Washington Suburban Sanitary Commission v. Riverdale Heights Volunteer Fire Co.

RODOWSKY, Judge. Maryland Code (1974, 1984 Repl.Vol.), § 5-309.1(a) of the Courts and Judicial Proceedings Article (the Act) provides: Notwithstanding any other provision of law, except for any willful or grossly negligent act, a fire company or rescue company, and the personnel of a fire company or rescue company, are immune from civil liability for any act or omission in the course of performing their duties. ⁵⁵⁸ The Act is part of Ch. 546 of the Acts of 1983, effective July 1, 1983. 1 In this appeal we shall hold that the Act does not confer immunity for allegedly tortious conduct occurring prior to the Act’s effective date. On January 25,1980, fire damaged an apartment house in Riverdale. The fire insurer paid $462,668.79 in settlement of the loss and then sued Washington Suburban Sanitary Commission (WSSC) alleging that WSSC had caused a substantial delay in fighting the fire and that the delay had increased the loss.

Firefighters had initially attempted to obtain water from the fire hydrant closest to the fire, but that hydrant was dry, so the firefighters had to go some unspecified distance to obtain water from a working hydrant. The insurer alleged that WSSC had the duty to maintain the fire hydrants and that prior to January 25, 1980, it had been put on notice of the defective fire hydrant. On September 10, 1984, approximately fourteen months after the Act went into effect, WSSC filed a third-party complaint, later amended, against Riverdale Heights Volunteer Fire Co., Inc. (Fire Co.), which had responded to the fire. WSSC alleged that Fire Co. initially attached its hoses to a hydrant which Fire Co. knew was inoperable and that this negligence was active and primary while any negligence on the part of WSSC was passive and secondary. ⁵⁵⁹ Alternatively, WSSC averred concurrent negligence.

WSSC demanded judgment against Fire Co. for indemnity or contribution. Fire Co. moved to dismiss on the ground that it had been immunized by the Act from liability for simple negligence. The trial court granted this motion, reasoning that the Act applied to WSSC’s claims for contribution or indemnity which had not accrued by July 1, 1983, because WSSC had not made any payment to the insurer. Although given an opportunity to amend the third-party complaint if it could allege that Fire Co.’s conduct was willful or grossly negligent, WSSC declined to do so and suffered judgment against it on the third-party claim.

WSSC’s attempt to appeal before any final judgment had been entered under Maryland Rule 2-602 was dismissed. Thereafter, on January 10, 1986, WSSC settled with the insurer and a judgment by consent in the amount of $140,-000 was entered in favor of the insurer against WSSC. WSSC timely filed an order for appeal “from the judgment entered on January 10, 1986.” We issued the writ of certiorari on our own motion prior to consideration of this case by the Court of Special Appeals. In essence, WSSC contends that the circuit court erroneously gave a retrospective application to the Act.

Fire Co. has moved to dismiss the appeal and, on the merits, submits that the Act was properly applied to causes of action which had not accrued when the Act took effect. I According to Fire Co., WSSC precluded appellate review of the April 1985 dismissal of the third-party complaint by saying in the order for appeal that it was “from the judgment entered on January 10, 1986.” This form of order, says Fire Co., limited the appeal to that judgment by consent. Because no appeal lies from a consent judgment, Fire Co. submits that this appeal must be dismissed. ⁵⁶⁰ It is true “that a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.” Franzen v. Dubinok, 290 Md. 65, 69 , 427 A.2d 1002, 1004 (1981). But, this order for appeal does not confine our review to the consent judgment.

Appellate jurisdiction requires a final judgment or an appealable interlocutory judgment, but the Maryland Rules do not require that the judgment complained of be identified in the order for appeal. Here WSSC pointed in its order for appeal to the fact that a final judgment had been entered on January 10, 1986, when the last unresolved claim in the action had been terminated by a consent judgment. The earlier interlocutory dismissal of the third-party claim, of which WSSC is aggrieved, then became reviewable on appeal, even if the consent judgment on the original complaint is not reviewable. Fire Co.’s motion to dismiss the appeal is denied.

II In the case before us the Act in terms grants fire and rescue companies and their personnel immunity from liability for certain negligent conduct which is not willful or grossly negligent. The Act effects more than a mere change of practice, procedure, or remedy. It establishes a rule of substantive law. Under a purely prospective application of the Act, the victim of certain tortious conduct by a fire company, which might have been liable for the same conduct had the Act never been enacted, has no effective tort action for that conduct if it occurs on or after July 1, 1983.

