Furst v. Isom

ROBERT M. BELL, Judge. At issue on this appeal by Jeanne M. Furst, Personal Representative of the Estate of William K. Furst, appellant, 1 is the propriety of the judgment of the Circuit Court for Prince George’s County, granting the motion to vacate, 2 filed by Mr. and Mrs. Eddie Isom, appellees, and remanding the case to the Health Claims Arbitration Office for further proceedings. 3 We shall hold that the trial court ruled properly; hence, we will affirm. ⁴⁰⁹ The facts out of which this appeal has arisen are largely not in dispute. Appellees are the surviving parents and personal representatives of the Estate of Tybal Isom, who died on August 12, 1985, while a patient at Southern Maryland Hospital Center. Believing that appellant, the decedent’s attending physician, the hospital, and Dr. James Smit failed to render proper medical care, which accounted for her death, appellees filed a statement of claim with the Health Claims Arbitration Office.

Notwithstanding appellees’ counsel’s belief that he had attached to the claim a letter from a qualified expert certifying to the merits of the claim, see Maryland Cts. & Jud.Proc.Code Ann. § 3-2A-04(b)(l), a certificate of qualified expert, required to be filed within 90 days of the filing of the statement of claim, was not filed with the Health Claims Arbitration Office until October 29, 1987. Because the 90th day following the filing of the statement of claim fell on October 12, 1987, it was filed 17 days late. Appellant promptly moved, on October 30, 1987, to dismiss appellees’ action for violation of § 3-2A-04(b)(l). His motion was denied on January 19, 1988, the panel chairman finding that appellees had shown good cause for their failure timely to file the certificate of a qualified expert.

The three year statute of limitations applicable to this case see Maryland Cts. & Jud.Proc.Code Ann. § 5-109(a), expired on August 11, 1988. Before that time, on July 14, 1988, this Court filed its opinion in Robinson v. Pleet, 76 Md.App. 173 , 544 A.2d 1 , cert. denied, 313 Md. 689 , 548 A.2d 128 (1988). We held that failure timely to file the certificate of qualified expert mandates dismissal of the action. ⁴¹⁰ Armed with the Pleet decision, appellant filed a second motion to dismiss, which the panel chairman granted. Appellees immediately filed with the arbitration office a second statement of claim alleging the same cause of action.

That action was dismissed, by the panel chairman, on grounds of limitation. The panel chairman then issued a Final Order of Award in favor of appellant. As we have seen, appellees filed, in the Circuit Court for Prince George’s. County, inter alia, a petition and preliminary motion to vacate the arbitration award.

The motion was granted following oral argument off the record in chambers. Appellant’s subsequently filed motion for reconsideration was denied. Appellant argues, relying on Pleet , that the panel chairman properly granted his second motion to dismiss appellees’ claim. He reasons 4 that, given the strong public policy in favor of requiring litigants to follow the special statutory procedure, see Pleet, 76 Md.App. at 179 , 544 A.2d 1 and the clear and unambiguous language of § 3-2A-04(b)(l), the panel chairman had no discretion to forgive noncompliance with the statute, but, in fact, was required to dismiss the action once it was determined that both the certificate, and the request for extension of time, had been untimely filed.

As we have indicated, the panel chairman granted two motions to dismiss. He granted the first when Pleet was brought to his attention, causing him to recognize that his ⁴¹¹ prior decision on appellant’s first motion to dismiss was incorrectly decided. That dismissal was, as the statute prescribes, “without prejudice.” The second motion to dismiss granted by the panel chairman involved appellees’ refiled statement of claim. The effect of that ruling was to terminate appellees’ cause of action, to put them out of court without further remedy.

It is, thus, that ruling — the one relating to the refiled claim — that is of critical importance on this appeal. And it is that ruling at which appellees’ motion to vacate was directed. Critical to appellant’s argument that the motion to vacate was improperly granted (even though appellant does not explicitly state it) is the proposition “that when the Statute of Limitations once begins to run, nothing will stop or impede its operation,” Walko Corp. v. Burger Chef, 281 Md. 207, 210 , 378 A.2d 1100 (1977), quoting Ruff v. Bull, 7 H. & J. 14, 16 (1825), absent “a saving,” 5 or other, statute which would serve to preserve an action, timely filed, but dismissed on a technical ground. Indeed, just that point was made in Walko Corp., supra.

In Walko Corp., the question whether the mere filing of an action in one jurisdiction tolls the statute of limitations with respect to a second action, involving the same claim, filed in another jurisdiction, was certified by the District Court for the District of Columbia to the Court of Appeals for decision. In that case, Walko moved to intervene as plaintiff in a lawsuit then pending in the District of Columbia Court. After the motion to intervene had been pending for almost 60 days, that Court denied it. Forty-four days later, Walko filed an action, almost identical to the complaint accompanying the unsuccessful motion to intervene, in the United States District Court for the District of ⁴¹² Maryland. 6 Burger Chef’s motion for summary judgment on limitation grounds was granted, the court determining that the cause of action accrued more than three years prior to its filing.

Walko argued on appeal that the statute of limitations was tolled while its motion to intervene in the District of Columbia Court was pending. The Court of Appeals rejected the argument, reiterating the “rigorous stance” Maryland courts have taken regarding the running of statutes of limitations: once begun, they are not stopped or impeded in the absence of a “saving” statute. Then, observing that Maryland is one of the minority of states without a “saving” statute, 281 Md. at 211, n. 2 , 378 A.2d 1100 , the Court stated emphatically that “[ajbsent a statutory provision saving the plaintiff’s rights, the remedy is barred where limitations has run during the pendency of the defective suit.” 281 Md. at 211-212 , 378 A.2d 1100 (footnote omitted). Consequently, the Court held that, “in cases such as the one at bar where an action filed initially within the required period fails for some technical, procedural defect falling short of a full decision on the merits,” 281 Md. at 211 , 378 A.2d 1100 , and limitations run during the pendency of that procedurally defective action, a second suit based on the same cause of action is properly dismissed.

