Rose v. Fox Pool Corp.

RAKER, Judge. Maryland Code (1974, 1989 Repl.Vol. & 1993 Cum.Supp.) § 5-108(a) 1 of the Courts and Judicial Proceedings Article provides that no cause of action for personal injury resulting from the defective and unsafe condition of an improvement to real property accrues if the injury occurs more than 20 years after the date the entire improvement first became available for its intended use. The Circuit Court for Anne Arundel County entered summary judgment in favor of the defendant manufacturer on the ground that § 5-108(a) barred the plaintiffs suit: This appeal followed. We issued a writ of certiorari on our own motion prior to consideration of the case by the Court of Special Appeals, 332 Md. 701 , 632 A.2d 1207 .

The principal issue raised in this appeal is whether § 5-108(a) applies to a cause of action brought against the manufacturer of a residential, in-ground' swimming pool for injuries caused by an álleged defect in the pool’s design. We answer that question in the affirmative. We hold, however, that summary judgment was improperly granted as there is a genuine issue of material fact as to whether the plaintiffs injury occurred more than 20 years after the date the entire improvement first became available ³⁵⁵ for its intended use. We therefore reverse the judgment of the trial court.

I. In 1971, Rudi and Hannelore Schanne decided to install an in-ground swimming pool at their home in Glen Burnie, Maryland. The Schannes purchased the pool from Appellee Fox Pool Corporation [Fox], a designer, manufacturer and supplier of residential swimming pools. The pool consisted of a vinyl liner supported by metal bracing, measured 20 feet in width by 40 feet in length, and was designed such that it had both an area of shallow water for wading and an area of deeper water, ostensibly for diving. In the deeper end, the pool’s interior walls sloped at a 45 degree angle towards a small “target area” for diving in the center.

Although the depth of the water in the “target area” was 7 feet 6 inches, the water in other areas of the deeper end was as shallow as 3 feet deep because of the pool’s sloping walls. In early 1971, Fox shipped the unassembled pool to the Schannes, who subsequently hired B & H Construction Company [B & H] to install the pool at their home. In deposition testimony, Mr. Schanne recalled that the pool was installed “early in the spring” of 1971, “somewhere around March.” Also in deposition testimony, Mrs. Schanne recalled that installation of the pool was completed by May 1971 and that she began swimming in the pool by the end of that same month. Mrs. Schanne also testified that B & H gave her a warranty card for the pool on the day that construction was completed.

When she was given the card, Mrs. Schanne filled in the necessary information and returned the card to B & H, which in turn sent the card back to Fox. The date on the completed warranty card, obtained from Fox during pre-trial discovery, is July 12, 1971. On July 4,1991, Appellant John B. Rose attended a party at the Schannes’ home. Rose was a neighbor of the Schannes and had enjoyed the use of their pool numerous times over the years.

When Rose dove from the side of the pool on this ³⁵⁶ occasion, however, he struck his head on either the bottom or the side of the pool and was rendered quadriplegic. He subsequently filed suit against Fox in the Circuit Court for Anne Arundel County, asserting causes of action in negligence, strict liability, and breach of warranty. The gravamen of Rose’s complaint against Fox was that the pool was defectively designed and generally unsafe for diving and that Fox had failed to adequately warn its customers of the pool’s dangerous condition. On November 16, 1992, Fox filed a motion for summary judgment based upon § 5-108(a) of the Courts and Judicial Proceedings Article.

Section 5-108 provides, in full: (a) Injury occurring more than 20 years later.—Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use. (b) Action against architect, professional engineer, or con tractor.—Except as provided by this section, a cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use. (c) Three-year limitation after accrual of cause of action.— Upon accrual of a cause of action referred to in subsections (a) and (b) of this section, an action shall be filed within 3 years. (d) Supplier defined.—(l) In this subsection, “supplier” means any individual or entity whose principal business is ³⁵⁷ the supply, distribution, installation, sale, or resale of any product that causes asbestos-related disease.

(2) This section does not apply if: (i) The defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred; (ii) In a cause of action against a manufacturer or supplier for damages for personal injury or death caused by asbestos or a product that contains asbestos, the injury or death results from exposure to asbestos dust or fibers which are shed or emitted prior to or in the course of the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property; (iii) In other causes of action for damages for personal injury or death caused by asbestos or a product that contains asbestos, the defendant is a manufacturer of a product that contains asbestos; or (iv) In a cause of action for damages for injury to real property that results from a defective and unsafe condition of an improvement to real property: 1. The defendant is a manufacturer of a product that contains asbestos; 2. The damages to an improvement to real property are caused by asbestos or a product that contains asbestos; 3. The improvement first became available for its intended use after July 1, 1953; 4.

