Trimper v. Porter-Hayden

RODOWSKY, Judge. The question presented in these consolidated appeals is whether wrongful death and survival actions involving exposures to asbestos are time barred when brought more than three years after death or whether some form of discovery rule applies. For reasons hereinafter set forth we shall hold that two separate time bars, each of which began to run at death, had respectively expired prior to suit on these latent disease claims. One of the plaintiffs below and an appellant here is Charlotte M. Trimper (Charlotte), the widow of Frank R. Trimper (Frank).

Charlotte’s complaint avers that Frank had been employed from approximately July 1948 until 1978 at the United States Coast Guard Yard in Curtis Bay, Maryland where he was exposed to asbestos and asbestos dust. Frank was hospitalized in January of 1980 and died ³³ February 8, 1980, due to a carcinoma allegedly resulting from exposure to asbestos. Charlotte qualified as personal representative of Frank’s estate on May 4, 1983, and instituted the subject wrongful death and survival actions on May 24, 1983, more than three years after Frank’s death. A statement of the case pursuant to Maryland Rule 1026(e) recites that Frank “was not aware of any association between his asbestos exposure and his illness during his lifetime” and that Charlotte “filed suit within three years of the date on which she was first aware, or reasonably should have been aware, of that association.” Plaintiff and appellant in the other action is Sylvia Sand-berg (Sylvia), widow of Louis Sandberg (Louis).

Sylvia’s complaint avers that Louis had been employed in various capacities and employments in which he was exposed to asbestos from 1942 until 1980. Louis died November 30, 1980, due to a carcinoma allegedly resulting from exposure to asbestos. Sylvia qualified as personal representative of Louis’ estate on July 31, 1984. She instituted the subject wrongful death and survival actions on August 10, 1984, more than three years after Louis’ death.

A Rule 1026(e) statement of the case recites that Louis “was not informed of any association between his asbestos exposure and his illness during his lifetime, and further that [Sylvia] did not know, and could not in the exercise of reasonable diligence have known until March, 1983 of that association.” ' The Circuit Court for Baltimore City entered judgment in favor of all of the defendants on each claim in both suits, ruling that the claims were time barred. Each widow appealed to the Court of Special Appeals where the two appeals were consolidated. Appellants then petitioned this Court for the writ of certiorari, the appellees agreed that we should issue the writ, and we did so prior to consideration of the matter by the intermediate appellate court. Because different statutes are involved, we consider separately the wrongful death claims and the survival claims.

Wrongful death claims are governed by Md.Code (1974, ³⁴ 1984 Rep. Yol.), Title 8, Subtitle 9, “Wrongful Death,” of the Courts and Judicial Proceedings Article (CJ). Of particular concern here is CJ § 3-904(g), providing that “[a]n action under [the Wrongful Death] subtitle shall be filed within three years after the death of the injured person.” Limitations on survival actions, however, are provided by the general statute of limitations, CJ § 5-101. It provides: A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

While §§ 3-904(g) and 5-101 both establish periods of three years, in wrongful death cases the three years measures from death, an objectively determinable event in almost all cases, while in survival actions the three years measures from the date of accrual of the cause of action, a less objectively determinable starting point. I The Maryland wrongful death statute authorizes two classes of persons to bring such an action. Primary beneficiaries are the wife, husband, parent, and child of the deceased person. CJ § 3-904(a).

If there are no such persons who qualify, “any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased” may bring a wrongful death action. CJ § 3-904(b). “[D]amages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death.” CJ § 3-904(c). Damages awardable to primary beneficiaries are not restricted to pecuniary loss but may include solatium damages. CJ § 3-904(d).

Appellants contend that, where the decedent died blamelessly ignorant of being the victim of a tort and where that tort caused death, the eligible beneficiary or beneficiaries should have up to three years from the time when they knew or should have known of the cause of death within which to institute a wrongful death action. In effect, appellants ask that we apply to wrongful death actions the discovery rule laid ³⁵ down in Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978) for determining the commencement of the running of limitations under CJ § 5-101 in latent disease cases. Harig involved a living plaintiff whose last known exposure to asbestos had been in January of 1955. Shortly after November of 1975 she developed a cough, and on October 27, 1976, she was diagnosed as having a malignant mesothelioma.