The Court considered, but rejected, Walko’s argument that the purpose of the statute of limitations was served because, it gave Burger Chef notice of its cause of action when it filed the motion to intervene, along with a complaint, almost identical to the one it ultimately filed. The Court recognized that “at first blush, Bertonazzi v. Hillman, Adm’x, 241 Md. 361 , 216 A.2d 723 (1966), would appear to stand as authority for the broad proposition that under Maryland law the running of the limitations period is tolled by a procedurally defective action which is timely ⁴¹³ filed.” 281 Md. at 213 , 216 A.2d 723 . It determined, nevertheless, that special circumstances that existed in that case were not present in the case before it. 281 Md. at 214 , 216 A.2d 723 . It concluded, “Bertonazzi stands alone ... confined to the special circumstances which culminated in the filing of the suit in the wrong county.” Id 7 In addition, the Walko Court relied upon policy considerations applicable to that case, which it determined, in any event, militated against permitting limitations to be tolled on the basis of the notice given in such a circumstance.

As to that, the Court stated that, allowing a plaintiff to toll the statutes by filing a suit, later determined to be procedurally defective, would result in the effective postponement of the running of the statute of limitations for an indefinite period. Furthermore, it was satisfied that, on the facts there presented — when Walko’s motion to intervene was denied the statute of limitations had not yet run, yet no separate, timely action was filed before limitations expired and no reason was given either for that omission or for the failure to file such action during the 60 days in which the motion to intervene was pending — Walko had not demonstrated the “ordinary diligence required of one seeking to toll the statute of limitations.” 281 Md. at 215 , 216 A.2d 723 . ⁴¹⁴ This Court has reached the identical result in a case in which the issue presented was whether the statute of limitations was tolled by the filing in the same court of a third party complaint, ultimately dismissed, involving exactly the same parties, the same facts and the same claims. See Bennett v. Baskin & Sears, 77 Md.App. 56 , 549 A.2d 393 (1988). The issue before us does not involve the broad proposition advanced by Walko Corp. and Bennett .

And, while the action sub judice was, indeed, found to be procedurally defective and that was the effective cause of its dismissal, it is the timing of, and the circumstances surrounding, the dismissal that is of importance here. It is important also that the deficiency was corrected almost immediately upon its determination. Furthermore, any defect in the action existed when the action was filed. It follows, therefore, that when the panel chairman first ruled on appellant’s motion to dismiss premised on that deficiency, the situation was no different than it was when he ruled on his second motion to dismiss.

When the panel chairman ruled that the complaint, though defective, should not be dismissed because good cause had been shown for the failure strictly to comply with the statute, there was time remaining in the statute of limitations and, therefore, appellees could have refiled their complaint in full compliance with the statute. Viewed from this perspective, it would have been to appellees’ advantage for the panel chairman correctly to have decided the issue because, then, they would have been able, by acting at that point, to immunize their claim from attack on procedural grounds. Appellees relied on the panel chairman’s ruling and did not refile their claim, 8 which, in its original form, continued ⁴¹⁵ to be processed in the arbitration forum. Appellant did not appeal the ruling, nor could he, since it was neither a final judgment, see Maryland Rule 2-601; Maryland Cts. & Jud.

Proc.Code Ann. § 12-301; Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989), nor appealable as a “collateral order.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47 , 69 S.Ct. 1221, 1225-26 , 93 L.Ed. 1528 (1949); Peat & Co. v. Los Angeles Rams, 284 Md. 86, 92 , 394 A.2d 801 (1978). In short, the case sub judice is factually distinguishable from Walko and Bennett . We will hold that, under the circumstances here presented, the trial court quite properly granted appellees’ motion to vacate. To do otherwise would result in the creation of the situation where the statute of limitations is “a shield for serious inequity.” Hosagai v. Kadota, 700 P.2d 1327, 1331 (Ariz.1985).

Although we expressly do not adopt the theory of equitable tolling, we do find its enunciation in Burnett v. New York Central Railroad Company, 380 U.S. 424 , 85 S.Ct. 1050 , 13 L.Ed.2d 941 (1965) and Hosagai, supra to be a useful framework which points the way to achieve this holding. See also Fox v. Eaton Corp., 615 F.2d 716, 719-20 (6th Cir.1980); Addison v. State, 578 P.2d 941 (Calif.1978). In Burnett , the plaintiff, injured in Indiana while in the course of his employment with New York Central Railroad, brought an action in Ohio, pursuant to the Federal Employer’s Liability Act (FELA). While the Ohio court had jurisdiction of the action, it was an improper venue.

Thus, on motion of the defendant, the State court action was dismissed. A short time thereafter — eight days — the plaintiff filed an identical action in the Federal District Court for the District of Ohio. That court dismissed it as untimely filed, the limitations period having run during the pendency of the State action. The 6th Circuit Court of Appeals affirmed and the Supreme Court, having issued certiorari, reversed. ⁴¹⁶ Perceiving the issue of when limitations are tolled as “one ‘of legislative intent whether the right shall be enforceable ... after the prescribed time,’ ” 380 U.S. at 426 , 85 S.Ct. at 1053 , quoting Midstate Horticultural Company v. Pennsylvania Railroad Company, 320 U.S. 356, 360 , 64 S.Ct. 128, 130 , 88 L.Ed. 96 (1943), the Court reviewed the purposes and policies underlying the limitations provisions in the FELA.

It said: Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them.” ... Moreover, the courts ought be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.

This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff’s rights. Thus, this