Leppo v. State Highway Administration

CHARLES E. ORTH, Jr., Judge, Specially Assigned. Once again we are called upon to divine what the Legislature intended when it enacted a statute. The statute with which we are concerned appears in the Maryland Code (1984, 1992 Cum.Supp.) § 12-106 of the State Government Article (SG) as part of the Maryland Tort Claims Act (MTCA). With certain exclusions and exceptions not here relevant, the Act waives the common law immunity the State enjoyed against tort action. 1 Subsection (a) of § 12-106 declares: ⁴¹⁹ This section does not apply to a claim that is asserted by cross-claim or counter-claim.

Subsection (b) provides: A claimant may not institute an action under this subtitle unless: (1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim; (2) the Treasurer or designee denies the claim finally; and (3) the action is filed within 1 year after the claim is denied finally or 3 years after the cause of action arises, whichever is later. We are asked to determine whether § 12-106 applies to third-party claims. We hold that such claims are not encompassed within the exceptions under subsection (a). Therefore, in order to institute an action under § 12-106, a third-party claimant must comply with the provisions of subsection (b).

I We chronologize this case to place it in clear perspective. May 25, 1988: There was a collision on Black Rock Road (Maryland Route 88) in Baltimore County between a station wagon driven by Jeanne Ann Blout and a truck owned by Gray & Sons, Inc., driven by Raymond Howell Leppo, II, an employee of Gray. 2 Mrs. Blout was severely injured. March 14, 1991: Mrs. Blout and her husband, Stanley Edward Blout, filed a tort action, arising in negligence, in the Circuit Court for Baltimore County, seeking damages from Leppo and Gray. ⁴²⁰ February 11, 1992: Leppo filed, in the Blouts’ action, a third-party complaint against the State of Maryland, Department of Transportation, State Highway Administration. February 26, 1992: The State filed a motion for summary judgment or alternatively, to dismiss with prejudice or strike Leppo’s third-party complaint.

Leppo answered. March 17, 1992: Leppo informed the State Treasurer by letter that he had filed an action as a third-party plaintiff against the State in the Blouts’ suit against him. He enclosed a copy of his third-party action. May 26, 1992: The Circuit Court for Baltimore County conducted a hearing on the State’s motion to dismiss the third-party complaint.

July 7, 1992: The Circuit Court for Baltimore County signed an order dismissing the third-party claim. A final judgment was entered against Leppo for costs. July 29, 1992: Leppo noted an appeal to the Court of Special Appeals. December 22, 1992: The Court of Appeals, on its own motion, certified the case to it before decision by the intermediate appellate court.

The State’s motion directed to the third-party complaint was primarily on the ground that Leppo had not complied with SG § 12-106(b). The State submitted an affidavit by the Director of the Insurance Division for the State Treasurer’s Office which handled all claims filed under the MTCA. The Director swore that “[t]his office has never received written notice of any tort claims that arise from or relate to the accident that is the basis of this case.” 3 Leppo responded to the State’s motion by way of an answer explicated by a supplemental answer. His position was that his claim was ⁴²¹ not barred by the 180-day written notice provision of the Maryland Tort Claims Act, Title 12, Section 12-106. “There is nothing in the provisions of the act to bar this claim, ...” he declared, and added in fact, the act specifically provides that notice is not required in cross-claims or counterclaims and the same reasoning would apply to third-party claims.

He cited to Cotham and Maldonado v. Board, 260 Md. 556 , 273 A.2d 115 (1971) in support of his position. In the circuit court, Leppo’s counsel declared that “the real question before the court is [the] 180-day notice provision.” The claim of Leppo in this case is a claim for contribution or indemnification. The Maryland Tort Claims Act doesn’t require a person that has right or claim against the State to subsequently file suit for indemnification. He referred to Cotham as holding that the 180-day period has no application in suits for contribution or indemnification.

The circuit court determined that the case was not governed by Cotham and therefore reliance had to be placed on the intent of the Legislature. The opinion of the judge then became lubricous: [T]he court somewhat hesitatingly finds that the legislative intent was to exclude third-party claims from the exceptions____ “[H]owever,” the judge observed, “this makes no logical sense whatsoever.” He quoted Cotham, 260 Md. at 567 , 273 A.2d 115 : “To hold that a person in his [third-party plaintiff] position is barred under this notice statute from recovery against the municipal corporation [here, State] would be to place in the hands of the plaintiff a determination of whether the defendant might be permitted to recover from the municipal corporation [here, State], because by the manipulation of the time of filing suit and the speed with which the plaintiff then proceeded, the plaintiff ⁴²² could easily place the potential third-party plaintiff outside the statutory period. He has no knowledge of a claim until suit is filed and has no claim until it ripens into being by payment.” The judge opined, citing to Simpson v. Moore, 323 Md. 215 , 592 A.2d 1090 (1991): The court cannot make an enlargement of a statute so that what was omitted, presumably by inadvertence, may be included. To supply omissions transcends the judicial function and the only course open under the circumstances is to note the problem and trust that the Legislature and/or the Court of Appeals will address it.

See 323 Md. at 226-228 , 592 A.2d 1090 . “For those reasons,” the final decision of the court was that the Legislature did not intend to exclude third-party claims from the notice requirement of Section 12-106(b).... Since Leppo “failed to meet that requirement,” the court granted the State’s motion to dismiss Leppo’s third-party complaint. II When a court is engaged in the divination of legislative “intent,” the key is the purpose of the legislation, determined in the light of the statute’s language and context. Kaczorowski v. City of Baltimore, 309 Md. 505, 516 , 525 A.2d 628 (1987).

