Mayor & City Council of Cumberland v. Beall

CATHELL, Judge. The Mayor and City Council of Cumberland and its insurer, Hartford Accident & Indemnity (hereinafter appellants), appeal a decision of the Circuit Court for Allegany County finding that the appellants were estopped from applying the statute of limitations as a bar to appellee Walter Beall’s attempt to modify a workers’ compensation award by filing a claim for additional compensation more than five years after the last compensation payment under the award. They also appeal the trial court’s determination that the claim was timely made. At the pertinent time, Article 101, section 40(c) of the Workmen’s Compensation Act provided for modification of awards if “application therefor shall be made to the Commission within five years next following the last payment of compensation.” 1 It is undisputed that the last payment of compensation occurred on September 19, 1985, that the modification claim was filed with the Commission on September 24, 1990, and that the claim was filed with the Commission more than five years after the last payment.

The crux of the case revolves around a letter sent not to the Commission, but to the insurer. That letter stated: August 6, 1990 The Hartford Attn: Samuel Gilliland 57 W. Timonium Road ⁵⁹⁹ P.O. Box 350 Lutherville, Maryland 21093 RE: Walter R. Beall vs. City of Cumberland/468C 53472 SG D/A: 2/25/83 Dear Ladies and Gentlemen: I was recently contacted by my client, Walter Ray Beall, as a result of the above captioned accident since he has had to lose additional time from his employment due to an exacerbation of his ongoing lumbar problem. As you will note from the notes of Dr. Bollino, the treating doctor, he put Mr. Beall off work as of July 26, 1990 until Monday, July 30, 1990. I have not talked to Mr. Beall or the doctor since that time, but I assume he did return to work on July 30, 1990.

In any event, I would appreciate it if temporary total disability could be paid for the dates claimed in this letter. If there is any difficulty with the payment of this, please advise as soon as possible. Very truly yours, /s/ Ronald J. Levasseur/ksr Ronald J. Levasseur RJL/ksr The statute of limitations ran before the insurer responded to the letter. The insurer, in response to the letter, informed appellee, that the claim was time barred.

Prior to receiving the insurer’s response, the appellee filed his claim with the Commission but, as we have said, that filing was untimely. The trial court apparently found either that the silence of appellant, following the direct question posed in the letter of August 6th, amounted to an estoppel by silence and thus a waiver of the statutory bar or that the letter was the filing of a claim with the Commission, or both. We disagree and shall reverse. ⁶⁰⁰ Limitations and Equitable Estoppel Generally In Vest v. Giant Food Stores, Inc., 329 Md. 461 , 620 A.2d 340 (1993), Vest asserted, among other things, that the Commission’s express retention of jurisdiction to make a future determination of permanent partial disability tolled any application of the five-year limitation period. The Court disagreed, stating: The Commission’s power to reopen awards ... is expressly limited with respect to the time during which it may exercise that power.

Section 40(c) ... limits the exercise of that jurisdiction to a five-year period.... ... [S]uch a reservation [of the power to reopen], even if intended by the Commission, is wholly inconsistent with § 40(c). The Commission cannot bypass the statutory restriction on its authority. Id. at 475-76, 620 A.2d 340 . See also Adkins v. Weisner, 238 Md. 411 , 209 A.2d 255 (1965) (when weekly payments are converted to lump sum, the five-year period is computed from the lump sum payment date, not the date that weekly payments would have been finally paid).

The Court noted in Montgomery County v. McDonald, 317 Md. 466, 472 , 564 A.2d 797 (1989), that: Undoubtedly the Act is to be construed liberally in favor of injured employees and to effectuate its remedial purposes, but a liberal rule of construction does not mean that courts are free to disregard the provisions comprising the Act.... The foregoing rule of construction is particularly apt for the subject limitations provision. “[T]he general purpose of the applicable workmen’s compensation act to compensate injured workers should not be used to interpret the limitations provision, because the very existence of a limitations provision in the act indicates that the legislature has deliberately compromised the general compensation purpose in the interests of the purposes served by the limitations provision.” [Citations omitted.] ⁶⁰¹ See also Walter J. Crismer & Son, Inc. v. Seal, 258 Md. 437, 441 , 265 A.2d 918 (1970) (failure of employer to post notices and the furnishing by employer of physicians to treat employee did not create estoppel as to the raising of limitations in workmen’s compensation case). Booth Glass Company, Inc. v. Huntingfield Corporation, 304 Md. 615 , 500 A.2d 641 (1985), addressed the tolling of the three-year general statute of limitations then contained in Maryland Courts and Judicial Proceedings Code Annotated section 5-101. In Booth, the building owner discovered that glasswork installed by Booth leaked.