She instituted suit May 23, 1977. Applying CJ § 5-101 and interpreting the word “accrues” therein, we held that “in situations involving the latent development of disease, a plaintiff’s cause of action accrues when he ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of his injury.” 284 Md. at 83 , 394 A.2d at 306 . We cannot, however, apply the foregoing rationale to the time bar applicable to wrongful death actions. A long line of precedent in this Court and the unambiguous language of CJ § 3-904(g) prevent adopting a discovery rule for such claims.

The rule in Maryland is that, since the wrongful death statute created a new liability not existing at common law, compliance with the period of limitations for such actions is a condition precedent to the right to maintain the action. The period of limitations is part of the substantive right of action. Slate v. Zitomer, 275 Md. 534, 542 , 341 A.2d 789, 794 (1975), cert. denied, 423 U.S. 1076 , 96 S.Ct. 862 , 47 L.Ed.2d 87 (1976), citing Smith v. Westinghouse Electric Corp., 266 Md. 52, 55-56 , 291 A.2d 452, 454 (1972); Dunnigan v. Cobourn, 171 Md. 23, 25-26 , 187 A. 881, 884 (1936); and State v. Parks, 148 Md. 477, 479-82 , 129 A. 793, 795 (1925). See also Cotham and Maldonado v. Board, 260 Md. 556, 563 , 273 A.2d 115, 119 (1971); London Guarantee & Accident Co. v. Balgowan Steamship Co., 161 Md. 145, 157 , 155 A. 334, 338 (1931).

Thus, were we, by applying a discovery rule, to allow wrongful death actions to be filed more than ³⁶ three years after death, we would be violating the legislatively imposed time limitation on the legislatively created right of action. The enlargement requested by appellants of the time limitation cannot be accomplished in the guise of statutory construction. In plain words CJ § 3-904(g) provides that a wrongful death action “shall be filed within three years after the death of the injured person.” There is no room for judicial interpretation. When the problem presented here has arisen under the wrongful death statutes of other states which measure the time within which suit is to be instituted by a fixed period “after death,” the majority of courts hold that the statute leaves no room for judicial adoption of some form of discovery rule.

See Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548 (3d Cir.1985) (former Pennsylvania statute); Cadieux v. International Telephone and Telegraph Corp., 593 F.2d 142 (1st Cir.1979) (Rhode Island statute); Bazdar v. Koppers Co., 524 F.Supp. 1194 (N.D.Ohio 1981); Stiles v. Union Carbide Corp., 520 F.Supp. 865 (S.D.Tex.1981); Pollard v. United States, 384 F.Supp. 304 (N.D.Ala.1974); Presslaff v. Robins, 168 N.J. Super. 543 , 403 A.2d 939 (1979); Morano v. St. Francis Hospital, 100 Misc.2d 621 , 420 N.Y.S.2d 92 (1979); Ness v. St. Aloisius Hospital, 301 N.W.2d 647 (N.D.1981); Anthony v. Koppers Co., 496 Pa. 119 , 436 A.2d 181 (1981) (plurality of three Justices, with two Justices concurring in the result); Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432 , 471 A.2d 1233 (1984). There are cases to the contrary. Four of them involve the Illinois wrongful death statute which provides that such actions are to be commenced “within 2 years after the death” of the decedent. A district of the Appellate Court of Illinois applied a discovery rule to that statute in an airplane crash case in which the wreckage, and the fact of death, had not been discovered until more than two years after the last radio communication with the plane.

The court balanced the difficulty of proof created by the passing of time against the hardship to the plaintiff. Praznik v. ³⁷ Sport Aero, Inc., 42 Ill.App.3d 330 , 355 N.E.2d 686 (1976). Praznik became part of the authority cited for applying a discovery rule to a wrongful death claim based on alleged medical malpractice in Fure v. Sherman Hospital, 64 Ill.App.3d 259 , 21 Ill.Dec. 50 , 380 N.E.2d 1376 (1978). In that case one of the plaintiff’s arguments was that the applicable statute was not the wrongful death act but a special act relating to medical malpractice claims under which limitations were to be measured from “the date on which the claimant knew ... of the injury or death,” and that limitations did not begin to run until the claimant knew of the negligent act or omission which caused death.

