to advance some interest, to attain some end”—and must
be construed in accordance with its general purposes and policies.
Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628,
632 (1987); see also State v. Fabritz, 276 Md. 416, 421, 348 A.2d
275, 278 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48
L.Ed.2d 185 (1976). When called upon to construe a particular
statute, we begin our analysis with the statutory language itself
since the words of the statute, construed according to their
ordinary and natural import, are the primary source and most
persuasive evidence of legislative intent. Jameson, 332 Md. at 732,
633 A.2d at 97–98; Comptroller v. Fairchild Industries, 303 Md.
280, 284, 493 A.2d 341, 343 (1985). The statute must be construed
as a whole so that no word, clause, sentence or phrase is rendered
surplusage, superfluous, meaningless or nugatory. Condon v. State,
332 Md. 481, 491, 632 A.2d 753, 758 (1993); Md. Port Adm. v.
Brawner Contracting Co., 303 Md. 44, 60, 492 A.2d 281, 289
(1985).
When the language of a statute is plain and clear and
expresses a meaning consistent with the statute’s apparent
purpose, no further analysis of legislative intent is ordinarily
required. Kaczorowski, 309 Md. at 515, 525 A.2d at 633. As we
explained, however, in Morris v. Prince George’s County, 319 Md.
597, 573 A.2d 1346 (1990):
[O]ur endeavor is always to seek out the legislative purpose,
the general aim or policy, the ends to be accomplished, the
evils to be redressed by a particular enactment. In the conduct
of that enterprise, we are not limited to study of the statutory
language. The plain meaning rule “ ‘is not a complete, all-
sufficient rule for ascertaining a legislative intention. . . .’ ” The
“meaning of the plainest language” is controlled by the context
in which it appears. Thus, we are always free to look at the
context within which the statutory language appears. Even
when the words of a statute carry a definite meaning, we are
not “precluded from consulting legislative history as part of the
process of determining the legislative purpose or goal” of the
law.
319 Md. at 603–04, 573 A.2d at 1349 (citations and footnote
omitted); see also Baltimore Cty. C.A.U.T. v. Baltimore Cty., 321
8
Md. 184, 203–04, 582 A.2d 510, 519–20 (1990); Kaczorowski, 309
Md. at 513, 525 A.2d at 632. The legislative history of a statute,
including amendments that were considered and/or enacted as the
statute passed through the Legislature, and the statute’s relationship
to earlier and subsequent legislation are “external manifestations” or
“persuasive evidence” of legislative purpose that may be taken into
consideration. Maryland Nat’l Bank v. Pearce, 329 Md. 602, 619,
620 A.2d 941, 949 (1993) (quoting Kaczorowski, 309 Md. at 515,
525 A.2d at 632).
Id. at 358-60 (emphasis added).
As previously indicated, the primary issue before us in this appeal is whether the
statute of repose, Section 5-108, applies to Piper’s cause of action against CBS. Piper
however, does not base his argument for the non-applicability of the statute on “the
statutory language itself” of Section 5-108. See id. at 359. Yet, because we believe that
the language of the statute “is plain and clear[,]” we will begin our analysis with “the words
of the statute, construed according to their ordinary and natural import.” See id.
It is clear that Piper’s cause of action against CBS is based on “personal injury . . .
resulting from the defective and unsafe condition of an improvement to real property.” CJP
§ 5-108(a). Piper’s cause of action, however, is barred if the personal injury “occurs more
than 20 years after the date the entire improvement first becomes available for its intended
use.” Id. Here, because Morgantown Unit 1 turbine generator became operational by July
1970, Piper’s injury must have “occurred” on or before July of 1990 for his cause of action
to survive.
