Weinberg v. Johns-Manville Sales Corp.

DAVIDSON, Judge. This case presents the question whether a New York judgment in favor of a defendant in a New York wrongful death action bars a subsequent wrongful death action in Maryland. More particularly, the question presented is whether a New York judgment, dismissing a New York wrongful death action on the ground that at the time of ²²⁷ death the decedent could not have maintained an action because barred by limitations, 1 bars a subsequent wrongful death action in Maryland. The petitioner, Rose Weinberg (administratrix), is the widow of Albert Weinberg (decedent) and the administratrix of his estate.

From 1941 to 1945, the decedent was employed in Maryland as a shipyard worker. From 1947 to 1948, he was similarly employed in New Jersey. As a shipyard worker, the decedent worked with and was exposed to asbestos and asbestos products manufactured, sold and distributed by the respondents, Johns-Manville Sales Corporation and others (Johns-Manville). 1a In 1948, the decedent and his wife moved to New York where he was not further exposed to asbestos. In June of 1975, the decedent was diagnosed as suffering from pleural malignant mesothelioma — a form of lung cancer allegedly caused by asbestos exposure.

The decedent died on 28 February 1977. Within two years after the decedent’s death, on 2 July 1977, in the Supreme Court of the State of New York, County of New York, the administratrix, insofar as here relevant, filed a wrongful death action, pursuant to New York Estates, Powers & Trusts Law § 5-4.1 (McKinney 1967), 2 now (McKinney 1981 & 1983 Supp.), against Johns ²²⁸ Manville, based upon negligence, intentional harm, strict liability, and breach of warranty. Johns-Manville, pursuant to New York Civil Practice Law §§ 3211 3 and 3212 4 (McKinney 1970), filed a motion for summary judgment dismissing the complaint on the ground that the action could not be maintained because at the time of death the decedent could not have maintained an action because barred by limitations. On 19 October 1979, the New York Supreme Court granted the motion for summary judgment and directed the entry of a final judgment dismissing the complaint.

This judgment was affirmed on appeal by the Supreme Court, Appellate Division and the Court of Appeals of New York. Weinberg v. Johns-Manville Products Corp., 78 A.D.2d 784 , 434 N.Y.S.2d 845 (1st Dept.1980), affirmed, 54 N.Y.2d 1008, 1010 , 430 N.E.2d 1297, 1298 , 446 N.Y.S.2d 244, 245 (1981). The Court of Appeals of New York, in reaching its result, expressly rejected a contention that a cause of action for injuries caused by the inhalation of asbestos particles accrues at the time at which the asbestos-related disease was or could have been discovered. Rather, that Court reiterated that under New York law such a cause of action accrues, and therefore the applicable statutes of limitations begin to run, at the time of the last employment-related exposure to ²²⁹ the invading substance.

That Court held that the wrongful death action was barred because it was instituted more than four years after the decedent’s last employment-related exposure to asbestos particles, the time at which the decedent’s cause of action accrued. 5 Weinberg, 54 N.Y.2d at 1010-11 , 430 N.E.2d at 1298-99 , 446 N.Y.S.2d at 245-46 . Implicit in this holding is the determination that the wrongful death action could not be maintained because the administratrix failed to establish that the decedent had the right to maintain an action at the time of death. On the theory that under Maryland law, a wrongful death action, commenced within three years after the decedent’s death, can be maintained, notwithstanding the decedent’s inability to maintain an action if death had not ensued, because barred by limitations, the administratrix, on 19 July 1979, insofar as here relevant, filed a wrongful death action pursuant to Maryland Code (1974, 1980 Repl.Vol. & 1983 Cum.Supp.) §§ 3-901 through 3-904 of the Courts and Judicial Proceedings Article, 6 in the Superior Court of Baltimore City (now the Circuit Court for Baltimore City). JohnsManville filed “special pleas” and a motion for summary judgment alleging, insofar as here relevant, that under the principles of full faith and credit and res judicata the ²³⁰ Maryland wrongful death action was barred by the New York judgment.

