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Gilroy v. SVF Riva Annapolis LLC

Court of Special Appeals of Maryland

September 1, 2017

MOREEN ELIZABETH GILROY, ET AL.
v.
SVF RIVA ANNAPOLIS LLC, ET AL.

         Circuit Court for Anne Arundel County Case No. C-02-CV-15-001605

          Kehoe, Krauser, [*] Zarnoch, Robert A., (Senior Judge, Specially Assigned), JJ.

          OPINION

          Kehoe, J.

         Sean 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.

         SVF 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.

         Appellants 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.

         Background

         At this 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.

         Appellants 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 jurisdiction.

         Appellants 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 contributorily negligent.

         At the 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.

         The 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.

         The circuit court did not address the other grounds presented by appellees. This timely appeal followed.

         The Standard of Review

         Appellate 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).

         The 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 relevant enactments.

Phillips v. State, 451 Md. 180, 196-97 (2017) (quoting Douglas v. State, 423 Md. 156, 178 (2011)).

         As we 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.

         The 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.

         Analysis

         1. Defining the Problem: Is "Or" Used Conjunctively or Disjunctively in the Statute?

         Statutes 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.

         (2) 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 asbestos;
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 purpose; or
B. Is a public or private institution of elementary, secondary, or higher education; and
5. The complaint is filed by July 1, 1993.

         (e) A cause of action for an injury described in this section accrues ...


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