Lopez v. Maryland State Highway Administration

CHASANOW, Judge. On June 3, 1988, German H. Rodriguez and Helen Lopez were riding in a car on Sligo Creek Parkway in Montgomery County. An unidentified person stood on a bridge that crossed over the parkway and hurled a 30-pound boulder onto the couple’s car as they passed underneath. The boulder crashed through the windshield and killed German Rodriguez.

At the time of the accident Helen Lopez was pregnant with German’s child. Helen survived the assault, carried her pregnancy to full term, and over eight months later gave birth to a son, Herman Edwardo Rodriguez Lopez. Two weeks after the boy was born, Helen filed a claim with the Maryland State Treasurer on her son’s behalf for damages resulting from the death of his father. 1 For the sake of simplicity, we will refer to the infant plaintiff as Lopez. The basis of Lopez’ claim is that the Maryland State Highway Administration breached its duty to operate and maintain the bridge in a safe and reasonable manner. 2 The child’s claim arises under Maryland’s wrongful death ⁴⁸⁹ statute, Maryland Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, §§ 3-901 et seq.

In order to pursue this claim against the State, Lopez had to first comply with the provisions of the Maryland Tort Claims Act (MTCA), Md.Code (1984, 1991 Cum.Supp.), State Government Art., §§ 12-101 et seq. 3 When the legislature passed the MTCA and abrogated the State’s sovereign immunity, it imposed certain procedural requirements that must be met in order to maintain a common law or statutory tort claim against the State. Section 12-106(b) embodies a condition precedent to such an action: “A claimant may not institute an action under this subtitle unless ... 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.” The Lopez claim was filed with the Treasurer on March 16, 1989—16 days after his birth and 286 days after the death of his father. In a letter dated September 1, 1989, the State Treasurer denied his claim stating that she believed “that the State was not at fault” in his father’s death. Approximately six months later, Lopez filed a wrongful death action in the Circuit Court for Prince George’s County naming the Maryland State Highway Administration as a defendant.

The State countered with a motion for summary judgment arguing that Lopez had failed to file his claim with the Treasurer within 180 days of his father’s death and, therefore, he did not satisfy the § 12-106(b) condition precedent to bringing the action. Judge Joseph S. Casula felt constrained to accept the State’s contention and granted its motion for summary judgment, although he recognized that this interpretation was “harsh” and acknowledged that he would be “very happy to be reversed” on appeal. Lopez appealed the grant of summary judgment and we issued a writ of certiorari before the case was argued to the Court of Special Appeals. ⁴⁹⁰ The parties do not dispute that a claimant must satisfy the requirement of § 12-106 as a condition precedent to pursuing a claim against the State. See Simpson v. Moore, 323 Md. 215, 225 , 592 A.2d 1090, 1094-95 (1991).

Lopez’ primary argument is that the trial court erred in holding that the 180-day period in § 12-106(b) began to run at the time of his father’s death. The language of § 12-106(b) states that a claim must be submitted to the Treasurer “within 180 days after the injury to person or property that is the basis of the claim____” Lopez contends that, in his wrongful death action, the “injury” for which he seeks a remedy is the loss he suffers as a fatherless child. He argues that his injury, replete with all its damages, first manifested itself on the day he was born. In support of his argument, Lopez points out that the nature of a wrongful death action is distinguishable from a survival action.

In the latter case, the decedent’s estate may bring an action for the injury the decedent suffered. As such, the decedent’s personal representative is essentially bringing an action that the decedent could have brought had he or she not died. Smith v. Gray Concrete Pipe Co., 267 Md. 149, 158-59 , 297 A.2d 721, 727 (1972), overruled on other grounds, Owens-Illinois v. Zenobia, 325 Md. 420 , 601 A.2d 633 (1992). In a wrongful death action, however, the injury for which a plaintiff may recover is not that suffered by the decedent, but it is the loss that the plaintiff has suffered from the death of a spouse, child, or parent.

See Stewart v. United Elec. L. & P. Co., 104 Md. 332, 338-40 , 65 A. 49, 51-52 (1906). The claimant in the instant case—Lopez as a statutory beneficiary under § 3-904 of the Courts Article—had not yet been born at the time of his father’s death. The State argued below that since the limitations period for the child’s wrongful death action began to run at the time German Rodriguez died, 4 his claim to the Treasurer ⁴⁹¹ must have necessarily been filed within 180 days of that date.

Yet even had Lopez filed within 180 days of his father’s death, the State argues, it would have been for naught because “he was a fetus and therefore did not have a cause of action” and “was not a statutory beneficiary until the time of filing had expired.” Lopez agrees that, as a fetus, he had no cause of action for the wrongful death of his father; yet he draws a different conclusion from this fact. While agreeing that no cause of action existed at the time of Rodriguez’ death, Lopez argues that he became a statutory claimant, i.e., his cause of action arose, upon his birth. Most recently in Owens-Illinois v. Armstrong, we held that a cause of action arises “ ‘when facts exist to support each element.’ ” 326 Md. 107, 121 , 604 A.2d 47, 54 (1992) (citation omitted). We went on to explain, “In a negligence claim, the fact of injury would seemingly be the last element to come into existence.

The breach, duty, and causation elements naturally precede the fact of injury.” Id. Again we look to the nature of a wrongful death action and the injury it was designed to recompense to determine when, and if, Lopez’ cause of action arose. One injury for which a plaintiff in a wrongful death action is compensated “is the pecuniary loss sustained by reason of the death” of a loved one. Tucker v. State, Use ⁴⁹² of Johnson, 89 Md. 471, 479 , 43 A. 778, 780 , 44 A. 1004 (1899).

See also Stewart, 104 Md. at 342-43 , 65 A. at 53-54 . In addition to pecuniary loss, the damages recoverable by wrongful death plaintiffs are those for “mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice,