SVF Riva Annapolis LLC v. Gilroy

Adkins, J. A statute of repose "shelters legislatively-designated groups from an action after a certain period of time." 1 Anderson v. United States , 427 Md. 99 , 118, 46 A.3d 426 (2012). Maryland's statute of repose, codified at Md. Code (1973, 2013 Repl. Vol.), § 5-108 of the Courts and Judicial Proceedings Article ("CJP"), bars certain claims relating to injuries caused by improvements to real property. CJP § 5-108(d)(2) lists several exceptions to the statute of repose.

Subsection (d)(2)(i) provides that the protections of the statute shall not apply if the "defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred ...." 2 The remaining subsections, (d)(2)(ii)-(iv), eliminate the statute's protection for certain defendants in cases where a claimed injury was caused by exposure to asbestos. In this case, we must determine whether the possession and control exception opens defendants to liability even in cases that do not involve asbestos. BACKGROUND On January 13, 2012, Sean McLaughlin arrived at the Chuck E. Cheese restaurant located at the Festival at Riva Shopping Center in Annapolis, Maryland to repair the HVAC unit on the restaurant's roof. McLaughlin placed a ladder on one of the restaurant's exterior walls that he presumably thought led up to the building's roof.

The wall enclosed an open-air garbage area typically occupied by dumpsters or trash compactors. After McLaughlin climbed the ladder, he mounted the wall and fell 20 feet to the concrete pad on the other side. McLaughlin sustained severe injuries and died 12 days later. Respondents Moreen Elizabeth Gilroy and McLaughlin's other survivors 3 filed a wrongful death action in the United States District Court for the District of Maryland against Petitioners SVF Riva Annapolis, LLC ("SVF"), the owner of the shopping center in which Chuck E. Cheese was located, and Rappaport Management Corporation ("Rappaport"), the shopping center's property manager.

In federal court, SVF joined the tenant and restaurant operator, CEC Entertainment, Inc. ("CEC"), in a third-party complaint. Gilroy amended her federal complaint to include CEC. The federal court dismissed the complaint without prejudice for lack of subject-matter jurisdiction because the parties lacked complete diversity. Gilroy refiled the complaint against SVF, Rappaport, and CEC in the Circuit Court for Anne Arundel County.

The complaint alleged, in negligence and premises liability claims, that all three defendants failed to warn McLaughlin that the wall had no roof access. SVF and Rappaport filed separate motions for summary judgment and CEC filed a motion to dismiss. SVF and Rappaport both contended that the statute of repose barred Gilroy's claims because the building was completed in 1990, beyond the 20-year limit imposed by the statute, and because the possession and control exception applied only to asbestos cases. Additionally, Rappaport argued that as the property manager, it was not in "possession and control" of the property, and therefore not subject to liability.

CEC moved to dismiss on the grounds that McLaughlin was contributorily negligent, and the action was untimely under Maryland's Wrongful Death Act, CJP § 3-904(g)(1). CEC also incorporated SVF's arguments regarding the statute of repose. After a hearing, the Circuit Court, ruling that the statute of repose applied, granted the motions for summary judgment and motion to dismiss and explained that the possession and control exception only applies to asbestos-related claims. The judge explained: [T]he Court notes that subsection (d), while it has the language the plaintiff has pointed out, all relates to asbestos.

And in this section it appears that the [L]egislature was clearly trying to create the carve out or the exception for the asbestos cases. And to read this otherwise would render the statute of repose, basically meaningless, and there would be no statute of repose. The Court of Special Appeals reversed-holding that the possession and control exception is not limited to asbestos cases. See Gilroy v. SVF Riva Annapolis LLC , 234 Md. App. 104 , 125, 168 A.3d 1130 (2017).

We granted certiorari to answer the following question: 4 Does the possession and control exception to the statute of repose apply in non-asbestos cases? For the reasons set forth below, we hold that it does and shall affirm the decision of the Court of Special Appeals. DISCUSSION The parties appeal the Circuit Court's decision to grant the motions for summary judgment and a motion to dismiss. When considering such motions, we must first determine whether there are any genuine disputes of material fact.