The administratrix filed an answer asserting, insofar as here relevant, that under those principles the New York summary judgment dismissing the New York wrongful death action did not bar the Maryland wrongful death action. On 2 February 1982, in a written memorandum opinion, the trial court initially determined that under principles of res judicata the New York judgment did not bar the Maryland wrongful death action. In reaching this conclusion, the trial court said: “Defendants contend that the dismissal in New York of the wrongful death action is a res judicata determination of the wrongful death action in Maryland. Defendants view the New York ruling as substantive rather than procedural, since the dismissal of the wrongful death action was predicated on the inability of the decedent to maintain an action in his own right if death had not ensued.

However, the decedent was barred from maintaining his own suit solely because of limitations. It is only reasonable to characterize the New York dismissal of the wrongful death action as one also based on limitations, a procedural ground, rather than characterize it as a dismissal on a substantive ground. Therefore, the dismissal of the New York suit is not res judicata to the present suit in Maryland.” (Emphasis added.) In response to other contentions of the parties, the trial court additionally determined that under Maryland choice of law principles, Maryland law was applicable and that under Maryland law, the Maryland wrongful death action would be barred. In reaching this conclusion, the trial court said: “[T]he wrongful death action can be maintained only if the decedent would be entitled ‘to maintain an action and recover damages if death had not ensued.’ The decedent could not have maintained the Maryland suit if he had not died, since the first suit of any type filed in Maryland was ²³¹ more than four years after he discovered his injury.[ 7 ] The wrongful action being predicated on the decedent’s right to maintain the suit had he lived, it must also be dismissed.” (Citations omitted.) Thus, the trial court concluded that under Maryland law a condition precedent to the right to maintain a wrongful death action is that the decedent, if death had not ensued, could have maintained an action at the time of the institution of the wrongful death action.

On 2 February 1982, the trial court granted the motion for summary judgment and entered a final judgment in favor of Johns-Manville. The administratrix filed an appeal to the Court of Special Appeals. While that appeal was pending, the administratrix filed a petition for a writ of certiorari. The sole question presented was whether under Maryland law the Maryland wrongful death action was barred because the decedent, if death had not ensued, could not have maintained an action at the time of the institution of the wrongful death action.

Johns-Manville filed ah answer and a conditional cross-petition in which two questions were presented. The first question was whether under principles of full faith and credit and res judicata the Maryland wrongful death action was barred by the New York judgment. The second question was whether under Maryland choice of law principles New York substantive law was applicable and, if so, whether under New York law the Maryland wrongful death action was barred. We granted the petition and cross-petition before consideration by the Court of Special Appeals.

Be ²³² cause we here hold that under the principles of full faith and credit the Maryland wrongful death action was barred by the New York judgment, we need not consider the remaining questions. Both parties rely upon New York law to resolve the question whether the New York judgment bars the Maryland wrongful death action. The administratrix recognizes that the New York judgment was predicated upon the decedent’s inability to maintain an action if death had not ensued because such an action would have been barred by limitations. Relying upon Sharrow v. Inland Lines Ltd., 214 N.Y. 101 , 108 N.E. 217 (1915) and Carrick v. Central General Hospital, 51 N.Y.2d 242 , 414 N.E.2d 632 , 434 N.Y.S.2d 130 (1980), the administratrix contends that the decedent’s inability to maintain an action because barred by limitations can only be characterized as affecting the remedy and not the substantive cause of action for wrongful death.

Consequently, the administratrix characterizes the New York judgment “as a dismissal based on [New York’s] statutes of limitations ... a procedural ground.” The administratrix acknowledges that under New York law, where a judgment dismissing an action is based upon a statute of limitations, “the judicial decision is on the merits and plaintiff is precluded from thereafter maintaining another action to enforce the claim in the same State....” (Emphasis added.) De Crosta v. A. Reynolds Construction & Supply Corp., 41 N.Y.2d 1100, 1101 , 364 N.E.2d 1129, 1130 , 396 N.Y.S.2d 357, 359 (1977). Accordingly, the administratrix “concedes that principles of res judicata would have barred her from filing another action in a state court of New York.” Nevertheless, the administratrix contends that the New York judgment dismissing the wrongful death action does not bar the Maryland wrongful death action. Relying upon De Crosta , the administratrix asserts that under New York law the applicable full faith and credit principles are those articulated in the Restatement (Second) of Judgments § 19 comment f (1982). The general rule there set forth is that a judgment that bars another action on the same claim in one ²³³ state will bar another action on the same claim in another state.