Booth made numerous efforts to repair the work, but the problems were never completely rectified. During the period (two years) when Booth was attempting to repair the work and for two more years thereafter, its president proffered to the building owner, Huntingfield, that the repairs would be successfully made. Ultimately they were not. Huntingfield eventually filed suit.

Booth pled limitations, asserting that more than three years had elapsed from the time when Huntingfield had first discovered the problem. We had held that Booth’s continuing attempts to repair the work tolled the statute. 2 In reversing us, the Court of Appeals noted: LW]e are aware that courts in some jurisdictions, in contract and warranty actions, have adopted or recognized the rule that limitations will be tolled where ... assurances are given that repairs will be made____ Other courts, however, have determined that even though assurances are given, attempts to repair will not toll limitations absent a strong showing of inducement by the defendant not to sue. Id. at 622 , 500 A.2d 641 (citations omitted, emphasis added). The Court then addressed Maryland law, stating: We have long adhered to the principle that where the legislature has not expressly provided for an exception in a ⁶⁰² statute of limitations, the court will not allow any implied or equitable exception to be ingrafted upon it.... ...

In Maryland ... it is well settled that equitable estoppel will not toll the running of limitations absent a showing that the defendant “held out any inducements not to file suit or indicated that limitations would not be pleaded.” Id. at 623-24 , 500 A.2d 641 (citations omitted). Furthermore: The Court of Appeals does not allow any implied or equitable exception to be engrafted on the statute of limitations merely on the ground that such exception would be within the spirit of the statute. To the contrary, the Court looks to the public policy served by the defense of limitations, and permits it to function arbitrarily, without discrimination between the just and unjust claim, or the avoidable and unavoidable delay. Glenn v. Morelos, 79 Md.App. 90, 99 , 555 A.2d 1064 cert. denied, 316 Md. 427 , 559 A.2d 790 (1989) (quoting The Johns Hopkins Hospital v. Lehninger, 48 Md.App. 549, 562 , 429 A.2d 538 , cert. denied 290 Md. 717 (1981)) (citation omitted).

See Antigua Condominium Association v. Melba Investors Atlantic, Inc., 65 Md.App. 726, 751 , 501 A.2d 1359 , vacated on other grounds 307 Md. 700 , 517 A.2d 75 (1986) (no equitable estoppel in absence of inducements or indications that the defense of limitations will not be relied on by defendant); McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 160 , 40 A.2d 313 (1944). In The Johns Hopkins Hospital v. Lehninger, 48 Md.App. at 564 , 429 A.2d 538 we went on to say: Maryland courts have infrequently addressed the juxtaposition of the defense of limitations and the doctrine of equitable estoppel.... We have already seen that the courts rigorously protect the defense of limitations____ In Lehninger , we noted and relied on Leonhart v. Atkinson, 265 Md. 219 , 289 A2.d 1 (1972), in which it was claimed that an accountant’s assurances that the position of IRS was incorrect had lulled the plaintiffs into a false sense of security “which delayed the start of litigation.” Lehninger, 48 Md.App. at 566 , ⁶⁰³ 429 A.2d 538 . In the present case, as in those noted above, no assurances of any kind were made.

Judge Digges’s opinion in Leonhart states: [T]he Leonharts argue that appellee ought to be prohibited from using the statute as a bar since his conduct “obscure[d] the [appellants’] perception of the wrong---- It was not alleged that the accountant ... asked the Leonharts to forbear bringing suit ... [or] indicated he would waive the defense of limitations ... or that he induced them not to file suit by giving assurances---- [T]he only conclusion ... is that the delay ... was due to the lack of diligence on the part of the Leonharts. Leonhart, 265 Md. at 227-28 , 289 A.2d 1 (citations omitted). In an earlier breach of contract case, Walko Corporation v. Burger Chef Systems, Inc., 281 Md. 207 , 378 A.2d 1100 (1977), the Court of Appeals discussed the general standards applicable to statutes of limitations. This policy of repose has fostered a traditional rule concerning the tolling of statutes of limitation that can be fairly termed one of strict construction.

