Harig v. Johns-Manville Products Corp.

Murphy, C. J., delivered the opinion of the Court. Pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), §§ 12-601 to 12-609 of the Courts and Judicial Proceedings Article, the United States District Court for the District of Maryland has certified for our consideration two questions of law: 1. At what time does a plaintiff’s cause of action for negligence accrue when plaintiff developed a disease in late 1975 or early 1976, allegedly as a result of exposure during the period 1940-55 to a deleterious substance allegedly occasioned by defendant’s negligence? 2. At what time does a plaintiff’s cause of action for strict liability accrue when plaintiff developed a disease in late 1975 or early 1976, allegedly as a result of exposure during the period 1940-55 to a deleterious substance emanating from defendant’s products?

For reasons that follow, we hold that a plaintiff’s cause of action for latent disease, whether framed in terms of negligence or strict liability, accrues when he discovers, or through the exercise of reasonable care and diligence should have discovered, the nature and cause of his disability or impairment. Our decision in this matter is premised upon an analysis of the rationale underlying the applicable statute of ⁷² limitations, considered in conjunction with authoritative case law construing when a cause of action accrues. Frances Harig, the designated appellant in this proceeding, instituted a civil action in the United States District Court for the District of Maryland on May 23,1977 against the appellee Johns-Manville Products Corporation (Johns-Manville), alleging that she developed a disease in late 1975 or early 1976 as a result of exposure to the appellee’s asbestos products from 1940 through 1955. During the period 1940-55 (except for a short period as a federal employee in Washington, D.C.), Mrs. Harig was employed as a secretary for Reid-Hayden, Inc. (Reid-Hayden), a Baltimore firm engaged in the purchasing, fabrication, sale and installation of asbestos products.

Johns-Manville mines, processes and sells products containing asbestos to independent fabricators who then shape, cut and otherwise create a finished product for their customers’ needs. During the period 1940-55, Johns-Manville sold products containing asbestos to Reid-Hayden, which fabricated them into finished products. Most of these products were fabricated and some were warehoused two stories above the office where Mrs. Harig was employed as a secretary. In addition, Reid-Hayden also warehoused other products containing asbestos in other buildings on its premises.

Mrs. Harig alleged in her complaint that part of her secretarial duties with Reid-Hayden required her to enter areas where employees of the firm were working with products containing asbestos, as well as handling files that had been exposed to asbestos dust. It was during the course of this employment that Mrs. Harig alleges that she was exposed to Johns-Manville’s asbestos products. It is alleged that that exposure directly and proximately caused her to develop a malignant mesothelioma, described as a cancer of the pleura and pericardium. Mrs. Harig left the employ of Reid-Hayden in January of 1955 and since that date has had no known asbestos exposure.

At no time during the course of her employment with ⁷³ Reid-Hayden or subsequent thereto, did Mrs. Harig ever purchase or work directly with any of Johns-Manville’s products. After leaving Reid-Hayden, Mrs. Harig was employed by the Western Maryland Railway Co. She retired on June 1, 1977. Until November, 1975, Mrs. Harig claimed to be in good health. But soon thereafter she developed a cough.

In 1976, she was hospitalized on three occasions. On October 27,1976 her condition was diagnosed as malignant mesothelioma, and she was so advised by her physicians. Mrs. Harig alleges that she did not suffer any consequential damages from her exposure to products containing asbestos until after 1975. The complaint filed in the District Court consisted of three counts and sought both compensatory and punitive damages.

Count I alleged negligence; Count II alleged a breach of warranty; and Count III alleged strict liability due to Johns-Manville’s sale of its products in a defective and dangerous condition. Johns-Manville raised the defense that the claim was barred by limitations. On March 2, 1978 the District Court dismissed Count II and the punitive damage claim as to Count III. It concluded, however, that with regard to the applicable statute of limitations “there are involved in this case two questions of law of the State of Maryland, the answers to which may be determinative of this case.” Finding that “there are no controlling precedents among the decisions of the Court of Appeals of Maryland as to those questions,” the District Court certified the two questions previously set forth concerning the time at which a cause of action accrues in situations involving the latent development of disease.

