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Duffy v. CBS Corp.

Court of Appeals of Maryland

March 28, 2018


          Argued: December 1, 2017

          Circuit Court for Baltimore City Case No. 24-X-14-000186

          Barbera, C.J.Greene, McDonald, Watts, Hotten, Getty, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.


          Greene, J.

          In this case we must decide whether the statute of repose, presently codified as Section 5-108 of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2013 Repl. Vol.) ("CJP § 5-108" or "statute of repose"), bars the causes of action brought by James F. Piper ("Mr. Piper"), now deceased. After Mr. Piper's death, and while the case was pending in the intermediate appellate court, the Register of Wills appointed Petitioner, June Diane Duffy ("Ms. Duffy" or "the Estate"), Personal Representative of Mr. Piper's Estate, [1] and she was substituted in place of the decedent as a party to the litigation.[2]Ms. Duffy pursues, on behalf of the Estate, Mr. Piper's causes of action for personal injury and wrongful death resulting from his undisputed and unknowing exposure to asbestos that last occurred days before the statute of repose was first enacted in 1970 as Article 57, § 20 in the Maryland Code (1957, 1968 Repl. Vol., 1970 Cum. Supp.). The General Assembly enacted the statute of repose to provide a temporal limitation to the discovery rule's[3]applicability to causes of action for injuries "arising" from improvements to real property. Mr. Piper's causes of action stem from his exposure to asbestos, which led to the development of mesothelioma, a latent disease.[4] Due to the latent effects of asbestos exposure and, thus, the causes of action at issue, the penultimate question in the case before us is when do injuries from asbestos exposure "arise" for purposes of the statute of repose. The answer to that question resolves whether the statute of repose when it was first enacted, as 1970 Maryland Laws, Chapter 666 ("Ch. 666"), and originally codified as Art. 57, § 20, bars Petitioner's claim for injuries that arose prior to the enactment of the statute. To guide us, we rely on the tenets of statutory construction to determine what the drafters meant by the term "arise" within the meaning of the statute of repose.

         Factual and Procedural Background

         The undisputed facts are as follows. Respondent, CBS Corporation, is a Delaware corporation. It was formerly known as Viacom, Inc., a successor by merger to the CBS Corp. and also formerly known as Westinghouse Electric Corporation ("Westinghouse"). At the time of Mr. Piper's injuries, CBS Corp. was known as Westinghouse. In March 1970, Westinghouse contracted with Potomac Electric Power Company ("Pepco") to manufacture, supply, and deliver the components needed to build a Steam Turbine Generator ("Unit 1") at Pepco's Morgantown Generating Station ("Morgantown"). Westinghouse built the major components of the turbine offsite and constructed the turbine onsite at Morgantown. Included in the turbine specifications were insulating materials that contained asbestos. Walter E. Campbell Company ("WECCO") entered into a subcontract with Westinghouse to supply and install the insulating materials that Westinghouse specified for construction of the turbine generator. Westinghouse provided WECCO with the "Process Specification" for the "Application of Asbestos Compound by Spraying." These detailed instructions set forth the placement and method for applying insulation to the inside surfaces of the steam turbine enclosures.

         Mr. Piper worked as a steamfitter at Morgantown. During the construction of the Unit 1 turbine, Mr. Piper worked on the steam piping that connected the Unit 1 turbine to another turbine. In his complaint, Mr. Piper alleged that at that time he was unknowingly exposed to asbestos as a result of WECCO's installation of the insulating material that contained asbestos. According to WECCO's payroll records, the insulation was installed between May 3, 1970 and June 28, 1970, which made June 28, 1970 the last possible day of Mr. Piper's undisputed exposure to the asbestos containing insulation.

         Mr. Piper was diagnosed with mesothelioma on or about December 26, 2013. On March 26, 2014, he filed suit in the Circuit Court for Baltimore City against thirty-three defendants, including Westinghouse.[5] His four-count complaint against the various defendants alleged strict liability, breach of warranty, negligence, and "aiding and abetting and conspiracy, " which stemmed from his work as a plumber and steamfitter from 1948 to 1990. Specifically, Mr. Piper alleged that in connection with his employment, he used, worked with, or was exposed to asbestos products that were manufactured, supplied, and/or installed by the defendants. His complaint further alleged that some of the defendants failed to warn users that asbestos products contained "harmful, deleterious, carcinogenic and inherently dangerous asbestos dust and fibers which unreasonably endangered the life and health of persons using, working with or working around the asbestos products, " and failed to protect users against these dangers.

