Waddell v. Kirkpatrick

ROBERT M. BELL, Judge. We granted certiorari to answer the question whether Maryland Code (1989 Repl-Vol.) section 5-201 1 of the Courts & ⁵⁴ Judicial Proceedings Article 2 applies to save an action brought, pursuant to the Maryland wrongful death statute, sections 3-901 through 904, on behalf of the child of the injured person, one of the primary statutory beneficiaries, when, at the time of the injured person’s death, that child was a minor 327 Md. 129 , 607 A.2d 947 . The Circuit Court for Prince George’s County answered, “no.” We shall do likewise. I. Appellant Lorraine Marie (Payne) Waddell’s father, John Payne, was killed on June 26, 1975, when the car he was driving collided with a tractor trailer driven by Willie Kirkpatrick in the scope of his employment with Lowenstein Company.

The tractor trailer had been leased from Commercial Equipment Company, Inc. When her father was killed, the appellant was three years and four months old. Although a claim, which resulted in a substantial settlement, was brought by her mother, when the appellant reached the age of twenty, she filed a $2 million suit naming Kirkpatrick, Lowenstein Company, and Commercial Equipment Company, Inc., as defendants (collectively “the appellees”). That suit alleged that Kirkpatrick negligently caused her father’s death and that the other defendants were jointly and severally liable. The appellees moved to dismiss the action, arguing that, because it was brought more than three years after the death of the appellant’s father, it was barred.

The Circuit Court for Prince George’s County granted the motion and Waddell appealed the judgment to the Court of Special Appeals. We granted certiorari prior to argument or decision by the intermediate appellate court. ⁵⁵ II. A. Section 5-101 codifies the general statute of limitations in Maryland. It requires that a civil action at law be filed within three years of its accrual “unless another provision of the Code provides a different period of time within which an action shall be commenced.” Section 5-201 (a) is such a provision.

Pursuant to that section, when a person with a cause of action subject to the limitations period prescribed by section 5-101 is a minor, a “different period of time within which an action shall be commenced”, ie., “the lesser of three years or the applicable period of limitations after the date the disability is removed,” applies. Section 3-904(g) 3 is another provision of the Code which prescribes a time within which an action must be brought. It provides: (g) Action to commence within three years; deaths caused by occupational disease.—(1) Except as provided in paragraph (2) of this subsection, an action of this subtitle shall be filed within three years after the death of the injured person. (2)(i) In this paragraph “occupational disease” means a disease caused by exposure to any toxic substance in the person’s workplace and contracted by a person in the course of the person’s employment.

(ii) If an occupational disease was a cause of a person’s death, an action shall be filed: 1. Within 10 years of the time of death; or 2. Within 3 years of the date when the cause of death was discovered, whichever is the shorter. Before 1971, a wrongful death action had to be brought within two years of the death of the injured party.

See Md.Code ⁵⁶ (1957, 1970 Repl.Vol.) Art. 67, § 4(a). 4 By enacting Chapter 784, 1971 Maryland Laws, the Legislature expanded the time for filing the action to three years. It stated its purpose for doing so as follows: WHEREAS, the General Assembly desires to bring the statute of limitations for wrongful death actions in uniformity with that of other negligence actions. WHEREAS, there is no logical reason for the variance between the time limits for commencement of actions. WHEREAS, citizens may be misled to their detriment by the variance between the respective statutes of limitations resulting in an undue forfeiture of rights.

B. Noting that the time for bringing a wrongful death action is the same as that set forth in section 5-101 and stressing that the Legislature characterized that period as a statute of limitations when it amended the wrongful death statute, the appellant , argues that subsection (g) “imposes a limitation of three years exactly as referenced in section 5-101.” Therefore, she continues, it does not prescribe a “different period of time within which an action shall be commenced” and thus, falls within section 5-101. Since section 5-201(a) extends the ordinary period of limitations for a cause of action when the person with the cause of action is under a disability, and it refers directly to section 5-101 limitations and section 3-904(g) prescribes “a limitation” within the coverage of section 5-101 of subtitle 1, the argument continues, section 5-201(a) is also applicable to section 3-904(g). ⁵⁷ The appellees’ response to the appellant’s arguments is twofold. First, they maintain that section 3-904(g) does not establish a statute of limitations at all; rather, it prescribes a time period as a condition precedent to maintaining a wrongful death action. That being the case, they assert, the time limit in subsection (g) does not, and could not, fall within section 5-101.