Code, § 5-101 of the Courts Article provides: “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period.” Mrs. Harig contends that because of the latent nature of her illness, her cause of action, whether framed in terms of traditional negligence concepts or in terms of strict liability, did not accrue until she knew or reasonably should have known of the injury — at the earliest when the cough developed in 1975. She urges that we so construe the statute and thereby apply the “discovery rule,” previously ⁷⁴ recognized in Maryland, but heretofore limited to cases of professional malpractice. 1 See, e.g., Watson v. Dorsey, 265 Md. 509 , 290 A. 2d 530 (1972); Leonhart v. Atkinson, 265 Md. 219 , 289 A. 2d 1 (1972); Steelworkers Holding Co. v. Menefee, 255 Md. 440 , 258 A. 2d 177 (1969); Feldman v. Granger, 255 Md. 288 , 257 A. 2d 421 (1969); Mumford v. Staton, Whaley & Price, 254 Md. 697 , 255 A. 2d 359 (1969); Mattingly v. Hopkins, 254 Md. 88 , 253 A. 2d 904 (1969); Waldman v. Rohrbaugh, 241 Md. 137 , 215 A. 2d 825 (1966); Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917). In the alternative, Mrs. Harig argues that her cause of action did not accrue until she suffered consequential damages because, until that time, she could not have maintained either her negligence or strict liability action to a successful result. Johns-Manville contends that the statute of limitations began to run, at the latest, when Mrs. Harig was last exposed to its asbestos products.

It characterizes Mrs. Harig’s latent disease as “[l]ater injurious developments . . . merely elements of damage ... not in and of themselves individual causes of action.” Under this construction, Mrs. Harig’s cause of action would have been time-barred three years after she left Reid-Hayden. I In a case in which limitations is an issue, it is necessary to ascertain the date from which the cause of action accrues. The certified questions involve the determination of when a cause of action accrues in situations in which the occurrence of a wrong (exposure to a deleterious substance) and the subsequent development and discovery of a latent disease are not contemporaneous. Judge Finan, speaking for the Court in Mattingly v. Hopkins, 254 Md. 88, 92-93 , 253 A. 2d 904 ⁷⁵ (1969), underscored the complexities of such issues in these words: “Like most general rules of law, those pertaining to ‘limitations’ become less than profound when an attempt is made to apply them to specific cases.

Much has been written as to when ‘limitations’ should start to run. Some courts have held the cause of action accrues when the defendant commits his wrong, others when the plaintiff discovers the wrong, and still others have held that it does not accrue until the maturation of harm. Sometimes the happening of the wrong, the knowledge of it and the maturation of the harm are simultaneous. When this occurs the recognition of the accrual of the cause of action is simple, when these elements happen sequentially it can become complex.

Furthermore, there are nuances of difference in the accrual of the cause of action in cases arising out of actions ex contractu, as distinguished from actions ex delicto, and a further hybridization of actions arising out of professional malpractice and otherwise.” While § 5-101 mandates when suit on a civil action at law is foreclosed, it does not define the word “accrues” and thus does not indicate when the three-year time period is triggered. Absent such statutory definition, the question of when a cause of action accrues is left to judicial determination. Raymond v. Eli Lilly & Co., 117 N. H. 164, 371 A. 2d 170, 172 (1977); Berry v. Branner, 245 Or. 307 , 421 P. 2d 996, 999 (1966); Jones v. Sugar, 18 Md. App. 99, 105 , 305 A. 2d 219 (1973). See 1 H. Wood, Limitation of Actions, 685, 686 (4th ed. 1916); Developments in the Law — Statutes of Limitations, 63 Harv.

L. Rev. 1177 , 1203-1205 (1950) [hereinafter cited as Developments in the Law]. The determination is properly made with reference to the rationale underlying statutes of limitations. These purposes include encouraging promptness in instituting actions, suppressing stale or fraudulent claims, and avoiding inconvenience which may stem from delay when it is practicable to assert rights. Morgan v. Grace Hospital, ⁷⁶ Inc., 149 W. Va. 783 , 144 S.E.2d 156, 161 (1965).

The chief consideration is fairness to the defendant — providing assurance that no ancient obligations remain, and relieving him of defending against a claim after “evidence has been lost, memories have faded, and witnesses have disappeared.” Order of R.R. Telegraphers v. Railway Express Agency, 321 U. S. 342, 349 , 64 S. Ct. 582 , 88 L. Ed. 788 (1944). See also Callahan, Statutes of Limitations — Background, 16 Ohio St. L.J. 130 (1955). Our own cases emphasize that the adoption of statutes of limitations reflect a policy decision regarding what constitutes an “adequate period of time” for “a person of ordinary diligence” to pursue his claim. Walko Corp. v. Burger Chef Systems, Inc., 281 Md. 207, 215 , 378 A. 2d 1100 (1977); McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 159 , 40 A. 2d 313 (1944).

