McCance v. Lindau

GILBERT, Chief Judge. We are asked in this appeal to apply the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) 1 so as to permit a career naval officer, a physician, to circumvent the Maryland Statutes of Limitations and thus maintain certain actions in tort. Before discussing the applicable law, we shall set the stage on which this drama unfolded. The “Declaration” of the appellants, David M. McCance and Ruth E. McCance, reads as if written for a television “chase scene.” We explain.

The Allegations The McCances claim that on or about October 9, 1980, they, along with Dr. McCance’s three children, were sitting in their parked car in the lot of a Pizza Hut restaurant in Frederick, Maryland. A car driven by Jules W. Lindau, IV, pulled in behind them and blocked their exit. Lindau, an attorney, was recognized by the McCances because he had represented Dr. McCance’s ex-wife in her divorce proceedings against the doctor. Because their exit from the parking space was blocked, the McCances drove forward over a grassy area of the parking lot.

Lindau followed in what the McCances described as a “high speed” car chase. According to the appellants, Lindau’s “automobile frequently ... [struck] Appellants’ rear bumper.” When the McCance family stopped at a McDonald’s restaurant, Lindau pursued Mrs. McCance on foot. She sought refuge in the ladies restroom. There, another wom ⁵⁰⁷ an offered her a “getaway” ride.

Mrs. McCance hid in her benefactor’s car and was driven to a place where she was reunited with her immediate family. Once reunited, the McCances headed for home and there they deposited the children safely in the house. When Mrs. McCance, minus the children, left the residence, Lindau continued to chase 2 her “at a very high rate of speed.” 3 The pursuit allegedly placed Mrs. McCance “in great fear and danger.” Finally, she called a halt to the vehicle chase and parked her car at a shopping mall. In the mall, the “great chase” continued afoot.

Finally, Mrs. McCance hailed the State police. 4 When Lindau was questioned by the officer, he told him that he was attempting to serve Dr. McCance with some legal papers. He continued, according to appellants, to follow Mrs. McCance “around the Mall until she was eventually able to escape from his view and return to” her husband. The McCances filed suit in the Circuit Court for Frederick County on October 5, 1983, just three days short of three years from the date of the alleged incidents. Their declaration against Lindau averred actions of assault, assault and battery, invasion of privacy, slander by conduct, and negligence.

It also asserted a total claim of $7,500,000 — $2,500,-000 compensatory damages and $5,000,000 punitive damages. The trial court granted summary judgment against the McCances, holding that the actions were barred by limitations, and that the SSCRA did not apply. 5 ⁵⁰⁸ The Issues “I. Whether the lower court was in error by holding [that] the Appellant ... must show [that] his military service prejudiced him from filing his suit in a timely fashion before he can invoke protection from the Soldiers’ and Sailors’ Relief Act [of 1940], 50 U.S.C. Appx. Section 525?

II

Whether the lower court erred in granting the Appellee’s Motion for Summary Judgment on the basis that Count Five of the Declaration, a negligence count, was barred by a one-year statute of limitations for intentional torts?” The Law I. The trial court held that the SSCRA does not serve to protect Dr. McCance 6 from the Maryland statutes of limitations. 7 Section 525 of the SSCRA provides: “The period of military service shall not be included in computing any period now or hereafter to be limited by any law ... for the bringing of any action or proceeding in any court ... by or against any person in military service ... whether such cause of action or the right or privilege to institute such action or proceeding shall have ⁵⁰⁹ accrued prior to or during the period of such service....” 8 The trial court reasoned that Congress never intended to provide blanket protection for all servicemen, including career military personnel who might be on active duty for decades. Thus, the judge required that Dr. McCance prove that he was prejudiced by his military duties from filing a timely suit. The trial judge cited to several other courts which have held that § 525 does not apply to “career” servicemen. See, e.g., Pannell v. Continental Can Co., Inc., 554 F.2d 216 (5th Cir.1977); King v. Zagorski, 207 So.2d 61 (Fla.1968); Bailey v. Barranca, 83 N.M. 90 , 488 P.2d 725 (1971).

All three of those cases, Pannell, Bailey, and King involve what is loosely termed “career service” personnel. All three use the appellation “career service,” but none of the three defines what is meant by “career service.” Today’s military forces are purely volunteer services. No one in the armed forces today is a “draftee” or conscript. Consequently, we ask rhetorically at what point a person in the military of the United States becomes a “career service” person?

When, under the trilogy of Pannell, King, and Bailey is that person placed outside the ambit of the SSCRA? Does the mere act of enlistment, vis a vis conscription, constitute a “career” service person or does that nomenclature apply after 60 days service, 90 days service, 5 years service, 10 years service, or during the 18th year of service? ⁵¹⁰ We have carefully reviewed the SSCRA and fail to find therein any indication that it was not to apply to “career” service personnel. We acknowledge that § 510 of the Act declares: “In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable, the United States the more successfully to fulfill the requirements of the national defense, provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act [sections 501 to 591 of this Appendix] remains in force.” (Emphasis supplied.) Significantly, the word “temporary” is not defined by the Act, and we have learned through experience that nothing is more permanent than that which is legislatively designated as temporary. Indeed, the “temporary suspension of legal proceedings” afforded by the act has endured for forty-five years.

It has survived three wars: World War II, Korea, and Vietnam, and other military engagements, such as Grenada. We reject the rationale of Pannell, King, and Bailey . We do so because we think those courts have bottomed their reasoning on two false premises. One, they are unwilling to abide by the clear, unambiguous wording of § 525, indicating that the section applies to all persons in the military service and not merely to conscripts or draftees.

Second, the holdings of King , reiterated in Bailey , and repeated in Pannell are that the career service person must show some sort of prejudice as a result of being in the military, before he or she can invoke § 525. That reasoning ⁵¹¹ proves fallacious when viewed in the light of the other provisions of the Act. Certain provisions of the SSCRA confer upon the courts the explicit authority to remove the umbrella of protection afforded by the Act with respect to those particular sections. The protective shield may not be removed, however, unless the court is of the opinion that being in the military does not materially affect the ability of the service person to prosecute or defend an action.

For example, 50 U.S.C. App. § 520(4) expressly provides that prejudice by reason of service in the military must be shown in order to open a default judgment. Section 521 plainly confers upon courts the right to grant a stay of proceeding, if the court is of the opinion that the service person’s ability to participate in the lawsuit is materially affected by reason of his or her military service. What has been said of §§ 520(4) and 521 is also true with respect to other sections of the Act, namely, § 522 (fines and penalties), § 523 (execution on or attachments on judgments), § 526 (interest rates), and § 531 (installment contracts). Each of the above enumerated sections of the SSCRA definitely provides protection to the service person only if he or she demonstrates prejudice or hardship in maintaining or defending