Slate v. Zitomer

Levine, J., dissenting: I respectfully dissent. On the key issue in this case, whether the amendment to Maryland Code (1957, 1970 Repl. Vol., 1973 Cum. Supp.) Art. 67, § 4 (a) is to be given retroactive application, the majority holds: “. . . the rule quoted above from Janda [v. General Motors, 237 Md. 161, 168-69 , 205 A. 2d 228 (1964)] is applicable to require that prospective application of the amended version of Art. 67, § 4 (a) be made, unless the Legislature has clearly expressed its intent that the provision be retroactive in application.

Certainly, the Legislature did not ⁵⁴⁶ clearly express an intention that Ch. 781+ be made retroactive to causes of action accruing after July 1, 1968.” (emphasis added). While agreeing with the general rule from Janda relied on by the majority, I would hold that here the Legislature has clearly expressed its intent that the provision be retroactive in application. If the words “shall be applied prospectively and retrospectively” are deemed insufficient for this purpose, I am at a loss to understand what the majority would regard as a clear expression of intent. The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent, Md.-Nat’l Cap.

P. & P. v. Rockville, 272 Md. 550, 555 , 325 A. 2d 748 (1974); Radio Com., Inc. v. Public Serv. Comm’n, 271 Md. 82, 93 , 314 A. 2d 118 (1974); Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 393 , 306 A. 2d 534 (1973); Silberman v. Jacobs, 259 Md. 1 , 267 A. 2d 209 (1970); and if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature, Md.-Nat’l Cap. P. & P. v. Rockville, supra, 272 Md. at 556 ; Scoville Serv., Inc. v. Comptroller, supra, 269 Md. at 393-94 . Where, as here, however, a literal reading of the statute leads to totally absurd consequences which could never have been intended by the Legislature, this Court must determine the real legislative intent, Fairchild v. Maritime Air Serv., 274 Md. 181, 186 , 333 A. 2d 313 (1975); Blocker v. Harlow, 268 Md. 571, 584 , 303 A. 2d 395 (1973); Farber’s, Inc. v. Comptroller, 266 Md. 44, 51 , 291 A. 2d 658 (1972); Pan Am.

Sulphur v. State Dep’t, 251 Md. 620, 627 , 248 A. 2d 354 (1968). Furthermore, wherever possible, a statute should be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory, St. Paul Fire & Marine Ins. Co. v. Insurance Commissioner, 275 Md. 130 , 339 A. 2d 291 ; A. H. Smith Sand & Gravel v. Dep’t, 270 Md. 652, 659 , 313 A. 2d 820 (1974); Baltimore City v. United Stores, 250 Md. 361, 368-69 , 243 A. 2d 521 (1968); Thomas v. Police Commissioner, 211 Md. 357, 361 , 127 A. 2d 625 (1956). ⁵⁴⁷ Chapter 784 of the Laws of 1971, effective July 1, 1971, amended Art. 67, § 4 (a) so as to enlarge the limitations period in wrongful death cases from two to three years. Section 2 of Ch. 784 provides: “And be it further enacted, That the provisions of this Act shall be applied prospectively and retrospectively to have effect upon or application to any cause of action arising prior to July 1, 1968.” (emphasis added).

Read literally, this section would apply to all wrongful death cases arising prior to July 1, 1968, and +o such cases arising after July 1, 1971; however, it would not apply to those cases arising between July 1, 1868, and July 1, 1871. For all cases arising prior to July 1, 1868, therefore, the new three-year limitations period would have elapsed prior to the effective date of the very amendment enlarging the limitations period. In short, under this interpretation, § 2 of Ch. 784 expired before it even applied, except for the remote possibility of a wrongful death suit being filed prior to the effective date of the amendment, but between two and three years after the cause of action accrued. 1 Such an absurd reading of the amendment, which renders an entire section virtually superfluous and meaningless, cannot be what the Legislature contemplated. Since it is to be assumed that the Legislature intended a rational result in enacting § 2, one can only conclude that it meant to apply the amendment retroactively to all cases arising after July 1, 1868, that is, to all cases which would not have been barred under the enlarged limitations period as of the effective date of the amendment.