In Maryland, the general rule is that limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time the wrong is discovered. Killen v. Geo. Wash. Cemetery, 231 Md. 337 , 190 A. 2d 247 (1963).

The legislature has promulgated exceptions to this general rule. See, e.g., Code (1974) §§ 5-102 (c), 5-104 (b), 5-201, 5-203 of the Courts Article. None of these exceptions is applicable to the present case. Our predecessors have recognized two other departures from the general rule: the continuation of events theory and the discovery rule.

Compare Vincent v. Palmer, 179 Md. 365 , 19 A. 2d 183 (1941) and W., B. & A. Elec. R.R. Co. v. Moss, 130 Md. 198 , 100 A. 86 (1917) (adopting the continuation of. events theory) with Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917) (applying the discovery rule to a medical malpractice claim). Only the latter exception concerns us here. Ordinarily, a potential tort plaintiff is immediately aware that he has been wronged.

He therefore is put on notice that the statute of limitations begins to run from the date of the alleged wrong. R. J. Reynolds Tobacco Co. v. Hudson, 314 F. 2d 776, 781-782 (5th Cir. 1963). Our predecessors recognized, however, that in professional malpractice cases, the fact that a tort has been committed may go unnoticed for years, because the plaintiff is unqualified to ascertain the initial ⁷⁷ wrong and could not reasonably be expected to know of the tort until actual injury is experienced. Waldman v. Rohrbaugh, 241 Md. 137 , 215 A. 2d 825 (1966).

The inherently unknowable character of this type of cause of action, coupled with the peculiarly harsh consequences of adherence to the general rule of accrual from the date of the “wrong,” prompted our predecessors to recognize the discovery principle in determining when a cause of action accrues for latent injury resulting from professional malpractice. Other jurisdictions have applied the discovery rule, in various factual situations, for similar or analogous reasons. One such theory is that a cause of action simply cannot exist until there has been an injury or consequential damage which is discoverable by a reasonably prudent plaintiff. Ayers v. Morgan, 397 Pa. 282 , 154 A. 2d 788, 792 (1959).

Other courts simply emphasize that a contrary result does violence to the purpose of statutes of limitation, because a plaintiff who could not have known of his cause of action cannot be accused of slumbering on his rights. E.g., Urie v. Thompson, 337 U. S. 163, 170 , 69 S. Ct. 1018 , 93 L. Ed. 1282 (1949); Raymond v. Eli Lilly & Co., 117 N. H. 164, 371 A. 2d 170, 173-74 (1977); Berry v. Branner, 245 Or. 307 , 421 P. 2d 996, 998-99 (1966). In this regard, one commentator has stated that “[a]s between the duly diligent plaintiff and the wrongdoer, the courts have been unnecessarily sympathetic towards the latter, in shortening the period in which it is likely that the plaintiff will bring an action or in entirely depriving the plaintiff of a practical remedy.” Developments in the Law, 63 Harv. L. Rev. at 1205.

Those courts applying the discovery rule consider any unfairness to the defendant as either outweighed by, or at least to be measured against, the unfairness of depriving a reasonably prudent plaintiff of an opportunity to present his claim. Raymond v. Eli Lilly & Co., 117 N. H. 164, 371 A. 2d 170, 176-77 (1977); Lopez v. Swyer, 62 N. J. 267, 300 A. 2d 563, 567 (1973). 2 ⁷⁸ Maryland first recognized the discovery rule in Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917), a medical malpractice case. Although the plaintiffs recovery in Hahn was barred by the limitations statute, because she had, in fact, discovered her injury more than three years prior to the filing of suit, the Court enunciated the rule as follows: “The ground of the cause of action in this case, was the discoloration of the plaintiffs skin by the use of the drug called argentum oxide, and the statute began to run from the time of- the discovery of the alleged injury therefrom.” Id. at 187 . The Hahn decision formed the basis for subsequent application of the discovery rule to an action for negligent design and construction of a wall.

Callahan