And because section 5-201(a) refers only to limitations set forth in subtitle 1 of title 5, it could have no effect on section 3-904(g). Furthermore, the appellees argue, the statement of the purpose of amending section 3-904(g) is an insufficient indication of the General Assembly’s intent to change the nature of the time limitation in subsection (g). They reason that the General Assembly is presumed to be aware of the decisions of this Court construing the nature and effect of the time period prescribed by the wrongful death statute. Moreover, and in any event, the appellees assert that the legislative history of the wrongful death statute and, indeed, the essential nature of a wrongful death cause of action, as it has evolved in Maryland, is a clear refutation that the Legislature intended, by expanding the time period for bringing such an action, that section 5-201(a) apply to permit one under a disability to commence his or her action following the termination of the disability, whether or not another action had already been brought and resolved.

We agree and explain.

III

As the appellant correctly concedes, the time period prescribed in section 3-904(g) has been construed by this Court to be a condition precedent to maintaining the action, rather than a statute of limitation. Lopez v. Md. State Hwy. Admin., 327 Md. 486, 490 , 610 A.2d 778, 780 (1992); Trimper v. Porter-Hayden, 305 Md. 31, 35 , 501 A.2d 446, 449 (1985); Morrell v. Williams, 279 Md. 497, 505-06 , 366 A.2d 1040, 1044 (1976); 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); Smith v. Westinghouse Elec., 266 Md. 52, 55-56 , 291 A.2d 452, 454 (1972); State, Use of Dunnigan v. Cobourn, 171 ⁵⁸ Md. 23, 25-26, 187 A. 881, 883 (1936); State v. Parks, 148 Md. 477, 479-82 , 129 A. 793, 794 (1925). See Knauer v. Johns-Manville Corp., 638 F.Supp. 1369, 1375-76 (D.Md.1986).

See also Cotham & Maldonado v. Bd., 260 Md. 556, 563 , 273 A.2d 115, 119 (1971); London Etc. Co. v. S.S. Co., 161 Md. 145, 157 , 155 A. 334, 338 (1931). In Parks , the issue was whether the requirement in the wrongful death statute then in effect, Maryland Code (1912) Art. 67 § 2, requiring “that every such action shall be commenced within twelve calendar months after the death of the deceased person”, is “a condition essential to the right to maintain the action given by the statute, or is merely a limitation of the remedy which must be pleaded to defeat the action.” Parks, 148 Md. at 477-78 , 129 A. at 793 . In that case, the defendant failed to specifically plead limitations, filing instead a general issue plea.

The trial court granted the defendant’s motion to withdraw the general issue plea and file a demurrer. In the demurrer, the defendant urged the dismissal of the suit because it had not been filed within one year of the decedent’s death. Our predecessors affirmed the sustaining of the demurrer. The Court noted initially that upon its enactment, the wrongful death statute created a new cause of action in the State.

Id. at 479 , 129 A. at 793 . It then observed that, in Maryland, when a statute created a new cause of action, “it would seem to be obvious that if a plaintiff sets out facts which place the claim beyond the terms of the statute, his declaration will be bad on demurrer.” Id. at 480 , 129 A. at 794 . Quoting The Harrisburg, 119 U.S. 199, 214 , 7 S.Ct. 140, 147 , 30 L.Ed. 358, 362 (1886), 5 the Court stated the ⁵⁹ rule regarding the effect of a time requirement prescribed in a statute creating the new cause of action: The [statute] create[s] a new legal liability, with the right to suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone.