         At the close of discovery on January 9, 2015, Westinghouse filed a motion for summary judgment, which Mr. Piper opposed. On March 3, 2015, the Circuit Court held a hearing on the open motions. Westinghouse argued that Mr. Piper's causes of action against the corporation were barred by CJP § 5-108. Specifically, counsel for Westinghouse emphasized that the facts in the instant case were no different than the facts of Burns v. Betchel Corp., 212 Md.App. 237, 66 A.3d 1187 (2013), where the trial court granted summary judgment in favor of a similarly situated defendant who successfully asserted that the statute of repose barred the plaintiff's claims in that case.[6] Westinghouse also argued that construing CJP § 5-108 as an applicable bar to Mr. Piper's claims would not infringe on any rights he possessed in 1970. Westinghouse contended that Mr. Piper could not have successfully brought a claim against the corporation at the time of his exposure because the exposure, at that time, had not manifested into a cognizable injury.

         In contrast, Mr. Piper maintained that his injury arose at the time of his asbestos exposure around June 28, 1970. He asserted that John Crane, Inc. v. Scribner, 369 Md. 369, 800 A.2d 700 (2002), was applicable precedent, and that the reasoning in that case confirmed that his cause of action "arose" on the date of his exposure to asbestos. Specifically, counsel for Mr. Piper argued that the Scribner analysis was directly applicable to the facts of this case because in Scribner, the Court of Appeals determined that in an asbestos-exposure related claim, a cause of action "arises" upon exposure to asbestos. Additionally, Mr. Piper's counsel contended that if the exposure predated the enactment of the statutory cap under § 11-108 of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2015 Repl. Vol.) ("CJP § 11-108"), then the statute could not retroactively apply to an injury or cause of action that "arose" prior to the statute's enactment. According to Mr. Piper, the same was true here, such that the statute of repose could not apply retroactively when his injury, and, thus, his causes of action "arose" prior to enactment of the statute. Additionally, Mr. Piper relied on Section 2 of Ch. 666, which states that the statute does not apply to "actions arising on or before June 30, 1970, " to advance his argument that the statute of repose does not bar his claims.

         Westinghouse, in response, contended that this Court's ruling in Scribner was a narrow holding that applied only to the statutory cap on noneconomic damages. Alternatively, counsel for Mr. Piper asserted that subsection (d)(2)(ii) of § 5-108 excluded Westinghouse on the basis that Westinghouse was a manufacturer[7] for purposes of the statute. Westinghouse responded that it was not a manufacturer of an asbestos-containing product for purposes of subsection (d)(2)(ii) of § 5-108, and, therefore, the exception did not apply.

         At the close of the hearing, the Circuit Court granted Westinghouse's motion for summary judgment and entered an Order on May 14, 2015. Mr. Piper noted a timely appeal to the Court of Special Appeals. Pending the appeal, Mr. Piper passed away on June 2, 2016, and Ms. Duffy was appointed Personal Representative of Mr. Piper's Estate on June 17, 2016.

         On May 31, 2017, in a reported opinion, the Court of Special Appeals affirmed the Circuit Court's ruling. Duffy v. CBS Corp., 232 Md.App. 602, 161 A.3d 1, cert. granted, 456 Md. 53, 170 A.3d 290 (2017). The intermediate appellate court first considered the plain meaning of the language of CJP § 5-108(a). Id. at 613, 161 A.3d at 7. By characterizing Mr. Piper's injury as the mesothelioma diagnosis, the Court of Special Appeals concluded that Mr. Piper's cause of action did not "arise" or "accrue" until 2013. The intermediate appellate court reasoned that the diagnosis of mesothelioma was outside of the twenty-year limitations period set forth in the statute of repose beginning with the operation of the turbine. Id. at 615, 161 A.3d at 8. That court, therefore, concluded that the plain language of CJP § 5-108 barred Mr. Piper's claims. Id. at 614, 161 A.3d at 8.

         Next, the Court of Special Appeals considered Mr. Piper's argument that the uncodified Section 2 of Ch. 666 demonstrated that the statute did not apply to "actions arising on or before June 30, 1970." Id. at 616, 161 A.3d at 9. The purpose of CJP § 5-108, according to the intermediate appellate court, was to "set a time limit after which the discovery rule could not operate[.]" Id. at 620, 161 A.3d at 11 (quoting Hillard & Bartko Joint Venture v. Fedco Sys., Inc., 309 Md. 147, 160, 522 A.2d 961, 968 (1987)). With that purpose in mind, the intermediate appellate court concluded that the word "accruing, " as used in the "purpose paragraph"[8] of Ch. 666, and the word "arising, " as used in Section 2 of Ch. 666, must be construed to have the same meaning. Id. The Court of Special Appeals concluded that interpreting the words "arise" and "accrue" as indistinguishable terms would avoid any ambiguity or conflict between the statute's purpose and Section 2 of the statute. Id. The Court of Special Appeals, however, did not reach the issues of whether Section 2 of Ch. 666 carried the force of law due to the General Assembly not having codified that section, whether Scribner's reasoning was applicable to the statute of repose, or whether the manufacturer exception contained in CJP § 5-108(d)(2)(ii) applied to Westinghouse. Id. at 623-24, 161 A.3d at 13.