The improvement: A. Is owned by a governmental entity and used for a public purpose; or B. Is a public or private institution of elementary, secondary, or higher education; and 5. The complaint is filed by July 1, 1993. (e) When action accrues.—A cause of action for an injury described in this section accrues when the injury or damage occurs. ³⁵⁸ In support of its contention that § 5-108(a) bars Rose’s claims, Fox asserted (1) that the Schannes’ swimming pool is an “improvement to real property”; (2) that Rose’s injuries resulted from the alleged “defective and unsafe condition” of the pool; and (3) that at the time Rose was injured, more than 20 years had passed since the' pool “first bec[ame] available for its intended use.” Following an oral hearing on the motion, Judge H. Chester Goudy granted summary judgment in favor of Fox on the ground that Rose’s claims were barred by § 5-108(a). Rose appealed.

Rose’s principal contention before this Court is that § 5-108(a) should not and was never intended to apply to manufacturers of consumer goods. Rose also submits two alternative arguments in support of his assertion that summary judgment' was improperly granted. First, Rose asserts that his injuries did not “result from” a defective and unsafe condition of an “improvement to real property” within the meaning of § 5-108(a). Rose contends that an in-ground swimming pool is a consumer good within the meaning of Maryland Code (1975, 1992 Repl.Vol.), § 2-105 and § 9-109(1) of the Commercial Law Article and suggests that the pool should therefore not be considered an “improvement to real property.” Second, relying upon Mrs. Schanne’s testimony that she was given the pool’s warranty card on the day that construction of the pool was completed and the fact that the warranty card was dated July 12, 1971, Rose asserts that there is a genuine issue of material fact with respect to whether, at the time of his injury on July 4, 1991, the requisite 20 years had passed since the entire improvement first became available for its intended use.

We shall address each of Rose’s arguments in turn.

II

The issues raised in this appeal require us to discern the meaning of § 5-108(a). The cardinal rule of statutory construction is to effectuate and carry out legislative intent. See, e.g., Comptroller v. Jameson, 332 Md. 723, 732 , 633 A.2d 93, 97 (1993); Geico v. Insurance Comm’r, 332 Md. 124, 131 , 630 A.2d 713, 717 (1993). Every statute is enacted to further ³⁵⁹ some underlying goal or purpose—“to advance some interest, to attain some end”—and must be construed in accordance with its general purposes and policies.

Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628, 632 (1987); see also State v. Fabritz, 276 Md. 416, 421 , 348 A.2d 275, 278 (1975), cert. denied, 425 U.S. 942 , 96 S.Ct. 1680 , 48 L.Ed.2d 185 (1976). When called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent. Jameson, 332 Md. at 732, 633 A.2d at 97-98 ; Comptroller v. Fairchild Industries, 303 Md. 280, 284 , 493 A.2d 341, 343 (1985). The statute must be construed as a whole so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.

Condon v. State, 332 Md. 481, 491 , 632 A.2d 753, 758 (1993); Md. Port Adm. v. Brawner Contracting Co., 303 Md. 44, 60 , 492 A.2d 281, 289 (1985). When the language of a statute is plain and clear and expresses a meaning consistent with the statute’s apparent purpose, no further analysis of legislative intent is ordinarily required. Kaczorowski, 309 Md. at 515 , 525 A.2d at 633 . As we explained, however, in Morris v. Prince George’s County, 319 Md. 597 , 573 A.2d 1346 (1990): [O]ur endeavor is always to seek out the legislative purpose, the general aim or policy, the ends to be accomplished, the evils to be redressed by a particular enactment.

In the conduct of that enterprise, we are not limited to study of the statutory language. The plain meaning rule “ ‘is not a complete, all-sufficient rule for ascertaining a legislative intention....’” The “meaning of the plainest language” is controlled by the context in which it appears. Thus, we are always free to look at the context within which the statutory language appears. Even when the words of a statute carry a definite meaning, we are not “precluded from consulting legislative history as part of the process of determining the legislative purpose or goal” of the law. ³⁶⁰ 319 Md. at 603-04 , 573 A.2d at 1349 (citations and footnote omitted); see also Baltimore Cty.

