Duffy v. CBS Corp.

Woodward, C.J. 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 ⁶⁰⁷ our review, which we have consolidated into the following question: 2 Did the circuit court err in granting CBS’s motion for summary judgment? 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 (“Pepeo”) to sell a turbine generator for Pepco’s Morgantown Generating Station (“Morgantown”) in Woodzell, Maryland.

Pepeo 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 mesotheli-oma. 3 According to Piper, his mesothelioma was caused by ⁶⁰⁸ inhalation of asbestos fibers during his career as a 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. ⁶⁰⁹ 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 [.] [[Image here]] [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] (8) 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 , 112 A.3d 429 (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 , 154 A.3d 1211 (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.

Ac ⁶¹⁰ cordingly, at the time Piper noted his appeal, it was premature. 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. Medtronic, Inc., 219 Md.App. 485 , 506 n. 5, 101 A.3d 467 (2014) (finding “[ajlternatively, because the circuit court’s order effectively became final when the [appellants] dismissed their claims against Dr. Rosner ⁶¹¹ 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 , 126 A.3d 753 (2015) (quoting Koste v. Town of Oxford, 431 Md. 14, 24-25 , 63 A.3d 582 (2013)), cert. denied, 446 Md. 705 , 133 A.3d 1110 (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 June 28, 1970; (2) Morgantown’s Unit 1 ⁶¹² 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. [[Image here]] (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 , 643 A.2d 906 (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. Insurance Comm’r, 332 Md. 124, 131 , 630 A.2d 713, 717 (1993). Every statute is enacted to further some underlying goal or purpose— ⁶¹³ “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): [0]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 ⁶¹⁴ 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 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, 643 A.2d 906 (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 , 643 A.2d 906 . 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] ⁶¹⁵ cause of action for an injury described in this section accrues when the injury or damage occurs.” In Burns v. Bechtel Corp., 212 Md.App. 237 , 66 A.3d 1187 , cert. denied, 434 Md. 312 , 75 A.3d 317 (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 , 66 A.3d 1187 (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 ⁶¹⁶ provision of the Act shall not apply to actions accruing prior to its effective date. 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 ⁶¹⁷ date his that injury arose by arguing that the date 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-retroac-tivity 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 , 998 A.2d 383 (2010), aff'd, 419 Md. 687 , 20 A.3d 787 (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 retroac-tivity provisions of a statute that