         Ms. Duffy petitioned this court for certiorari, which we granted. Duffy v. CBS Corp., 456 Md. 53, 170 A.3d 290 (2017). Ms. Duffy posed three questions for our review.[9] Because we answer the first question in the affirmative and hold that the statute of repose does not apply to this case, we do not address the remaining questions.

         Standard of Review

         This appeal concerns the Circuit Court's grant of summary judgment. When we review a grant of summary judgment we first determine whether there is a genuine dispute of material fact. Koste v. Town of Oxford, 431 Md. 14, 24-25, 63 A.3d 582, 589 (2013). If there is no genuine dispute of material fact, then we review the grant of summary judgment de novo to determine if the hearing judge's legal conclusions were correct. Id. at 25, 63 A.3d at 589. Westinghouse and Ms. Duffy agree that the last possible day Mr. Piper could have been exposed to asbestos was June 28, 1970. The parties' contentions rest solely on the legal question of the applicability of CJP § 5-108 to Mr. Piper's causes of action. Accordingly, we review the trial court's decision for legal correctness. See id.


         Our determination of whether "the Court of Special Appeals err[ed] in holding that the term 'arising' [as] used in Section 2 of the original statute of repose actually means 'accruing' in contravention of this Court's holding in John Crane, Inc. v. Scribner" requires resolution of two issues. First, in Part I, we determine whether the statute of repose applies as a bar to recovery for the injuries that Mr. Piper suffered. Specifically, we determine whether the statute is ambiguous as it relates to when an injury and a cause of action "arise" within the meaning of the statute of repose. Second, in Part II, to settle any confusion created by the intermediate appellate court's interpretation of the statute, we take this opportunity to clarify when an asbestos related cause of action "arises" and "accrues". Specifically, we consider the applicability of the discovery rule in relation to the manifestation of a latent disease.

         If a statute's language is clear and unambiguous, the Court ordinarily looks no further than the statute itself. See Watts v. State, _ Md. _, _ A.3d _ (2018); see also Koste, 431 Md. at 25-26, 63 A.3d at 589. If the language of the statute is clear and remains consistent with the overall purpose of the statute, then we need not conduct any further analysis. See Rose v. Fox Pool Corp., 335 Md. 351, 359, 643 A.2d. 906, 910 (1994) (considering the legislative history of § 5-108 to hold that the statute was applicable to a cause of action concerning an injury that arose from a latent defect in the construction of a swimming pool).


         A Brief History of CJP § 5-108

         We had occasion to discuss CJP § 5-108's legislative history in Rose, a case concerning § 5-108's applicability to a suit for injuries that resulted from a latent defect in the construction of an in-ground swimming pool. 335 Md. at 370-71, 643 A.2d at 915 (1994). After several attempts in the 1967, 1968, and 1969 legislative sessions, the General Assembly enacted Art. 57, § 20 in 1970 to provide repose to certain classes of defendants against causes of action brought by plaintiffs who had sustained injuries involving improvements to real property. Id. at 365, 643 A.2d at 912-13. Art. 57, § 20 provided:

No action to recover damages for injury to property real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages incurred as a result of said injury or death, shall be brought more than twenty years after the said improvement was substantially completed. This limitation shall not apply to any action brought against the person who, at the time the injury was sustained, was in actual possession and control as owner, tenant, or otherwise of the said improvement. For purposes of this section, "substantially completed" shall mean when the entire improvement is first available for its intended use.

         Four years later, however, the General Assembly amended Article 57, § 20, as part of the larger Code revision. The language was changed in CJP § 5-108(a) from "[n]o action . . . shall be brought" in Art. 57, § 20, to "[e]xcept as provided by this section, no cause of action for damages accrues . . . ." The revision also added subsection (c), which is now subsection (e) in the presently codified version. See Rose, 335 Md. at 366, 643 A.2d at 913. This addition provided a description of when a cause of action for wrongful death accrued under the statute.[10] The 1974 revised statute became CJP § 5-108:

(a)Injury resulting from improvement to realty. - 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)Exception. - This section does not apply if the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred.
(c)When action accrues. - A cause of action for an injury described in this section accrues when the injury or damage occurs.

         In 1979, the General Assembly added what is currently subsection (b), and amended the section a year later. Id. at 366, 643 A.2d at 913.[11] The General Assembly subsequently amended the statute in 1991 in response to the multitude of asbestos-related cases being brought throughout the state, which we discuss in more detail later in this opinion. Id. at 368-70, 643 A.2d at 914-15.[12]

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