Koste v. Town of Oxford , 431 Md. 14 , 24-25, 63 A.3d 582 (2013). If there is no such dispute, then we decide whether the lower court's legal conclusion was legally correct. Id. at 25 , 63 A.3d 582 . Here, the Circuit Court reached a conclusion regarding the scope of CJP § 5-108(d)(2)(i).

Assessing a lower court's interpretation of a statute is a question of law which, we review without deference. State v. Neiswanger Mgmt. Servs., LLC , 457 Md. 441 , 455, 179 A.3d 941 (2018) ("We review the Circuit Court's statutory interpretation without deference."). The issue here is one of statutory interpretation: whether the statute's possession and control exception applies in non-asbestos cases.

"The cardinal rule of statutory construction is to ascertain and effectuate the intent of the [L]egislature." Blake v. State , 395 Md. 213 , 224, 909 A.2d 1020 (2006). When interpreting a statute, "[t]his Court provides judicial deference to the policy decisions enacted into law by the General Assembly." Phillips v. State , 451 Md. 180 , 196, 152 A.3d 712 (2017). This analysis assumes, however, "that the [L]egislature's intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute ...." Id. We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.

If the language of the statute is clear and unambiguous, we need not look beyond the statute's provisions and our analysis ends. Occasionally we see fit to examine extrinsic sources of legislative intent merely as a check of our reading of a statute's plain language. In such instances, we may find useful the context of a statute, the overall statutory scheme, and archival legislative history of relevant enactments. Douglas v. State , 423 Md. 156 , 178, 31 A.3d 250 (2011) (quoting Evans v. State , 420 Md. 391 , 400, 23 A.3d 223 (2011) ).

Consistent with these principles, we begin with an analysis of the plain language of CJP § 5-108. Plain Language CJP § 5-108 is titled "[i]njury to person or property occurring after completion of improvement to realty." In pertinent part, it provides: (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. * * * (d)(1) "Supplier" defined. -In this subsection, "supplier" means any individual or entity whose principal business is 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 [under certain conditions]: .... (Emphasis added).

CJP § 5-108(a) prohibits a plaintiff from bringing a claim for wrongful death, personal injury, or injury to personal property resulting from an improvement to real property more than 20 years after the improvement. CJP § 5-108(b) provides that such actions have a 10-year limit when brought against certain classes of professionals such as architects, professional engineers, and contractors. The possession and control exception excludes certain defendants from the protections articulated in CJP § 5-108(a) and (b). CJP § 5-108(d)(2)(ii)-(iv) all relate to claims against manufacturers or suppliers of asbestos products.

The possession and control exception, however, makes no mention of asbestos and eliminates the statute's protection for any defendant "in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred[.]" Id. (d)(2)(i). As the Court of Special Appeals observed, the four exceptions in CJP § 5-108(d)(2) are linked by the conjunction "or." Gilroy , 234 Md. App. at 111 , 168 A.3d 1130 . "And" and "or" are both conjunctions used to link other words, phrases, or clauses.

"Or" has a disjunctive meaning while "and" has a conjunctive meaning. Compare The American Heritage Dictionary of the English Language 1236 (4th ed. 2006) ("or" is a conjunction "[u]sed to indicate an alternative, usually only before the last term of a series ...."), with id. at 66 ("and" is a conjunction meaning "[t]ogether with or along with; in addition to; as well as[; u]sed to connect words, phrases, or clauses that have the same grammatical function in a construction."). 5 In several cases, Maryland courts have interpreted "or" consistently with its disjunctive meaning. In Thanos v. State , 282 Md. 709 , 716-17, 387 A.2d 286 (1978), we recognized the "well-settled principle that where, as here, a statute forbids the doing of any of several acts stated disjunctively, a charging document alleging more than one act in a single count, even in the very language of the statute, will be defective as indefinite, since the disjunctive renders it uncertain which alternative is intended." (footnote omitted). Likewise, in Burnett v. Spencer , 230 Md. App. 24 , 33, 146 A.3d 560 (2016), the Court of Special Appeals observed: [Md.] Rule 2-631 states that "judgments may be enforced only as authorized by the rules or by the statute." Because the rule employs the disjunctive term "or," it is obvious, as a matter of logic and grammar, that a person may enforce a judgment by a method that is authorized by the rules alone: the method need not also be expressly authorized by the statute.