The date of Piper’s last exposure to asbestos dust from Unit 1 turbine generator was
June 28, 1970; but his mesothelioma was not diagnosed until 2013. Section 5-108(e) states
that “[a] cause of action for an injury described in this section accrues when the injury or
9
damage occurs.” In Burns v. Bechtel Corp., 212 Md. App. 237, cert. denied, 434 Md. 312(2013), this Court noted:
And as the Court of Appeals explained in Hilliard & Bartko Joint
Venture v. Fedco Sys., Inc., 309 Md. 147, 162, 522 A.2d 961 (1987),
the Statute of Repose incorporates the common law discovery rule
of accrual: “[T]he language of present subsection (e), equating
accrual with ‘when the injury or damage occurs,’ means when
the injury or damage is discovered.”
Id. at 243 (emphasis added). In the present case, Piper’s injury, mesothelioma, was
discovered, and thus “occurred,” in 2013, forty-three years after Unit 1 turbine generator
“first bec[a]me[] available for its intended use.” CJP § 5-108(a). Therefore, because
Piper’s cause of action did not accrue within 20 years of the placement into operation of
Unit 1 turbine generator, Section 5-108(a) applies to his cause of action and precludes its
prosecution against CBS.
B.
Piper, however, contends that his cause of action is not barred by the statute of
repose because of the statutory language used by the General Assembly when the statute
was originally enacted in 1970. Chapter 666 of the Acts of 1970 reads its entirety:
CHAPTER 666
(Senate Bill 241)
AN ACT to add new Section 20 to Article 57 of the Annotated Code
of Maryland (1968 Replacement Volume), title “Limitations
of Actions,” to follow immediately after Section 19 thereof,
to prohibit the bringing of actions based on injuries
arising out of defective conditions of improvements to real
property against certain persons after a specified period
of time and providing that the provision of the Act shall
not apply to actions accruing prior to its effective date.
10
SECTION 1. Be it enacted by the General Assembly of
Maryland, That new Section 20 be and it is hereby added to Article
57 of the Annotated Code of Maryland (1968 Replacement Volume),
title “Limitations of Actions,” to follow immediately after Section
19 thereof, and to read as follows:
20.
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 nine
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.
SEC. 2. And it be further enacted, That this Act shall not
apply to any cause of action arising on or before June 30, 1970.
SEC. 3. And it be further enacted, That this Act shall take
effect July 1, 1970.
Approved May 21, 1970.
(Italic emphasis in original) (bold emphasis added).
Piper contends that the circuit court erred in applying the statute of repose to bar his
cause of action against CBS, because his injury “arose” on June 28, 1970, and the session
law that passed the original statute of repose contained language indicating that the statute
does not apply to injuries arising on or before June 30, 1970. Piper notes that he agrees
with CBS that his injury “accrued” in 2013 when his injury was discovered, but
distinguishes the date of accrual from the date his that injury arose by arguing that the date
11
of accrual is irrelevant here. Furthermore, Piper argues that the statute of repose cannot be
applied retroactively to him, “because subsequent revisions and amendments to the statute
lack a ‘clear expression’ in favor of retroactivity.”
CBS responds that the circuit court correctly found that CBS was entitled to repose,
because Piper’s cause of action accrued more than twenty years after the improvement was
substantially completed. CBS asserts that Piper’s reliance on when his injury “arose” is
misplaced, because the anti-retroactivity language appearing in Section 2 of the session
law was not codified after the statute was enacted.
CBS is correct that, when Chapter 666 of the Acts of 1970 was codified in Article
57 § 20, Section 2 was not included. Piper, however, relies heavily on the case of Roe v.
Doe, 193 Md. App. 558 (2010), aff’d, 419 Md. 687 (2011), for the proposition that “the
uncodified sections of the statute of repose continue to carry the force of law.” In Roe, this
Court construed and applied the uncodified retroactivity provisions of a statute that
increased the limitations period from 3 years to 7 years for minor victims of sexual abuse
to bring an action for damages arising out of such abuse after attaining the age of majority.
Id. at 564-69. On appeal, the Court of Appeals affirmed our construction of the
retroactivity provision of Chapter 360 of the Acts of 2003. Doe v. Roe, 419 Md. 687, 699,
709-10 (2011). In so doing, the Court noted that the retroactivity provision of Chapter 360
had not been codified in CJP § 5-117. Id. at 699. In a footnote to that observation, the
Court stated:
See MARYLAND DEPARTMENT OF LEGISLATIVE
SERVICES, LEGISLATIVE DRAFTING MANUAL 2011, at 97
(2010) (“Provisions of law need not be codified in order to be legally
12
binding.”); Prince George’s County v. Maringo, 151 Md.App. 662,
671 n. 1, 828 A.2d 257, 262 n. 1 (2003) (“The parties do not dispute
that this uncodified portion of the bill has the same force and effect
as the codified portion.”).
Id. at 699 n. 11.
The problem with Piper’s reliance on Roe and Doe is that the uncodified
retroactivity provision of Chapter 360 was never subject to repeal and reenactment. Here,
Article 57, § 20, the codified version of Chapter 666, was repealed in 1974 and reenacted
as CJP § 5-108. See Hillard, 309 Md. at 160. Section 2 of Chapter 666 was not included
in CJP § 5-108. See id. at 160-61. Moreover, as pointed out by CBS, “§ 5-108 was enacted
with substantive changes in its definition of scope and operation of the repose afforded
thereby.” See also id.
Nevertheless, Piper argues that, because (1) none of the amendments or revisions to
the statute of the repose expressly repealed Section 2, and (2) “there is a ‘strong
presumption’ against finding that a statutory revision implicitly repeals a section of a
statute absent ‘clear legislative intent [in] support,’” “the uncodified sections of the statute
of repose continue to carry the force of law.” We need not resolve the issue of Section 2’s
viability, because even if Section 2 of Chapter 666 retains “the force of law,” we conclude
that Piper’s cause of action is still barred by the statute of repose. We shall explain.
Under Section 2 of Chapter 666, the question is whether Piper’s cause of action
“arose” prior to July 1, 1970. To answer this question, we need to determine what the
General Assembly meant by the term “arising” in Section 2: does it mean, as Piper
contends, when one is exposed to asbestos, or does it mean, as CBS contends, when a cause
13
of action accrues, which, under the discovery rule, is the date that one discovers the injuries
caused by asbestos exposure? See Mathews v. Cassidy Turley Md., Inc., 435 Md. 584, 611
(2013) (Under the discovery rule, “a cause of action accrues when the wrong is discovered
or when with due diligence it should have been discovered.”).
In Hillard, the Court of Appeals set forth the history of CJP § 5-108, beginning with
the enactment of Chapter 666 of the Acts of 1970. 309 Md. at 160. Speaking for the Court,
Judge Lawrence Rodowsky wrote:
The predecessor to present § 5-108 was enacted by Ch. 666 of the
Acts of 1970. In the year preceding this enactment Steelworkers
Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 177 (1969) had
applied the discovery rule to determine accrual of a cause of action
for general statute of limitations purposes in a malpractice action
against an architect. That same year Mattingly v. Hopkins, 254 Md.
88, 253 A.2d 904 (1969) had held the discovery rule governed
accrual of a malpractice action against a professional engineer. The
discovery rule had earlier been applied in Callahan v. Clemens, 184
Md. 520, 41 A.2d 473 (1945) to the accrual of a cause of action by
an adjoining property owner against a contractor who had allegedly
negligently erected a wall. It was clear that one purpose of Ch.
666 was to set a time limit after which the discovery rule could
not operate.
Chapter 666 was modified as part of the Code revision project when
the Courts and Judicial Proceedings Article was enacted, effective
January 1, 1974. From a prohibition, “[n]o action . . . shall be
brought,” the language was changed to read in relevant part:
Except as provided by this section, no cause of action for
damages accrues . . . when . . . injury to real . . . property
resulting from the defective . . . 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. [Md.Code (1974), CJ § 5-108(a) (emphasis added).]