Early on we adopted this rigorous stance: “The principle of law is indisputable, that when the Statute of Limitations once begins to run, nothing will stop or impede its operation.” The rule has lost little of its vitality.... [T]he principle ... “while not immutable under all circumstances ... is still the general legal approach.” This venerable rule, which defers to the legislative intent expressed in the statute of limitations itself, ... avoids implied exceptions or strained constructions.... Id. at 210-11 , 378 A.2d 1100 (citations omitted). See also Glenn v. Morelos, 79 Md.App. 90, 96 , 555 A.2d 1064 (1989); Bennett v. Baskin & Sears, 77 Md.App. 56, 76 , 549 A.2d 393 (1988). In affirming a trial court summary judgment dismissing a case on the basis of limitations, the Court of Appeals stated: ⁶⁰⁴ There is no showing that Mr. Clagett held out any inducement not to file suit.

There is no indication that Mr. Clagett indicated in any way that limitations would not be pleaded. There is no indication that any legal defense would be waived. There is no showing of any unconscionable, inequitable or fraudulent act of commission or omission upon which Jordan relied and has been misled to his injury. Jordan v. Morgan, 252 Md. 122, 132 , 249 A.2d 124 (1969) (emphasis added).

See also Nyitrai v. Bonis, 266 Md. 295, 300 , 292 A.2d 642 (1972) (“Settlement negotiations alone, however, do not raise an estoppel, especially where there is no showing ... that the appellee ... held out any inducements not to file suit or indicated that limitations would not be pleaded.” (citation omitted, emphasis added)); Leonhart, 265 Md. 219 , 289 A.2d 1 ; Watson v. Dorsey, 265 Md. 509 , 290 A.2d 530 (1972); Johns Hopkins Hospital v. Lehninger, 48 Md.App. at 568 , 429 A.2d 538 (“Similarly the highest courts of other jurisdictions have refused, in the absence of fraudulent misrepresentation or concealment, to create an equitable estoppel precluding the defense of limitations.”). In the negligence case of Bertonazzi v. Hillman, 241 Md. 361 , 216 A.2d 723 (1966), suit was filed against Hillman’s administratrix several days after the expiration of the limitations period. Prior to Hillman’s death, the plaintiff and the Hillmans’ insurer had been conducting negotiations to settle the claim. When plaintiffs filed a suit against Hillman, the summons was returned mortis est.

Plaintiffs lawyer discovered that it had been so returned on the 18th of July 1963, at about the same time he discovered that he had filed the suit in the wrong jurisdiction. He refiled the suit against the administratrix but still in the wrong county. Plaintiffs counsel contacted the administratrix and informed her that there were some technical problems with the suit. The administratrix responded that she had no objection to a proper determination of the facts and referred plaintiffs lawyer to her lawyer.

The administratrix’s lawyer was called and told of the potential limitations problem. He agreed to accept service of process but indicated that he would not be consent ⁶⁰⁵ ing to jurisdiction. Plaintiffs lawyer then served the administratrix’s lawyer. Thereafter, the suit was dismissed because it had been filed in the wrong jurisdiction.

It was refiled in the proper jurisdiction after the statute had expired. When the plea of limitations was filed, the plaintiff filed a “Plea of Estoppel as to the Statute of Limitations.” The telephone conversation between the plaintiffs lawyer and the administratrix’s lawyer was the primary basis for the claim of estoppel. While the Court of Appeals held that the prior filing was sufficient to toll the statute, 3 it summarily rejected the estoppel argument: We see no support ... for a finding of waiver or estoppel____ [T]here [is no] mention of or reference to any express promise or agreement ... to waive the statute.... [N]othing that Mrs. Hillman or her lawyer said or did inspired or fostered the idea [that the statute would be tolled]. There is no assertion that representatives of Mr. Hillman’s insurer led appellant to believe that liability would not be contested or that any legal defense would be waived.

Bertonazzi, 241 Md. at 365 , 216 A.2d 723 . In Cromwell v. Ripley, 11 Md.App. 173 , 273 A.2d 218 (1971), the appellant filed with the clerk of the court a motion to amend a declaration. The clerk failed to bring it to the attention of the court prior to the expiration of the limitations period. The trial court found: “... [I]t was counsel’s responsibility ... to keep himself abreast of the litigation of which he is counsel of record ... it was your responsibility to see ... that the motion ... got ⁶⁰⁶ to the attention of the Judge ... and was acted upon before the Statute ran on August 18.” [4] Id. at 179 , 273 A.2d 218 .

We held that limitations were not tolled by the