C.A.U.T. v. Baltimore Cty., 321 Md. 184, 203-04 , 582 A.2d 510, 519-20 (1990); Kaczorowski, 309 Md. at 513 , 525 A.2d at 632 . The legislative history of a statute, including amendments that were considered and/or enacted as the statute passed through the Legislature, and the statute’s relationship to earlier and subsequent legislation are “external manifestations” or “persuasive evidence” of legislative purpose that may be taken into consideration. Maryland Nat’l Bank v. Pearce, 329 Md. 602, 619 , 620 A.2d 941, 949 (1993) (quoting Kaczorowski, 309 Md. at 515 , 525 A.2d at 632 ). A. The specific statutory language of § 5-108(a) precludes all actions which meet two requirements: (1) the plaintiffs injuries must have resulted from the alleged defective and unsafe condition of “an improvement to real property”; and (2) 20 years must have passed since the “entire improvement first bec[ame] available for its intended use.” The “no cause of action” language of § 5-108(a) is clear: it creates a blanket prohibition against all suits that meet the statutory criteria.

Thus, as the statute was drafted, the defendant’s identity is irrelevant in determining whether § 5-108(a) bars a particular cause of action. Unlike subsection (b), which specifically names architects, professional engineers, and contractors as persons entitled to greater protection from liability than that afforded by subsection (a), and unlike subsections (d)(2)® (defendant in possession and control) and (d)(2)(h), (hi), and (iv) (all relating to the exclusion of manufacturers and supphers of asbestos), subsection (a) does not identify the class of persons to which it applies. It is well settled that where a statute specifically hsts certain classes of persons as excluded from coverage, the express exclusion of certain persons raises the inference that all other persons not excepted are within the statute’s coverage. See Office & Prof.

Employees Int’l v. MTA, 295 Md. 88, 96 , 453 A.2d 1191, 1195 (1982); Montgomery v. State, 292 Md. 155, 162 , 438 A.2d 490, 493 (1981); see also C. Sands, 2A ³⁶¹ Sutherland Stat. Const. § 47.23 (5th ed. 1992) (“The enumeration of exclusions from the operation of a statute indicates that the statute should apply to all cases not specifically excluded.”). Here, the express exclusion of certain persons in the various provisions of subsection (d), and the singling out of other persons for special protection in subsection (b), gives rise to the inference that subsection (a) provides immunity from liability to all other persons, including, necessarily, product manufacturers. Rose, however, protests the application of § 5-108(a) to suits against product manufacturers. Relying upon select passages from the legislative history of § 5-108 which discuss the application of the statute to architects, engineers, builders and contractors, Rose contends that the General Assembly never intended that manufacturers fall within the scope of the statute.

Although the plain language of § 5-108(a) makes clear that all actions are barred by the statute, we shall review the legislative history of the entire statute to ensure that the “plain meaning” rule does not lead us to a construction at odds with the General Assembly’s intent in enacting this statute of repose. B. The earliest version of § 5-108 was enacted by the General Assembly in 1970. 1970 Laws of Maryland, Ch. 666. Codified at Article 57, § 20, the statute provided in full: Actions for damages resulting from defective or unsafe real property improvements. No action to recover damages for injury to property real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages incurred as a result of said injury or death, shall be brought more than twenty years after the said improvement was substantially completed.

This limitation shall not apply to any action brought against the person who, at the time the injury was sustained, was in actual possession and control as owner, tenant, or otherwise of the ³⁶² said improvement. For purposes of this section, “substantially completed” shall mean when the entire improvement is first available for its intended use. As we discussed in Whiting-Turner Contract. Co. v. Coupard, 304 Md. 340 , 499 A.2d 178 (1985), two developments in the law—the elimination of the “privity of contract” doctrine as a defense and the application of the “discovery rule” 2 — provided the impetus behind the enactment of Article 57, § 20 and the enactment of statutes of repose in other states across the nation. 304 Md. at 349 , 499 A.2d at 183 ; see also Hilliard & Bartko v. Fedco Systems, 309 Md. 147, 160 , 522 A.2d 961, 968 (1987).

In the context of actions for injuries arising out of an improvement to real property, those two changes in the law resulted in a dramatic expansion of liability, both with respect to the persons who might be held liable and with respect to the duration of that liability. Whiting-Turner, 304 Md. at 349 , 499 A.2d at 183 . Architects and engineers, particularly concerned by these developments, turned to state legislatures for protection from this expanded liability. As a consequence, statutes of repose, aimed at addressing the problem of expanded liability resulting from defective and unsafe conditions in improvements to real property, were enacted by some ³⁶³ thirty states between 1964 and 1970.