Present § 5-108(d) was subsection (b) in the 1974 enactment. The
1974 changes also added as subsection (c) the language now found
14
in (e) (“A cause of action for an injury described in this section
accrues when the injury or damage occurs.”).
Id. at 160-61 (italic emphasis in original) (bold emphasis added) (footnote omitted).
Because “one purpose of Chapter 666 was to set a time limit after which the
discovery rule could not operate[,]” id. at 160, a cause of action based on a latent defect or
injury that had not accrued under the discovery rule was cut off after twenty years from the
time the improvement first became available for its intended use. See id at 161-62. Piper’s
construction of the statute, however, would create a class of unaccrued causes of action
exempted from the statute where the latent defect or injury was present prior to July 1,
1970. Such a construction is contrary to the “clear” purpose of Chapter 666. See id. at
160.
In addition, in the preamble to Chapter 666, the General Assembly set forth the
purpose of Section 2 by stating “that the provision of the Act shall not apply to actions
accruing prior to its effective date.” (Emphasis added). Section 2 then states “[t]hat this
Act shall not apply to any cause of action arising on or before June 30, 1970.” (Emphasis
added). To construe the term “arising” in Section 2 to mean something different from the
term “accruing” in the preamble would create an ambiguity, if not an outright conflict,
between the purpose of Section 2, as expressed in the preamble, and the statutory language
of Section 2 implementing that purpose. Moreover, the distinction between when a cause
of action “arose” and when a cause of action “accrued” did not exist in Maryland case law
until sometime after the enactment of Chapter 666 in 1970 when personal injury cases
based on a disease with a long latency period, such as asbestos exposure cases, were
15
brought. See John Crane, Inc. v. Scribner, 369 Md. 369, 383, 390 (2002) (noting, for
purposes of the non-economic damages cap statute, which was passed in 1986, “the
distinction made by the Legislature between when an action arises and when it accrues”).
Piper’s argument that the two terms have distinct meanings, although correct today for
asbestos exposure cases, cannot be grafted onto the General Assembly’s intent in 1970
when the statute of repose was passed, because those terms had not yet been distinguished.
Finally, under the Maryland Constitution, the General Assembly cannot take away
vested property rights. See Md. Const. art. III, § 40, Md. Const. Declaration of Rights, Art.
19, 24. In general, a property right becomes vested only when it accrues. 7 See Dua v.
Comcast Cable of Md., Inc., 370 Md. 604, 632-33 (2002). (“[T]here normally is a vested
property right in a cause of action which has accrued prior to the legislative action.”).
7
Although his cause of action against CBS did not accrue prior to the enactment of
Chapter 666 in 1970, Piper argues that the application of the statute of repose to his
unaccrued action would be unconstitutional. A similar argument was rejected by the Court
of Appeals in Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340 (1985). In
Whiting-Turner, appellants claimed that Article 19 of the Maryland Declaration of Rights
was violated, because Section 5-108(b) cut off any claim for indemnity against an architect
or professional engineer “before a cause of action for indemnity could even have accrued.”
Id. at 359-60. The Court responded:
Chapter 698 of the Acts of 1979 which enacted subsections (b) and
(c) provided: “That this Act shall take effect July 1, 1979.” The
operative words of subsection (b) are that “[a] cause of action for
damages does not accrue and a person may not seek contribution or
indemnity. . . .” Consequently we cannot accept an alternative
argument advanced by CPC that subsection (b) applies only to
claims based on Injury where Completion occurred on or after
July 1, 1979.
Id. at 360 n.3 (emphasis added).
16
Because of such constitutional limitation, the preamble states that Chapter 666 does not
apply to causes of action “accruing prior to its effective date.” Section 2 of Chapter 666
implements that purpose so that the application of Chapter 666 will be constitutional.