In my view, the words “prior to” can only be deemed an error of draftsmanship and, in light of the true legislative intent, should be replaced with the words “subsequent to.” Having thus concluded that the Legislature has clearly ⁵⁴⁸ expressed its intent to apply Ch. 784 retroactively, I would reach the constitutional issues not decided by the majority. In Smith v. Westinghouse Electric, 266 Md. 52 , 291 A. 2d 452 (1972), this Court declared § 2 of Ch. 784 unconstitutional as literally written, when applied to a case which arose prior to July 1, 1968. We there held that the provision violated both the Equal Protection and Due Process guarantees of the Federal Constitution, as well as Article 23 of the Maryland Declaration of Rights. The Equal Protection violation is readily obviated by a construction of § 2 which avoids the arbitrary distinction between cases arising prior to July 1, 1968, and those arising subsequent thereto.

Also, Due Process was held to be violated on the ground that the plaintiff’s substantive right to bring a wrongful death action had terminated prior to the effective date of the amendment, and that the attempt in § 2 to revive this expired substantive right deprived the defendant of a vested property interest. Thus, Smith v. Westinghouse Electric, supra, stands for the principle that due process is violated by a retroactive application of Ch. 784 to causes of action which had expired under the old limitations provision as of the effective date of the amendment, i.e., to causes of action accruing prior to July 1, 1969. In the present cases, which arose subsequent to July 1, 1969, the plaintiffs’ rights had not yet expired when the amendment took effect on July 1, 1971. Consequently, no vested property interests of the defendants were infringed, and due process was not violated.

See Pratt v. Hayes, 20 Ill.App.2d 457 , 156 N.E.2d 290, 296 , 79 A.L.R.2d 1071 (1959); Nichols v. Wilbur, 256 Ore. 418 , 473 P. 2d 1022, 1023 (1970). The fact that the amendment has been declared unconstitutional as to some circumstances, as the majority noted in footnote 2 of its opinion, does not mean it is unconstitutional in toto, Compensation Board v. Albrecht, 183 Md. 87, 96 , 36 A. 2d 666 (1944). It is my opinion, therefore, that the Legislature clearly intended the amendment to apply retroactively to cases ⁵⁴⁹ arising subsequent to July 1, 1968, but that such application is unconstitutional under Smith v. Westinghouse Electric, supra, in regard to those cases arising prior to July 1, 1969. The amendment, therefore, would apply retroactively to all wrongful death cases arising after July 1, 1969.

Since the two cases before us arose subsequent to that date, I would affirm the decision of the Court of Special Appeals. Chief Judge Murphy authorizes me to state that he concurs in this opinion. . This is the fact situation which, on constitutional grounds, was held not to support recovery in Smith v. Westinghouse Electric, infra. Eldridge, J., delivered the opinion of the Court.

Murphy, C. J., and Levine, J., dissent and Levine, J., filed a dissenting opinion in which Murphy, C. J., concurs at page 545 infra. The two cases which we decide in this opinion, Slate v. Zitomer and Church v. Gasperich, present the issue of whether a 1971 amendment to the wrongful death statute, extending the period of limitations for bringing a wrongful death action from two years to three years, is to be applied retroactively to such actions arising after July 1, 1969, but before July 1,1971, the effective date of the amendment. The extension of the period of limitations for a wrongful death action was accomplished by enactment of Chapter 784 of the Acts of 1971. Section 1 of Chapter 784 amended Maryland Code (1957, 1970 Repl.

Vol., 1973 Cum. Supp.), Art. 67, § 4 (a), 1 by providing that “every such action shall be commenced within three years after the death of the deceased person” instead of within two years after death as previously set forth. Section 2 of Chapter 784 provided: “the provisions of this Act shall be applied prospectively and retrospectively to have effect upon or application to any cause of action arising prior to July 1, 1968.” In Smith v. Westinghouse Electric, 266 Md. 52 , 291 A. 2d 452 (1972), this Court was confronted with the issue of the constitutionality of § 2 of Ch. 784, when it was applied as literally written. The cause of action for wrongful death involved in Smith v. Westinghouse Electric had arisen on June 15, 1968, and the wrongful death suit had been filed on June 9,1971.