When we look at the statutory language we apply the plain meaning of the words chosen by the Legislature. Scheve v. Shudder, 328 Md. 363, 371-372 , 614 A.2d 582 (1992); Revis v. Automobile Ins. Fund, 322 Md. 683, 686 , 589 A.2d 483 (1991). If the statutory language itself is insufficient to lead us comfortably to conclude what the Legislature intended, we look beyond the words and examine legislative history when it is available and the context of the legislation.

Warfield v. State, 315 Md. 474, 499-500 , 554 A.2d 1238 (1989). ⁴²³ A The plain language of SG § 12-106(b) undermines Leppo’s position. The 180-day requirement is a condition precedent to the institution of a third-party action against the State. Lopez v. State Highway Admin., 327 Md. 486, 490 , 610 A.2d 778 (1992); Simpson v. Moore, 323 Md. at 225 , 592 A.2d 1090 . As noted above, the only exceptions designated are cross-claims and counterclaims.

The General Assembly could have added third-party claims to this short list, but it chose not to do so. This Court may not “ ‘judicially place in the statute language which is not there’ in order to avoid a harsh result.” Simpson v. Moore, 323 Md. at 225 , 592 A.2d 1090 , quoting Cotham 260 Md. at 565 , 273 A.2d 115 . “Where a statute expressly provides for certain exclusions, others should not be inserted.” Pennsylvania Nat’l Mut. v. Gartelman, 288 Md. 151, 156 , 416 A.2d 734 (1980). We said in Ferrero Constr. v. Dennis Rourke Corp., 311 Md. 560, 575 , 536 A.2d 1137 (1988): “When the legislature has expressly enumerated certain exceptions to a principle, courts normally should be reluctant thereafter to create additional exceptions.” Such reasoning is in keeping with another maxim of statutory construction: expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). See Gay Investment v. Comi, 230 Md. 433, 438 , 187 A.2d 463 (1963); Johns v. Hodges, 62 Md. 525, 538 (1884).

B The legislative history of the MTCA furnishes strong support for the omission of third-party claims from the exception subsection of the Act. The bill file of the Senate Judicial Proceedings Committee on Senate Bill 585 contains a draft of the bill which eventually evolved into SG § 12-106. The draft included the following: (A)(1) Except as provided in paragraph (2) of this subsection, an action may not be instituted pursuant to this subtitle unless the claimant has first presented the claim ⁴²⁴ in writing to the State Treasurer or his designee and the claim has been denied in writing____ (2) The provisions of paragraph (1) of this subsection do not apply to claims asserted under the Maryland Rules of Procedure by third-party declaration, cross-claim, or counterclaim. (Emphasis added).

The version that made its way through the democratic process, see Acts 1981, ch. 298, referred only to “cross-claim or counterclaim” and made no mention of a “third-party claim.” In the evolution of the Act to its present form despite legislative action by way of amendments, revisions and its transfer from the Courts and Judicial Proceedings Article to the State Government article, “third-party claim” never again was included with “cross-claim” and “counterclaim” as exceptions to the provisions for instituting an action under the Act. This is strong evidence that the Legislature intended that third-party claimants be subject to the notice requirement. See Kaczorowski, 309 Md. at 514-515 , 525 A.2d 628 to the effect that amendments occurring as a bill progresses through the General Assembly fairly bear on the fundamental issue of legislative purpose or goal. C Congress enacted the Federal Tort Claims Act (FTCA) in 1946 as a partial abrogation of the national government’s sovereign immunity.

The FTCA has served as a model for nationwide modification of the sovereign immunity doctrine. [I]n response to the pleas on the various policy grounds, the doctrine [of sovereign immunity] has undergone considerable erosion---- The most popular form of legislative modification is a Tort Claims Act patterned after the federal Tort Claims Act passed in 1946. Testimony of Carl E. Eastwick, Chief Legislative Officer, regarding S.B. 585 which was the primal act of what is now SG § 12-106. Although the MTCA is not modeled after the FTCA, and the present form of § 12-106 does not mirror the FTCA, the Legislature was aware of the FTCA as ⁴²⁵ indicated by Eastwick’s testimony. A comparison of the two statutes is enlightening in interpreting SG § 12-106(a).

At the time the MTCA became law, the FTCA provided: An action shall not be instituted against the United States for money damages for injury or loss of property or persona] injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C., § 2675 (a). The federal statute continued: The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. Id.

(emphasis added). As we have noted, the counterpart of the present SG § 12-106 was originally codified in the Courts and Judicial Proceedings Article of the Maryland Code as § 5-406(a). Section 2675(a) of the FTCA and § 5-406(a) were similar but had one significant difference. The Maryland statute, like the federal statute, excepted a cross-claim and a counterclaim from the requirement of notice by the Maryland statute, but, unlike the federal statute, did not include a third-party claim in its notice exceptions.

The present SG § 12-106(a), as we have seen, preserved the omission of a third-party claim from the exceptions for notice. D Leppo’s reliance on Cotham is misplaced. Gotham was decided under the provisions of Md.Code (1957, 1970 Cum. Supp.) Art. 57, § 18, since repealed by Acts 1978, ch. 770. ⁴²⁶ See CJ § 5-404, formerly CJ § 5-306.

The statute at issue in that case governed actions against certain municipalities and counties. Durley Cotham, the original plaintiff in the