MOREEN ELIZABETH GILROY, ET AL.
SVF RIVA ANNAPOLIS LLC, ET AL.
Court for Anne Arundel County Case No. C-02-CV-15-001605
Zarnoch, Robert A., (Senior Judge, Specially Assigned), JJ.
McLaughlin died on January 25, 2012, as a result of injuries
received as he was trying to repair an HVAC unit on the roof
of an Annapolis restaurant. Appellants, Moreen Elizabeth
Gilroy and Mr. McLaughlin's other survivors, filed a
wrongful death action asserting claims of negligence and
premises liability against SVF Riva Annapolis, LLC, the owner
of the shopping center in which the restaurant was located;
Rappaport Management Corporation, the center's property
management company; and CEC Entertainment, Inc., the tenant
and the operator of the restaurant.
Riva and Rappaport filed motions for summary judgment. CEC
filed a motion for summary judgment or to dismiss. They
raised several theories as to why judgment should be granted
on their behalf, but the Circuit Court for Anne Arundel
County entered judgment for appellees on the ground that one
of Maryland's statutes of repose, specifically, Md. Code
Ann., § 5-108(a) of the Courts and Judicial Proceedings
Article ("CJP"), barred appellants' claims.
assert that the circuit court misinterpreted the statute. We
believe that they are correct and will reverse the judgment
and remand this case for further proceedings, which should
include consideration of the other grounds raised by the
appellees in their motions.
juncture, the parties do not contest the facts. On the night
of January 13, 2012, Mr. McLaughlin made a service call to
repair the HVAC unit on the roof of the Chuck E Cheese
restaurant at the Festival at Riva Shopping Center in
Annapolis. He placed a ladder against an exterior wall and
climbed up to access the malfunctioning heating unit.
However, the wall at the location selected by Mr. McLaughlin
was open to the ground below. When Mr. McLaughlin attempted
to step from the ladder onto what he must have thought was
the roof, he fell more than 20 feet to a concrete pad. He was
badly injured and passed away 12 days later.
initially filed suit against the appellees in the United
States District Court for the District of Maryland on January
27, 2014. On April 24, 2015, the District Court dismissed the
action without prejudice for lack of subject matter
then filed the present action in the Circuit Court for Anne
Arundel County on May 12, 2015. SVF Riva answered the
complaint and filed cross claims seeking indemnification and
contribution against the other two parties. Rappaport did the
same. Both SVF Riva and Rappaport then filed separate motions
for summary judgment on the basis that CJP § 5-108
barred the suit. CEC filed a motion to dismiss, which also
included the statute of repose argument. Additionally, CEC
asserted that the wrongful death action was untimely under
Maryland's wrongful death statute and that McLaughlin was
hearing on the motions for summary judgment, the court and
the parties focused on the scope of the exceptions to the
statute of repose that are set out in CJP § 5-108(d).
Appellants argued that § 5-108(d)(2)(i), which provides
an exception to the operation of the statute for defendants
who were "in actual possession and control of the
property as owner, tenant, or otherwise when the injury
occurred, " applied to appellees. Appellees disagreed,
arguing that the owner, tenant, or party in possession
exception had to be read in context with the rest of the
exceptions listed in subsection (d), which pertain to
asbestos-related claims. They asserted that this meant that
the exception for actions against owners, tenants, or those
in possession of the property was limited to asbestos-related
claims and did not apply to the present action.
trial court agreed with appellees' interpretation of the
statute. The court noted that it perceived no clear answers
in the case law but it found guidance from language in
Hagerstown Elderly Assocs. Ltd. Partnership v. Hagerstown
Elderly Bldg. Assocs. Ltd. Partnership, 368 Md. 351, 359
n. 3 (2002), which indicates that the subsection (d)
exceptions apply only to asbestos-related claims. (We will
discuss Hagerstown later in this opinion.) The trial
court concluded 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 legislature was clearly trying to carve out
. . . 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.
circuit court did not address the other grounds presented by
appellees. This timely appeal followed.
Standard of Review
review of an order granting summary judgment is a two-step
process. The first is to decide whether there were disputes
of material fact before the circuit court. Koste v. Town
of Oxford, 431 Md. 14, 24-25 (2013). If, as is true in
this case at this juncture, there were no such disputes, then
we decide whether the circuit court's legal reasoning was
correct. We perform this review de novo. Id. at 25.
Whether the circuit court's interpretation of a statute
is correct is a question of law that we also review
de novo. See Beall v.
Holloway-Johnson, 446 Md. 48, 76 (2016).
Court of Appeals recently summarized the applicable
principles of statutory construction:
This Court provides judicial deference to the policy
decisions enacted into law by the General Assembly. We assume
that the legislature's intent is expressed in the
statutory language and thus our statutory interpretation
focuses primarily on the language of the statute to determine
the purpose and intent of the General Assembly.
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
Phillips v. State, 451 Md. 180, 196-97 (2017)
(quoting Douglas v. State, 423 Md. 156, 178 (2011)).
will explain, we do not agree with the circuit court's
interpretation of the statute. Admittedly, CJP §
5-108(d) has a number of moving parts and its proper
construction is made more difficult by the decidedly
unhelpful captions added by the Code's two commercial
publishers. However, the exception to the statute for actions
brought against parties who were in possession and control of
the premises at the time the injury or accident occurred has
been part of the statute since it was first enacted in 1970.
In the ensuing 47 years, the statute has been amended on
several occasions. For our purposes, the critical amendment
was enacted in 1991. There is nothing in the legislative
history of the 1991 amendment that suggests that the General
Assembly intended to eliminate the existing
exception--rather, the legislative intent was to add three
additional, narrowly-crafted, exceptions to the statute to
address certain asbestos related claims.
captions for subsection (d) that appear in the versions of
the Code published by LexisNexis and West Publishing do not
affect the analysis because captions and catchlines are not
part of the law itself and should not be considered when
construing the statute. We recognize that our conclusion is
inconsistent with dicta in the Hagerstown Elderly
Associates opinion. However, the Court of Appeals more
thoroughly addressed the scope of subsection (d) in Rose
v. Fox Pool Corp., 335 Md. 351, 360 (1994), and our
result is consistent with the analysis in that decision.
Defining the Problem: Is "Or" Used Conjunctively or
Disjunctively in the Statute?
of repose are designed to establish "an absolute bar to
an action or to provide a grant of immunity to a class of
potential defendants after a given time period."
Anderson v. United States, 427 Md. 99, 118 (2011).
Section 5-108 addresses certain claims arising out of
improvements to real property. It states (emphasis added):
(a) 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.
(b) Except as provided by this section, a cause of action for
damages does not accrue and a person may not seek
contribution or indemnity from any architect, professional
engineer, or contractor 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 10 years
after the date the entire improvement first became available
for its intended use.
(c) Upon accrual of a cause of action referred to in
subsections (a) and (b) of this section, an action shall be
filed within 3 years.
(d)(1) 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.
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:
1. The defendant is a manufacturer of a product that contains
2. The damages to an improvement to real property are caused
by asbestos or a product that contains asbestos;
3. The improvement first became available for its intended
use after July 1, 1953;
4. The improvement:
A. Is owned by a governmental entity and used for a public
B. Is a public or private institution of elementary,
secondary, or higher education; and
5. The complaint is filed by July 1, 1993.
cause of action for an injury described in this section