Because much of the Fure opinion is a discussion of policy, it is unclear whether the court adopted the plaintiff’s argument or applied a discovery rule to the “after death” provision of the wrongful death statute. Praznik and Fure were followed in two latent disease, wrongful death cases in the United States District Court for the Northern District of Illinois, partly because they were Illinois appellate decisions on point and thus were controlling authority for diversity cases, and partly for policy reasons. See Matter of Johns-Manville Asbestosis Cases, 511 F.Supp. 1235 (N.D.Ill.1981) and Eisenmann v. Cantor Brothers, Inc., 567 F.Supp. 1347 (N.D.Ill.1983). A discovery rule was applied in Frederick v. Calbio Pharmaceuticals, 152 Cal.Rptr. 292 , 89 Cal.App.3d 49 (1979), a medical drug, products liability, wrongful death case.

The court reasoned that the applicable period of “within one year from the date of death” was a pure statute of limitations and not a condition on a statutory right because, historically, the provision was but one subsection of the multi-sectioned general statute of limitations. The court also relied on Wohlgemuth v. Meyer, 139 Cal.App.2d 326 , 293 P.2d 816 (1956) which had held that limitations on a medical malpractice, wrongful death action commenced running on discovery of the death’s negligent cause. In Alaska a wrongful death action is to be “commenced within two years after the death.” Hanebuth v. Bell ³⁸ Helicopter International, 694 P.2d 143 (Alaska 1984) allowed a wrongful death suit to proceed which was filed in 1982, shortly after the wreckage from a 1974 helicopter crash had been located in a remote area. The court applied the discovery rule because of “fundamental fairness,” because “it is consistent with the purposes of the act,” and because it avoids “unjust and absurd results.” Id. at 146 .

The court said it was “profoundly unfair to deprive a litigant of his right to bring a lawsuit before he has any reasonable opportunity to do so.” Id. at 147 . “[A] tortfeasor whose conduct has been so grievous as to cause death would be exonerated, while another tortfeasor, guilty of the same conduct except for the fortuity that it merely caused injury, would be held responsible.” Id. The plain language of the Maryland wrongful death statute precludes us from applying to CJ § 3-904(g) the approach of the discovery rule cases reviewed above. 1 We shall, however, review the policy considerations more fully in part II C hereof where they are more appropriately considered. II The survival statute, unlike the wrongful death act, does not create a new cause of action unknown to common law. Rather, it changes the rule at common law under which certain actions by or against decedents abated with death.

CJ § 6-401(a) provides that “[a] cause of action at law, whether real, personal or mixed, except slander, survives ³⁹ the death of either party.” A related provision, Md.Code (1974), § 7-401(x) of the Estates and Trusts Article (ET), provides in relevant part that a personal representative may prosecute, defend, or submit to arbitration actions, claims, or proceedings in any appropriate jurisdiction for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted, except that: (1) A personal representative may not institute an action against a defendant for slander against the decedent during the lifetime of the decedent. The survival action phase of the instant cases involves the construction of the word “accrues” in CJ § 5-101. Appellants, in their capacities as personal representatives, urge that the survival claims did not accrue until Charlotte and Sylvia respectively knew or should have known of the association between their husbands' exposures to asbestos and the diseases suffered by the decedents. Appellants submit that this result is either required by, or is the logical extension of, Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981) and that this result is reached in the better reasoned cases from other jurisdictions.

Appellees deny that Poffenberger controls or preordains the result in survival actions. They undertake to turn the discovery rule analysis against the appellants by contending that, if no cause of action accrues until someone discovers it after the decedent’s death, then the decedent had no cause of action at the time of death, and there is therefore nothing on which the survival statute can operate. Appellees further submit that under the preferable interpretation of limitations statutes which start the clock running for purposes of wrongful death or survival suits when the action accrues, “accrual” occurs no later than at the decedent’s death. A. We must consider first whether Poffenberger established a post mortem as well as an inter vivos discovery rule.

Poffenberger was the culmination of a process which began ⁴⁰ in 1917 when, in Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917), this Court applied a form of discovery rule in a medical malpractice case. Thereafter, accrual under the general limitations statute was determined by a discovery standard in cases involving the negligent design and construction of a stone wall on another’s land; 2 negligent surveying; 3 malpractice by lawyers, 4 accountants, 5 and architects; 6 past, present, and prospective damages caused by a permanent nuisance; 7 negligence or strict liability where the initial injury was a latent disease; 8 and libel. 9 Poffenberger reviewed these cases and concluded: Having already broken the barrier confining the discovery principle to professional malpractice, and sensing no valid reason why that rule’s sweep should not be applied to prevent an injustice in other types of cases, we now hold the discovery rule to be applicable generally in all actions and the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong. [ 290 Md. at 636 , 431 A.2d at 680 .] In the context of the background against which Poffen- berger was written, its holding that “the discovery rule [will] be applicable generally in all actions” represents an abandonment of the case-by-case approach under which this Court would decide whether or not the discovery rule was ⁴¹ to be applied to a given type of action. Poffenberger announced that the general test for accrual would be discovery. Poffenberger did not, however, expressly or by necessary implication address the issue now before us.