See Comment, Limitation of Action Statutes for Architects and Builders—Blueprints for Non-action, 18 Cath.U.L.Rev. 361, 361 (1969) 3 . Article 57, § 20 was the Maryland General Assembly’s “response to the problems arising from the expansion of liability based on the defective and unsafe condition of an improvement to real property.” Whiting-Turner, 304 Md. at 349 , 499 A.2d at 183 . Most jurisdictions which enacted statutes of repose adopted some variation of the model statute endorsed by the American Institute of Architects, the National Society of Professional Engineers, and the Associated General Contractors. The model statute provided, in pertinent part: ³⁶⁴ No action, whether in contract (oral or written, sealed or unsealed), in tort or otherwise, to recover damages (i) for a deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property, (ii) for injury to property, real or personal, arising out of any such deficiency, or (iii) for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction, or construction of such an improvement more than four years after substantial completion of such an improvement.

Limitation of Action Statutes, supra, at 365 n. 31 (emphasis added); J.H. Westerman Co. v. Fireman’s Fund Ins. Co., 499 A.2d 116, 121 (D.C.1985). Those states adopting some version of the model statute enacted statutes with language limiting the application of the statute to a specified group of defendants, usually those engaged in the design and construction of improvements. Some states went further than the model statute in identifying the class of persons to be protected by a particular statute of repose and expressly limited the statute of repose to actions against specific, named classes of persons.

See, e.g., Conn.Gen.Stat. § 52-584a (1989) (architects and professional engineers); Me.Rev.Stat.Ann. tit. 14, § 752-A (West 1980) (duly licensed or registered architects and engineers); Mich.Comp.Laws § 600.5839 (1987) (state licensed architects and professional engineers); R.I.Gen.Laws § 9-1-29 (1985) (architects, professional engineers, contractors, subcontractors, and materialmen); Tex.Civ.Prac. & Rem.Code Ann. § 16.008 to .009 (West 1986) (licensed or registered architects and engineers). ³⁶⁵ Bills were introduced in the Maryland General Assembly during the 1967, 4 1968 5 and 1969 6 legislative sessions which would have created a statute of repose applicable only to “persons performing or furnishing the design, planning, supervision of construction or construction” of an improvement. The General Assembly, however, did not enact a bill with such limiting language. The statute that was finally enacted in 1970 was Article 57, § 20, 7 which simply provided that, under the specified circumstances, no cause of action could be brought. Article 57, § 20 was modified as part of the code revision project when the Courts and Judicial Proceedings Article was enacted effective January 1,1974.

Codified at § 5-108 of that Article, the statute read as follows: (a) Injury resulting from improvement to realty.—Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real ³⁶⁶ property occurs more than 20 years after the date the entire improvement first becomes available for its intended use. (b) Exception.—This section does not apply if the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred. (c) When action accrues.—A cause of action for an injury described in this section accrues when the injury or damage occurs. During the late 1970’s, architects and engineers began to complain that the 20-year limitation provided by § 5-108(a) did not afford them sufficient protection from liability.

Citing statistics which indicated that most claims brought against architects and engineers are brought within 8 years of the completion of a project and pointing out that other states had enacted much shorter time limits with respect to suits against architects and engineers, the General Assembly was urged to shorten the statutory time period in which suits could be brought. See, e.g., Statement by the Consulting Engineers Council of Maryland, Inc. before the House Judiciary Committee on Senate Bill 18, April 6, 1977 (available at the Department of Legislative Reference, Bill File for Senate Bill 18 (1977)); see also Limitation of Action Statutes, supra, at 365-69 (comparison of statutes of repose). In apparent response, by Chapter 698 of the Acts of 1979, the Legislature created a new subsection (b) that applied only to claims against architects and professional engineers: (b) Action against architect or professional engineer.—A cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect or professional engineer for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use. ³⁶⁷ 1979 Laws of Maryland, Ch. 698. 8 Significantly, the retention of subsection (a) and the creation of a new subsection applying only to architects and professional engineers made it clear that subsection (a) applied to persons other than architects and professional engineers. In 1980, by Chapter 605, the General Assembly added contractors to the list of persons afforded the special protections of subsection (b).