Under a retrospective application of the Act conduct prior to July 1, 1983, which was tortious and not immune when it occurred, would be immunized from liability. As a general rule, statutes are presumed to operate prospectively and are to be construed accordingly. See, e.g., Rigger v. Baltimore County, 269 Md. 306 , 305 A.2d 128 (1973); Kastendike v. Baltimore Association for Re ⁵⁶¹ tarded Children, Inc., 267 Md. 889 , 297 A.2d 745 (1972); State Farm Mutual Automobile Insurance Co. v. Hearn, 242 Md. 575 , 219 A.2d 820 (1966); but cf. Spielman v. State, 298 Md. 602 , 471 A.2d 780 (1984) (there is no absolute bar to retrospective application). The presumption against retrospectivity is rebutted only where there are clear expressions in the statute to the contrary.

State Farm Mutual Automobile Insurance Co. v. Hearn, supra. Moreover, even where permissible, retrospective application is not found except upon the plainest mandate in the legislation. Bell v. State, 236 Md. 356 , 204 A.2d 54 (1964). The rationale underlying the general rule provides that retrospective application, which attempts to determine the legal significance of acts that occurred prior to the statute’s effective date, increases the potential for interference with persons’ substantive rights.

State Commission on Human Relations v. Amecom Division of Litton Systems, 278 Md. 120 , 360 A.2d 1 (1976). For example, State Farm Mutual Automobile Insurance Co. v. Hearn, supra, involved a statute which required an automobile liability insurer to demonstrate that it had been prejudiced by lack of notice of an accident in order to disclaim coverage for failure of the insured to give notice as required by the policy. This statute changed prior case law which did not require prejudice. We held that the statute, which provided simply that it would become effective on June 1 of 1964, did not apply to a policy in effect when an accident occurred on March 3, 1964.

There ( 242 Md. at 582 , 219 A.2d at 824 ) we said that “[t]he general presumption is that all statutes, State and federal, are intended to operate prospectively and the presumption is found to have been rebutted only if there are clear expressions in the statute to the contrary. Retroact[ivity], even where permissible, is not favored and is not found, except upon the plainest mandate in the act.” Bell v. State, 236 Md. 356, 369 , 204 A.2d 54 (1964). See also cases cited in 20 M.L.E. Statutes § 164 (1962). This rule of construction is particularly applicable where ⁵⁶² the statute adversely affects substantive rights, rather than only altering procedural machinery.

Beechwood Coal Co. v. Lucas, 215 Md. 248, 253-54 , 137 A.2d 680 (1958) and cases therein cited. See also Janda v. General Motors Corp., 237 Md. 161, 169-71 , 205 A.2d 228 (1964). Fire Co. necessarily seeks a retrospective application of the Act because this case concerns the legal consequences of alleged conduct on the part of Fire Co. occurring on January 25, 1980. It urges that, absent constitutional prohibition or contrary legislative intent, a newly enacted statute is applied to decide substantive issues in cases pending when the statute becomes effective.

To support this proposition Fire Co. rests heavily on Janda v. General Motors Corp., 237 Md. 161 , 205 A.2d 228 (1964). Unlike the instant case, Janda involved a statute the terms of which clearly reflected a retroactive intent. Although the statute was enacted effective June 1, 1963, it laid down a rule of eligibility for unemployment compensation which applied to employees under collective bargaining agreements in effect on December 6, 1962. The statute had the obvious purpose of changing, in part, a statutory disqualification which, following approval on a referendum, had become effective December 6, 1962.

Although the holding of Janda is of no help to Fire Co., there is dicta in that opinion which supports its position. Janda undertook to state “[v]arious rules [that] have been formulated by the courts to aid in determining whether a statute is to be applied retrospectively or prospectively.” 237 Md. at 168 , 205 A.2d at 232 . The opinion then set forth four rules, the fourth of which is relied on by Fire Co.: “(4) A statute which affects or controls a matter still in litigation when it became law will be applied by the court reviewing the case at the time the statute takes effect although it was not yet law when the decision appealed from was rendered, even if matters or claims of substance (not constitutionally protected), as distinguished from matters procedural or those affecting the remedy ⁵⁶³ are involved, unless the Legislature intended the contrary.” [Id. at 169, 205 A.2d at 233 . 2 ] Janda’s, collection of rules was not intended to restate the universe of then Maryland law on prospective or retrospective application of statutes. Further, Janda recognized that the various categories of matters utilized in stating those rules tend to overlap and are not easily applied. 237 Md. at 170 , 205 A.2d at 233 .