The Restatement notes, however, that the general rule does not necessarily apply if the action is barred by the statute of limitations of the first state but not of the second. The administratrix points out that, although in the instant case the New York wrongful death action was barred by the New York statutes of limitations applicable to the decedent’s right to maintain an action, the Maryland wrongful death action is not barred by the applicable Maryland statute of limitations that requires that a wrongful death action shall be filed within three years after the death of the injured person. The administratrix concludes that under these circumstances the New York judgment dismissing the New York wrongful death action does not bar the Maryland wrongful death action. Johns-Manville asserts that the New York judgment cannot be characterized as a dismissal based upon the New York statute of limitations, a procedural ground.

It agrees with the administratrix that the New York judgment was predicated upon the decedent’s inability, if death had not ensued, to maintain an action because barred by limitations. Johns-Manville asserts that under the New York wrongful death statute the decedent’s ability to maintain an action if death had not ensued is an essential element of the administratrix’s cause of action for wrongful death. Accordingly, it characterizes the New York judgment as a dismissal based upon the administratrix’s failure to satisfy a statutory condition precedent to the right to maintain the action, a substantive ground. Johns-Manville therefore concludes that the New York judgment dismissing the New York wrongful death action bars not only a subsequent New York wrongful death action, but also a Maryland wrongful death action.

Article IV, § 1 of the United States Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws ²³⁴ prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” 28 U.S.C. § 1738 (1982) provides in pertinent part: “Such ... judicial proceedings ... so authenticated, shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State . .. from which they are taken.” The purpose of the Full Faith and Credit Clause is to require a state court to recognize judgments of courts of other states. Rentals Unlimited, Inc. v. Administrator, Motor Vehicle Administration, 286 Md. 104, 111 , 405 A.2d 744, 749 (1979); Ross v. Pick, 199 Md. 341, 347 , 86 A.2d 463, 466 (1952). Under the principles of full faith and credit, a state court is generally required to give judgments rendered in other states the same effect that they have in the rendering state.

Small v. Ciao Stables, Inc., 289 Md. 554, 560-61 , 425 A.2d 1030, 1033-34 (1981); Madden v. Cosden, 271 Md. 118 , 124 n. 4, 314 A.2d 128 , 132 n. 4 (1974); Bank of United States v. Merchants Bank of Baltimore, 7 Gill 415, 436-38 (1848); Wernwag v. Pawling, 5 G. & J. 500, 507 (1833); see Restatement (Second) of Judgments § 18 comment d (1982). Indeed, as long ago as 1833, in Wernwag v. Pawling, 5 G. & J. 500, 507 (1833), this Court said: “The object of [the Full Faith and Credit Clause] was to give to such judgments, full faith and credit; that is, to attribute to them, positive and absolute verity, so that they cannot be contradicted, or the truth of them be denied, any more than in the State where they originated. If a judgment is conclusive in the State where rendered, it is equally conclusive every where. If re-examinable there, it is likewise re-examinable here.

It is therefore put upon the same footing as a domestic judgment. [T]he only inquiry, where the suit is upon the judgment of another State, is, what is the effect of the judgment in the State where rendered.” (Citations omitted) (emphasis added). ²³⁵ Thus, whether in this wrongful death action the New York judgment dismissing the New York wrongful death action is accorded conclusive effect and bars the Maryland wrongful death action depends upon an application of New York law. The New York wrongful death statute, N.Y.Est.Powers & Trusts Law § 5-4.1, provides in pertinent part: “The personal representative . . . may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.” (Emphasis added.) The Court of Appeals of New York has recognized that generally the statutory requirements of a cause of action for wrongful death are statutory conditions precedent to the maintenance of such an action and, as such, are essential elements of that cause of action. Carrick, 51 N.Y.2d at 250 , 414 N.E.2d at 636 , 434 N.Y.S.2d at 134 ; George v. Mt. Sinai Hospital, 47 N.Y.2d 170, 176-77 , 390 N.E.2d 1156, 1159-60 , 417 N.Y.S.2d 231, 235 (1979); Boffe v. Consolidated Telegraph & Electrical Subway Co., 171 A.D. 392, 394 , 157 N.Y.S. 318, 320 (1st Dept.1916), affirmed, 226 N.Y. 645 , 123 N.E. 856 (1919); Kelliher v. New York Cent. & H.R.R. Co., 212 N.Y. 207, 211-12 , 105 N.E. 824, 825 (1914).