(cleaned up) (emphasis in original). See also Moore v. State , 388 Md. 623 , 633-34, 882 A.2d 256 (2005) ("or" is disjunctive in a criminal statute setting out a series of prohibited practices); County Council of Prince George's Cty. v. Dutcher , 365 Md. 399 , 418, 780 A.2d 1137 (2001) (the Legislature recognized two distinct administrative processes by joining them with "the disjunctive 'or' "); Schlossberg v. Citizens Bank of Md. , 341 Md. 650 , 657, 672 A.2d 625 (1996) ("or" as used in a confessed judgment rule has a disjunctive meaning). This rule is not absolute though. " '[A]nd' and 'or' may be used interchangeably when it is reasonable and logical to do so." Little Store, Inc. v. State , 295 Md. 158 , 163, 453 A.2d 1215 (1983). 6 Disagreeing with the Court of Special Appeals' analysis of the statutory language, Petitioners argue that we should limit the possession and control exception to those cases involving asbestos.

The intermediate appellate court determined that there were four exceptions to the statute of repose-linked by the conjunction "or," which typically has a disjunctive meaning. See Gilroy , 234 Md. App. at 111 , 168 A.3d 1130 . The Petitioners dismiss this analysis, arguing that a logical interpretation of the subsection is to treat all four exceptions, including the "possession and control" exception, as limited to asbestos-related claims. Gilroy retorts that the plain language is clear, and that no such limitation should be read into the statute.

Both Petitioners and Gilroy point to cases from this Court-in which we discussed the possession and control exception only in passing-as support for their arguments. Gilroy relies on Rose v. Fox Pool Corp. , 335 Md. 351 , 643 A.2d 906 (1994). In that case, we considered whether the statute of repose barred a suit against a manufacturer for injuries sustained in a swimming pool. The pool manufacturer argued that the statute of repose shielded it from liability even though the statute did not expressly mention manufacturers as a protected class of defendants.

Id. at 358 , 643 A.2d 906 . We decided that the statute of repose protected manufacturers from actions brought beyond the 20-year limitation contained in CJP § 5-108(a). We emphasized that CJP § 5-108(a) offers broad protection because it does not name specific classes of defendants. Therefore, the statute protects all defendants unless they are expressly recognized by one of the exceptions in CJP § 5-108(d).

Id. at 361 , 643 A.2d 906 . We explained: 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)(i) (defendant in possession and control) and (d)(2)(ii), (iii), and (iv) (all relating to the exclusion of manufacturers and suppliers of asbestos) , subsection (a) does not identify the class of persons to which it applies. Id. at 360 , 643 A.2d 906 (emphasis added). Gilroy emphasizes our characterization of the possession and control exception in Rose and urges us to rely upon it here.

Petitioners rely on Hagerstown Elderly Assocs. Ltd. P'ship v. Hagerstown Elderly Bldg. Assocs. Ltd. P'ship , 368 Md. 351 , 793 A.2d 579 (2002).

In Hagerstown Elderly , a real estate partnership sued a construction partnership after part of a housing facility's exterior wall crumbled during a violent storm. Id. at 355-56 , 793 A.2d 579 . The construction partnership, consisting of construction contractors, argued that CJP § 5-108(b) barred the plaintiffs' suit for breach of contract. Id. at 356-57 , 793 A.2d 579 .