This Court held that the retroactive application of the three year period of limitations to causes arising ⁵³⁷ before July 1, 1968, was unconstitutional because it violated the due process and equal protection clauses of the Federal Constitution, as well as Article 23 of the Maryland Declaration of Rights. Turning to the present cases, in Slate v. Zitomer the plaintiffs alleged that their decedent, Ruth Miriam Zitomer, was injured in a motor vehicle accident on October 20, 1969, and was thereafter admitted for medical treatment to Leland Memorial Hospital. They further alleged that, as a result of the malpractice of the hospital and Herman I. Slate, a physician, their decedent died on November 6, 1969. The plaintiffs filed their declaration against Dr. Slate and Leland Memorial Hospital on July 13, 1972, in the Circuit Court for Prince George’s County.

Both defendants filed pleas of limitations and motions for summary judgment. The circuit court struck the pleas and denied the motions. However, on motions for reconsideration, the circuit court (Bowie, J.) reconsidered its ruling and granted the pleas of limitations. The court, in concluding that the causes of action were barred by limitations, relied on Smith v. Westinghouse Electric, supra; Blocher v. Harlow, 268 Md. 571 , 303 A. 2d 395 (1973); and Judge Beardmore’s opinion for the Circuit Court for Anne Arundel County in the case of Adams v. Culp (Law No. C-7014, 1973).

The plaintiffs then appealed to the Court of Special Appeals which reversed the decision of the circuit court, Zitomer v. Slate, 21 Md. App. 709 , 321 A. 2d 328 (1974). We granted certiorari and consolidated Slate v. Zitomer with Church v. Gasperich, which had been decided on the same day by the Court of Special Appeals. In Church v. Gasperich, the plaintiff’s decedent, Eva Gasperich, had died on November 15, 1969, at the age of 80, while under the care and treatment of the defendant physician, Gerard Church. The plaintiff filed a wrongful death suit against Church on October 25, 1972, in the Circuit Court for Anne Arundel County.

The defendant filed a plea of limitations and a motion for summary judgment. As in Slate v. Zitomer, the circuit court at first struck the defendant’s plea and denied his motion. On a motion for ⁵³⁸ reconsideration the court (Melvin, J.) granted the defendant’s plea, relying on Smith v. Westinghouse Electric, supra, and on Adams v. Culp, supra. As noted above, an appeal to the Court of Special Appeals was taken.

The Court of Special Appeals, in deciding Slate v. Zitomer and Church v. Gasperich, held first that the General Assembly had the constitutional authority to enlarge retroactively the period of limitations for a wrongful death action when the cause of action had not yet been barred under the period of limitations in effect when the cause of action arose. That court then stated that the act extending the period of limitations to three years “shows ‘a contradictory intent’ ” with respect to its retrospective application. Nevertheless, the Court of Special Appeals concluded that examination of the act revealed that the Legislature had intended the new period to apply to causes of action in existence, but not yet barred, as of the effective date of the amendment, July 1,1971. We cannot agree with the Court of Special Appeals’ holding that the language of the act shows a legislative intent to apply the new period of limitations retroactively to causes of action arising after July 1, 1969.

Rather, we conclude that retroactive application of the act to causes of action arising after July 1, 1969, is clearly not justified by the statutory language. Therefore, it is not necessary for us to reach the issue of the Legislature’s constitutional power to apply retroactively the amendment in the manner upheld by the Court of Special Appeals. 2 ⁵³⁹ The plaintiffs argue that the words of Ch. 784, § 2, that “the provisions of this Act shall be applied prospectively and retrospectively to have effect upon or application to any cause of action arising prior to July 1, 1968,” indicate a legislative intent that the amendment of the period of limitations was to have a retrospective application. They further argue that the phrase “prior to July 1, 1968,” should be deemed an error of draftsmanship, and that the real legislative intent was that the new period of limitations apply to cases arising “subsequent” to July 1, 1968. It is true that the primary rule in the construction of statutes is “to effectuate the real and actual intention of the legislature.” Height v. State, 225 Md. 251, 257, 170 A. 2d 212 (1961).

However, in ascertaining the legislative intent, “the words of the statute are [deemed to be] used in their ordinary and popular sense and if the face of the statute does not show some contradictory intention then we will look no further.” Department v. Greyhound, 247