It is a condition attached to the right to sue at all---- Time has been made of the essence of the right and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right. Id. at 480, 129 A. at 794 . In contrast, a statute of limitations affects only the remedy, not the cause of action, Goldberg & Kane v. Howard County Welfare Bd., 260 Md. 351, 354 , 272 A.2d 397 -98 (1971); Shipley v. Meadowbrook Club, Inc., 211 Md. 142, 152 , 126 A.2d 288, 293 (1956); Frank v. Wareheim, 179 Md. 59, 65 , 16 A.2d 851, 853 (1940).

The failure of a defendant to raise the bar of limitations, timely, see Maryland Rule 2-323(g)(16), 6 results in the waiver of limitations, which permits the plaintiff to proceed with the trial of his or her case. Foos v. Steinberg, 247 Md. 35, 38 , 230 A.2d 79, 80 (1967); Foard v. Snider, 205 Md. 435, 451 , 109 A.2d 101, 108 (1954); Brooks v. State, 85 Md. App. 355, 363-65 , 584 A.2d 82, 86-87 (1991). ⁶⁰ Once it has been established that section 3-904(g) is a condition precedent, as opposed to a statute of limitations, it follows inexorably that it does not fit within the prescription of section 5-101. Consequently, section 5-201 does not save a cause of action for wrongful death notwithstanding the disability of the plaintiff at the time the action accrued.

IV

A. The appellant argues, nonetheless, that when the Legislature amended section 3-904(g) to extend the time period from two years to three years, it intended, as the preamble to Chapter 784 reveals, to convert what had formerly been a condition precedent into a statute of limitations and to make it conform to statute of limitations prescribed by section 5-101. We do not agree. The Legislature is presumed to be aware of the interpretation that this Court has placed upon its enactments. State v. Bricker, 321 Md. 86, 93 , 581 A.2d 9, 12 (1990); Farmers & Merchants Bank v. Schlossberg; 306 Md. 48, 60 , 507 A.2d 172, 178 (1986).

As we have seen, prior to 1971, the Court interpreted section 3-904(g) as a condition precedent and explained the effect of that status. State, Use of Cavanaugh v. Arundel Park Corp., 218 Md. 484, 487 , 147 A.2d 427, 428 (1959); Parks, 148 Md. at 480-82 , 129 A. at 794 ; Cobourn, 171 Md. at 25-26 , 187 A. at 884 (construing this predecessor of section 3-902, which permitted the personal representative of an alleged wrongdoer to be sued for wrongful death if brought within six months of the alleged wrongdoer’s death); London Guar. & Accident Co. v. Balgowan S.S. Co., Ltd., 161 Md. 145, 157 , 155 A. 334, 338 (1931). In those cases, we made clear “that where a limitation period is stipulated in a statute creating a cause of action, it is not to be considered as an ordinary statute of limitations, but is to be considered as a limitation upon the right as well as the remedy.” Slate, 275 Md. at 542-43 , 341 A.2d at 794 , quoting Blocher v. Harlow, 268 Md. 571, 581 , 303 A.2d 395, 400 (1973), overruled on other ⁶¹ grounds, Eastgate Assoc. v. Apper, 276 Md. 698, 703 , 350 A.2d 661, 665 (1976). In the same time frame, we reached the same result in cases involving similar, but different, statutes.

See Mullins v. Thorne, 254 Md. 434, 440 , 255 A.2d 409, 413 (1969); McBride v. Gulbro, 247 Md. 727, 729 , 234 A.2d 586, 588-89 (1967); Redfern v. Holtite Mfg. Co., 209 Md. 106, 111 , 120 A.2d 370, 372 (1956); Pendergast v. Young, 188 Md. 411, 418 , 53 A.2d 11, 14 (1947); Frank v. Wareheim, 177 Md. 43, 50 , 7 A.2d 186 (1939). Notwithstanding its knowledge of our interpretation of such statutes, the Legislature did no more in 1971 than increase the time for bringing a wrongful death action from two years to three years. Although it referred to that time period as a statute of limitations in the process, that does not suffice to effect so considerable a change to render what had once been a condition precedent a statute of limitations.

Had the Legislature intended such a radical change, it easily could have done so; it certainly knew how to do it. Prior to 1986, subsection (g) provided only one time period in which to bring a wrongful death action. In that