None of the cases in the line of decisions applying a discovery rule dealt with an injured person who had died, either due to the injury complained of or from some other cause, without having brought suit based on the injury. Indeed, Poffenberger quoted from Sears, Roebuck & Co. v. Ulman, 287 Md. 397, 401 , 412 A.2d 1240, 1242 (1980) the statement that “ ‘fairness to a plaintiff who has not slept on his rights justifies exceptions to [the] general rule.’ ” The plaintiff referred to had to be a living person because the type of action involved in Ulman , libel, does not survive. See Cant v. Bartlett, 292 Md. 611 , 440 A.2d 388 (1982). The focus of Poffenberger’s concern was with the injured plaintiff who discovered the wrong while living but more than three years after some legal injury had occurred.

B. Nor do we accept appellees’ argument that the personal representative plaintiffs’ claims necessarily fail if a discovery rule is applied. Appellees say that if the personal representatives’ claims do not accrue until they discovered the cause of the latent diseases from which the decedents died, then no cause of action accrued during the lifetime of the decedent, and therefore no rights can pass to the personal representatives under the survival statute. The principal authority in support of this approach is Anthony v. Koppers Co., supra, 496 Pa. 119 , 436 A.2d 181 . Anthony was applied by the Third Circuit in Ciccarelli v. Carey Canadian Mines, Ltd., supra, 757 F.2d 548 , because the federal court was bound by the state court holding, even though the federal court considered the result “admittedly odd.” 757 F.2d at 554 .

See also McDaniel v. Johns-Manville Sales Corp., 511 F.Supp. 1241, 1243-44 (N.D.Ill.1981); Johnson v. Koppers Co., 524 F.Supp. 1182, 1191-92 (N.D.Ohio 1981). ⁴² Appellees’ argument confuses two applications of the concept of accrual in the law. The law is concerned with accrual in the sense of testing whether all of the elements of a cause of action have occurred so that it is complete. There must be both the injuria and the damnum of the common law. See Oxtoby v. McGowan, 294 Md. 83, 94 , 447 A.2d 860, 866 (1982).

But the injured party need not know that he has suffered a legally cognizable injury which has resulted in harm in order to have a complete cause of action. Thus we could say in Harig, supra, 284 Md. at 76 , 394 A.2d at 302 , that “[i]n Maryland, the general rule is that limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time the wrong is discovered.” This was because, prior to Poffenberger , the time of accrual of a cause of action for general limitations purposes and the time when the cause of action was conceptually complete were one and the same. Adoption of a discovery rule for limitations in latent disease cases in Harig , and later for a broader band of cases in Poffenberger , was simply a judicial construction of the word “accrues” in CJ § 5-101. The discovery rule does affect when limitations under § 5-101 will begin to run by adding an additional element, knowledge, to “accrues,” but the discovery rule does not change the time when a cause of action becomes conceptually complete. 10 The discovery rule simply protects from the running of limitations a person who has suffered injuria and damnum giving rise automatically to a cause of action of which that person is blamelessly ignorant.

See Redeker v. Johns-Manville Products Corp., 571 F.Supp. 1160, 1166-68 (W.D.Pa.1983). ⁴³ Consequently, the decedents in the cases before us possessed causes of action which survived their deaths. The question is for how long? Three years, or until discovery by an heir or creditor, plus three years? C. In this part we shall consider principally decisions involving statutory time bars to wrongful death or survival actions which run from the date of accrual.

Such cases are relevant to the survival actions before us, but, as will appear, infra, no general principle may fairly be drawn from the cases. The litigation in Johnson v. Koppers Co., supra, 524 F.Supp. 1182 , included survival actions growing out of respiratory diseases and governed by an Ohio limitations statute requiring suit “within two years after the cause thereof arose.” The court read “cause” to mean the cause of action. Relying on and quoting from Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151, 1158 (6th Cir.1981), the court held that claims based on insidious diseases due to