The fourth rule in Janda nevertheless can be read to say in effect that, as to matters in litigation on the effective date of a statute, the statute ordinarily is to be applied, unless the General Assembly intended the contrary. This Court has never applied the fourth rule in Janda to decide a case. This Court has cited Janda for a number of propositions, including: (1) statutes are presumed to operate prospectively, unless a contrary intent appears, see Slate v. Zitomer, 275 Md. 534, 540-41 , 341 A.2d 789, 793 (1975), cert. denied sub nom. Gasperich v. Church, 423 U.S. 1076 , 96 S.Ct. 862 , 47 L.Ed.2d 87 (1976), Blocher v. Harlow, 268 Md. 571, 579-80 , 303 A.2d 395, 399 (1973), Unsatisfied Claim & Judgment Fund Board v. Bowman, 249 Md. 705, 708 , 241 A.2d 714, 716 (1968) (especially where substantive rights are involved), and Dixon v. Checchia, ⁵⁶⁴ 249 Md. 20, 23 , 238 A.2d 247, 249 (1968); (2) a statute governing procedure or remedy will be applied to cases pending when the statute becomes effective, see Starfish Condominium Association v. Yorkridge Service Corp., 295 Md. 693, 705 , 458 A.2d 805, 811 (1983), Mraz v. County Commissioners, 291 Md. 81, 90 , 433 A.2d 771, 776-77 (1981), Winston v. Winston, 290 Md. 641, 650 , 431 A.2d 1330, 1334 (1981), Aviles v. Eshelman Electric Corp., 281 Md. 529, 533 , 379 A.2d 1227, 1229 (1977), Holmes v. Criminal Injuries Compensation Board, 278 Md. 60 , 63 n. 2, 359 A.2d 84 , 86 n. 2 (1976), and Luxmanor Citizens Association v. Burkart, 266 Md. 631, 645 , 296 A.2d 403, 410 (1972); (3) a statute will be given a retrospective effect if that is the legislative intent, see Attorney Grievance Commission v. Klauber, 284 Md. 306, 308 , 396 A.2d 253, 254 (1979), State Commission on Human Relations v. Amecom Division of Litton Systems, supra, 278 Md. 120, 123 , 360 A.2d 1, 4 , and Layton v. Petrick, 277 Md. 421, 430 , 355 A.2d 466, 471 (1976); and (4) a statute, even if intended to apply retrospectively, will not be given that effect if it would take vested rights, deny due process, or violate the prohibition against ex post facto laws, see Vytar Associates v. Mayor & Aldermen of Annapolis, 301 Md. 558 , 572 n. 6, 483 A.2d 1263 , 1270 n. 6 (1984), Spielman v. State, supra, 298 Md. 602, 607 , 471 A.2d 730, 733 , and Cooper v. Wicomico County, 278 Md. 596, 600 , 366 A.2d 55, 58 (1976).

In Board of Public Works v. Larmar Corp., 262 Md. 24, 58 , 277 A.2d 427, 443 (1971), we quoted the fourth rule from Janda to support a prospective application of a statute. On August 1, 1968, the Board of Public Works had adopted a policy of charging fees to persons taking borrow material from the bottom of navigable waterways. A statute effective July 1, 1970, established a licensing system for dredging in wetlands and authorized the Board, inter alia, to issue licenses and to set fees. In a declaratory judgment action a circuit court had decided that the appellee, a riparian owner, need pay no compensation to the State for material which the appellee proposed to dredge from wet ⁵⁶⁵ lands.

We reversed and held that the riparian owner was obligated to pay the license fee. We declined, however, to opine on whether the 1970 statute retrospectively authorized the policy adopted in 1968 by the Board. It was sufficient to declare the rights of the parties in their future relationships under the 1970 statute. State v. Johnson, 285 Md. 339, 343 , 402 A.2d 876, 878 (1979), referring to the proposition set forth as the fourth rule in Janda , described it as an exception to the principle that a retroactive operation of a statute is disfavored.

The discussion involving Janda’s fourth rule is dictum in Johnson . The latter case, for reasons which are not pertinent here, declined to apply to an order entered at a probation revocation hearing a statute enacted while the appeal from that order was pending. Because it is inconsistent with the general body of Maryland law on the subject, the fourth rule in Janda is disapproved. Fire Co. emphasized, particularly at oral argument, that we should approach questions of prospective or retrospective application of statutes by using the analytical model articulated in Bradley v. School Board of Richmond, 416 U.S. 696 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974), under which retrospective operation is presumed.

The Court of Special Appeals has viewed the Bradley model as consistent with Janda and applied that analysis in Maryland Insurance