During 1988 and 1989, the question of whether § 5-108(a) applies in actions against product manufacturers became a critical issue in a number of suits seeking damages for personal injury and property damage from manufacturers of construction materials containing asbestos. In every one of those cases, § 5-108(a) was held to bar claims for damages filed against the manufacturers of asbestos whose products had been incorporated into buildings which had been completed over 20 years prior to the discovery of the plaintiffs' injuries. 9 See Department of Legislative Reference Update, Vol. 90-1, Asbestos Liability—The Statute of Repose, January 11, 1990 [Leg.Ref.Update] at 5-7 (discussing applicability of § 5-108(a) in asbestos cases); Bill Analysis—Senate Bill 500, 1990 Senate Judicial Proceedings Committee. Those court decisions prompted calls for immediate legislative action regarding the application of the statute of repose to manufacturers generally and, more specifically, to manufacturers of asbestos. ³⁶⁸ Those lower court decisions also generated much debate and controversy regarding the original intent of the 1970 General Assembly as to whether manufacturers were ever intended to be protected by § 5-108(a). See, e.g., Leg.Ref.Update at 8.

In 1990, two bills were introduced in the General Assembly— Senate Bill 500 and House Bill 1025—that, as originally drafted, excluded actions against “a manufacturer or supplier of any materials, equipment, machinery, or other articles that are part of an improvement to real property” from the scope of § 5-108(a). During consideration of both bills, proponents of the express exclusion of all manufacturers claimed that the statute of repose was never intended to apply to manufacturers. In response, opponents argued that manufacturers were intended to be included or that, at best, the 1970 Legislature had never considered whether the statute would apply to manufacturers. 10 After considerable debate within the Legislature, Senate Bill 500 and House Bill 1025 were both amended and the broad language excluding all manufacturers from § 5-108(a) was replaced by language excluding only manufacturers of ³⁶⁹ asbestos products. 11 Although the enrolled version of Senate Bill 500 specifically identified only manufacturers and suppliers of asbestos products, many opponents of the bill asserted that the bill was ambiguous and that, as written, Senate Bill 500 could be construed to exclude other manufacturers from § 5-108(a). Senate Bill 500 passed both Houses but was vetoed by Governor William Donald Schaefer on May 29, 1990.

In his letter to the President of the Senate, the Governor wrote: Many of those in favor of this legislation argue that the bill is only a clarification of the original 1970 enactment, ³⁷⁰ which they farther believe has been incorrectly interpreted by many trial courts. To the extent that it is really possible to know what a Legislature “intended” 20 years ago, our own analysis leads to the conclusion that this bill is not a clarification of the law, but is in fact a major, substantive revision of the Statute of Repose. That fact must not be lost. Id. at 2 (available at the Department of Legislative Reference, Bill File for Senate Bill 500).

In concluding his veto letter, the Governor pledged “to work with the sponsors and advocates of this issue next Session on compromise legislation.... ” Id. at 3. In 1991, two administration bills—Senate Bill 335 and House Bill 496—were introduced which expressly excluded only manufacturers of asbestos or products containing asbestos. In testimony before the Senate Judicial Proceedings Committee and the House Judiciary Committee, David Iannucci, the Chief Legislative Officer of the Office of the Governor, explained: The legislation [Senate Bill 335 and House Bill 496] would waive the protection of the Statute of Repose only for asbestos. While other materials could later be found to be dangerous, later General Assemblies would be in a position to make the policy determinations relevant to those materials.

Id. at 4 (emphasis added). Senate Bill 335, approved by both Houses, was enacted as Chapter 271, 1991 Laws of Maryland, and the exclusion of asbestos manufacturers and suppliers appeared in § 5-108 as subsections (d)(2)(h), (iii) and (iv). As it existed at the time of Rose’s suit and as it exists today, § 5-108(a) provides a 20-year limitation for all actions resulting from the defective and unsafe condition of an improvement to real property. Section 5-108(a) thus creates a broad grant of immunity for all persons who might otherwise be held liable ³⁷¹ for a defect in an improvement to real property, subject only to the express exclusions of § 5-108(d).

While the defendant’s identity is crucial in determining the applicability of subsections (b) and (d), it plays no role in determining whether subsection (a) applies. Under subsection (a), a defendant’s immunity from suit after 20 years have expired does not turn on the defendant’s occupation or on the type of service or product the defendant provides. Rather, the defendant’s immunity from liability emanates from the fact that the plaintiffs injury “resulted from a defective or unsafe condition of an improvement to real property” that was substantially completed over 20 years prior to the time of the plaintiffs injury. See First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862, 865 (4th Cir.1989), cert. denied, 493 U.S. 1070 , 110 S.Ct. 1113 , 107 L.Ed.2d 1020 (1990); J.H. Westerman Co., 499 A.2d at 120 .

C. We are aware that some courts in other jurisdictions have excluded product manufacturers and suppliers