There is nothing in the language of Chapter 666 to indicate that Section 2 goes beyond
protecting the statute’s constitutionality. Therefore, from the standpoint of Chapter 666’s
constitutionality, “arising” in Section 2 means “accruing.”
In sum, because of the history, language, and purpose of Chapter 666 of the Acts of
1970, we conclude that the term “arising” in Section 2 carries the same meaning as the
term “accruing:” the date that the injury is discovered. Accordingly, Section 2 does not
bar the application of the statute of repose to Piper’s cause of action.
II.
The statute of repose has an exemption for manufacturers in asbestos-related
litigation:
(2) This section does not apply if:
***
(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[.]
CJP § 5-108(d)(2)(ii) (emphasis added).
Piper contends that, if the statute of repose applies, CBS does not benefit from it,
because CBS is a manufacturer of asbestos, and thus falls within the statute’s exemption.
17
CBS responds that it is not a manufacturer, because the turbine generator installed at
Morgantown is not a “product,” and because CBS did not manufacture the injury-causing
asbestos used in the insulation. CBS also argues that, even if it is a manufacturer under
Section 5-108(d)(2), the application of that section’s exemption to Piper’s cause of action
would be unconstitutional, because such exemption was not enacted until 1991, which was
after Piper’s claim was barred on July 1, 1990. We agree with CBS that applying the
manufacturer’s exemption of the statute of repose to Piper’s claim would be
unconstitutional.
The Court of Appeals made clear in Dua that “[f]rom the earliest cases to the
present, this Court has consistently taken the position that retroactive legislation, depriving
persons or private entities of vested rights, violates the Maryland Constitution, regardless
of the reasonableness or ‘rational basis’ underlying the legislation.” 370 Md. at 625. One
such vested right is the right not to be sued on “a cause of action that was otherwise barred.”
Id. at 627 (“A statute, which retroactively created a cause of action, resulting in reviving a
cause of action that was otherwise barred, was held to deprive the defendant of property
rights in violation of Article 24 of the Declaration of Rights.” (citing Smith v. Westinghouse
Elec., 266 Md. 52, 57 (1972))).
In the case sub judice, Piper’s cause of action against CBS as to the turbine generator
was barred by the statute of repose prior to the enactment of the manufacturer’s exemption
in 1991. The turbine generator was completed in July of 1970. Pursuant to CJP § 5-108(a),
Piper’s cause of action would have had to “accrue” on or before July of 1990, for Piper to
avoid the bar of the statute. Both parties agree that Piper’s cause of action accrued on
18
December 26, 2013, when he was diagnosed with mesothelioma. Because Piper’s cause
of action accrued after July of 1990, CBS had a vested right in not being sued as of that
date. See Dua, 370 Md. at 627, 633. Accordingly, the 1991 amendment creating the
manufacturer’s exemption could not revive Piper’s claim against CBS, “a cause of action
that was otherwise barred.” Id. at 627.
CONCLUSION
In sum, the plain language of the statute of repose, CJP § 5-108, bars Piper’s cause
of action against CBS, because Piper’s cause of action accrued when his mesothelioma was
diagnosed in December 2013, which was more than twenty years after the turbine generator
installed by Westinghouse at Morgantown became operational in July of 1970. Section 2
of the original statute of repose, Chapter 666 of the Acts of 1970, which precluded
application of the statute to “any cause of action arising on or before June 30, 1970[,]”
does not apply to Piper’s cause of action, because the term “arising” means “accruing” in
the context of the history, language, and purpose of the statute. (Emphasis added). The
manufacturer’s exemption, set forth in Section 5-108(d)(2), also does not apply, because
the application of such exemption would unconstitutionally deprive CBS of its vested right
in not being sued for causes of action barred by the statute of repose prior to the
exemption’s enactment in 1991. Accordingly, the trial court did not err in granting CBS’s
motion for summary judgment.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
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