Gilroy v. SVF Riva Annapolis LLC

Kehoe, J. 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 ¹⁰⁶ 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. Rappa-port 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 untime ¹⁰⁷ ly 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 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, 793 A.2d 579 (2002), which indicates that the subsection (d) exceptions apply only to asbestos-related claims. (We will discuss Hagers-town 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 ¹⁰⁸ disputes of material fact before the circuit court. Koste v. Town of Oxford, 431 Md. 14, 24-25 , 63 A.3d 582 (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, 63 A.3d 582 . Whether the circuit 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 , 130 A.3d 406 (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 , 152 A.3d 712 (2017) (quoting Douglas v. State, 423 Md. 156, 178 , 31 A.3d 250 (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 ¹⁰⁹ 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 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 , 643 A.2d 906 (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 , 46 A.3d 426 (2012). 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. ¹¹⁰ (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, 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; ¹¹¹ 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.

(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 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 ¹¹² 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 , 16 A.3d 991 (2011) (quoting Reier v. State Department of Assessments and Taxation, 397 Md. 2, 32 , 915 A.2d 970 (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.

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. ¹¹³ 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 , 499 A.2d 178 (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 , 499 A.2d 178 (citations omitted); see also Anderson v. United States, 427 Md. at 118 , 46 A.3d 426 (“The label of statute of repose is used generally to describe a statute which ¹¹⁴ shelters 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. 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 , 499 A.2d 178 (1985) (summarizing the statutory history); Rose v. Fox Pool Corp., 335 Md. 351, 366-367 , 643 A.2d 906 ¹¹⁵ (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. (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. ¹¹⁶ 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 , 643 A.2d 906 , 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 , 643 A.2d 906 . 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 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 ¹¹⁷ 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