Manifestly, such statutory requirements are a part of the substantive cause of action for wrongful death. Moreover, the Court of Appeals of New York has repeatedly recognized that a decedent’s right to maintain an action at the time of death is one of the statutory conditions precedent to a right to maintain a New York wrongful death action and, as such, is one of the essential elements of a wrongful death action. Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 315-16 , 398 N.E.2d 517, 521 , 422 N.Y.S.2d 911, 915 (1979) (not maintainable where decedent’s death caused by suicide); Frick v. Horton, 21 A.D.2d 212, 213 , 250 N.Y. S.2d 83, 84 (3rd Dept.1964), affirmed, 15 N.Y.2d 1018 , 260 N.Y.S.2d 26 , 207 N.E.2d 618 (1965) (not maintainable where decedent’s suit against co-employee barred by workmen’s ²³⁶ compensation law); Emery v. Rochester Telephone Corp., 271 N.Y. 306, 309 , 3 N.E.2d 434, 436 (1936) (not maintainable where no direct interference with decedent’s person); Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 535-36 , 125 N.E. 675, 677 (1920) (not maintainable when decedent’s suit barred by release); Hodge v. Rurland R. Co., 112 A.D. 142, 143-44 , 97 N.Y.S. 1107, 1108 (3rd Dept.1906), affirmed, 194 N.Y. 570 , 88 N.E. 1121 (1909) (not maintainable when decedent’s suit barred by release). More particularly, the Court of Appeals of New York has held that this statutory condition precedent is not satisfied when the decedent at the time of death could not have maintained an action because barred by limitations.

Kelliher, 212 N.Y. at 211 , 105 N.E. at 825 ; Johnson v. Stromberg-Carlson Telephone Manufacturing Co., 250 A.D. 352, 353 , 294 N.Y.S. 173, 175 (4th Dept. 1937), affirmed, 276 N.Y. 621 , 12 N.E.2d 607 , cert. denied, 305 U.S. 645 , 59 S.Ct. 150 , 83 L.Ed. 416 (1938); see Myers v. City of Plattsburg, 13 A.D.2d 866, 866 , 214 N.Y.S.2d 773, 774 (3rd Dept.1961). Illustrative is the case of Kelliher v. New York Cent. & H.R.R. Co., 212 N.Y. 207 , 105 N.E. 824 (1914). There a decedent was injured in 1906 and, as a result of the injuries, died in 1912. The decedent did not bring any action to recover for the injuries.

Several months after the decedent’s death, the administratrix brought a wrongful death action. The question presented was whether the wrongful death action was barred by the New York three-year statute of limitations applicable to the decedent’s right to maintain a tort action. There the Court of Appeals of New York said: “It is to be noted, however, that the right of action provided for in section 1902 is qualified by the condition that the representative action may be brought only where a natural person who, or the corporation which, ‘would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.’ We think the framers of the section considered that no action should be ²³⁷ maintainable under it unless the decedent, at the time of his death, could have maintained an action. “In the case at bar the decedent allowed the three years to expire within which he was permitted to commence an action. His subsequent death could not revive the cause of action based upon his injuries in favor of his representative.

By the express language of the statute the wrongdoer is liable to the representative only in a case where he would have been liable to the decedent had death not ensued. In construing the meaning of this language in the Littlewood [v. Mayor, 89 N.Y. 24 ] Case, Judge Rapallo said: ‘It seems to me very evident that the only defense of which the wrongdoer was intended to be deprived was that afforded him by the death of the party injured, and that it is, to say the least, assumed throughout the act that at the time of such death the defendant was liable.’ 89 N.Y. [24] 28, 42 Am.Rep. 271 . “In a case involving a similar statute the United States Supreme Court said: ‘As the