The Court weighed the question of whether the statute of repose applied to breach of contract claims. Id. at 358-59 , 793 A.2d 579 . Reasoning that CJP § 5-108(b) shields contractors from liability after the ten-year period provided by the statute, we decided that the statute of repose barred the action. Id. at 363 , 793 A.2d 579 .

In analyzing the operation of the statute of repose, we discussed CJP § 5-108(d) only in passing, in a footnote, and said: " Section 5-108(d) provides an exception to the twenty-year period set forth in subsection (a) and the ten-year period set forth in subsection (b) for certain actions based on injuries arising from exposure to asbestos products. That exception does not apply in this case ." Id. at 358 n.3, 793 A.2d 579 (emphasis added). Petitioners claim that this bolded language limits the (d)(2) possession and control exception to only asbestos cases. But we do not think the Court, while focusing on a different issue-whether the statute of repose defense applied to a contract claim-intended to establish a rule at odds with the plain language of subsection (d)(2).

The Circuit Court, recognizing the existence of the disparate characterizations in Hagerstown Elderly and Rose , explicitly indicated it relied upon Hagerstown Elderly partially because that case came after Rose . But neither case involved express consideration of the meaning of the possession and control exception. Instead, both cases included only a fleeting mention of the exceptions in CJP § 5-108(d). For this reason, we do not find either Hagerstown Elderly or Rose to be particularly helpful in our analysis of the language of the possession and control exception.

Despite its proximity to three additional exceptions relating to asbestos, the possession and control exception makes no mention of asbestos. Furthermore, the exceptions are joined by the disjunctive "or." This suggests that the provisions listed in CJP §§ 5-108(d)(i)-(iv) set forth four independent exceptions to the statute of repose. See Thanos 282 Md. at 716 -17 , 387 A.2d 286 ; Burnett , 230 Md. App. at 33 , 146 A.3d 560 ; Scalia & Garner, supra , § 12, at 116. Although we offered divergent characterizations of these exceptions in Hagerstown Elderly and Rose , upon careful inspection, the plain language of the possession and control exception is clear.

That exception unambiguously states that "[t]his section does not apply if: [t]he defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred." CJP § 5-108(d)(2)(i). For these reasons, we conclude that the possession and control exception applies even when the claimed injury does not result from exposure to asbestos. We are not persuaded otherwise by Petitioners' argument that this interpretation nullifies the statute of repose for most classes of defendants. Our interpretation of the exception does not expand liability for builders, contractors, sellers, or others involved in the construction of improvements of real property.

The possession and control exception, as the language indicates, only applies to those in possession and control of the real property as an owner, tenant, or otherwise. So builders, contractors, or sellers-who are no longer involved with the property post-completion-may move on and claim the protection of the statute of repose. To be sure, the caption for CJP § 5-108(d) could be misleading. The caption-added by a legal publishing company-is "[a]pplicability of section to asbestos-related claims." When divining the meaning of a statutory provision, we do not allow such unsanctioned additions to impact our analysis.

This phrase does not appear in the official copies of the Maryland Code and was not passed by the Legislature. Md. Code (2014, 2016 Supp.), § 1-208 of the General Provisions Article prohibits reliance on subsection captions or catchlines: Unless otherwise provided by law, the caption or catchline of a section or subsection that is printed in bold type, italics, or otherwise: (1) is intended as a mere catchword to indicate the contents of the section or subsection; and (2)(i) may not be considered as a title of the section or subsection ; and (ii) may not be considered as a title if the section, subsection, caption, or catchline is amended or reenacted. (Emphasis added). See also Mayor & City Council of Balt. v. Hooper , 312 Md. 378 , 388, 539 A.2d 1130 (1988) (code section caption or headline has no relevance with respect to intent of Legislature in enacting statute within that section); Montgomery Cty. v. Eli , 20 Md. App. 269 , 276, 315 A.2d 136 (1974) ("[Section H]eadings are not the words of the [L]egislature and cannot be read to inject an intent not expressed in the body of law.").

Both Petitioners and Gilroy argue that the legislative history of the possession and control exception supports their respective interpretations. When interpreting