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SVF Riva Annapolis LLC v. Gilroy

Court of Appeals of Maryland

June 25, 2018

SVF RIVA ANNAPOLIS LLC, et al.
v.
MOREEN ELIZABETH GILROY, et al.

          Argued: April 6, 2018

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

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          ADKINS, JUDGE

         A statute of repose "shelters legislatively-designated groups from an action after a certain period of time." [1] Anderson v. United States, 427 Md. 99, 118 (2012). Maryland's statute of repose, codified at Md. Code (1973, 2013 Repl. Vol.), § 5-108 of the Courts and Judicial Proceedings Article ("CJP"), bars certain claims relating to injuries caused by improvements to real property. CJP § 5-108(d)(2) lists several exceptions to the statute of repose. Subsection (d)(2)(i) provides that the protections of the statute shall not apply if the "defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred . . . ."[2] The remaining subsections, (d)(2)(ii)-(iv), eliminate the statute's protection for certain defendants in cases where a claimed injury was caused by exposure to asbestos. In this case, we must determine whether the possession and control exception opens defendants to liability even in cases that do not involve asbestos.

         BACKGROUND

         On January 13, 2012, Sean McLaughlin arrived at the Chuck E. Cheese restaurant located at the Festival at Riva Shopping Center in Annapolis, Maryland to repair the HVAC unit on the restaurant's roof. McLaughlin placed a ladder on one of the restaurant's exterior walls that he presumably thought led up to the building's roof. The wall enclosed an open-air garbage area typically occupied by dumpsters or trash compactors. After McLaughlin climbed the ladder, he mounted the wall and fell 20 feet to the concrete pad on the other side. McLaughlin sustained severe injuries and died 12 days later.

         Respondents Moreen Elizabeth Gilroy and McLaughlin's other survivors[3] filed a wrongful death action in the United States District Court for the District of Maryland against Petitioners SVF Riva Annapolis, LLC ("SVF"), the owner of the shopping center in which Chuck E. Cheese was located, and Rappaport Management Corporation ("Rappaport"), the shopping center's property manager. In federal court, SVF joined the tenant and restaurant operator, CEC Entertainment, Inc. ("CEC"), in a third-party complaint. Gilroy amended her federal complaint to include CEC. The federal court dismissed the complaint without prejudice for lack of subject-matter jurisdiction because the parties lacked complete diversity.

         Gilroy refiled the complaint against SVF, Rappaport, and CEC in the Circuit Court for Anne Arundel County. The complaint alleged, in negligence and premises liability claims, that all three defendants failed to warn McLaughlin that the wall had no roof access.

         SVF and Rappaport filed separate motions for summary judgment and CEC filed a motion to dismiss. SVF and Rappaport both contended that the statute of repose barred Gilroy's claims because the building was completed in 1990, beyond the 20-year limit imposed by the statute, and because the possession and control exception applied only to asbestos cases. Additionally, Rappaport argued that as the property manager, it was not in "possession and control" of the property, and therefore not subject to liability. CEC moved to dismiss on the grounds that McLaughlin was contributorily negligent, and the action was untimely under Maryland's Wrongful Death Act, CJP § 3-904(g)(1). CEC also incorporated SVF's arguments regarding the statute of repose.

         After a hearing, the Circuit Court, ruling that the statute of repose applied, granted the motions for summary judgment and motion to dismiss and explained that the possession and control exception only applies to asbestos-related claims. The judge explained:

[T]he Court notes 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 [L]egislature was clearly trying to create the carve out or 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 Court of Special Appeals reversed-holding that the possession and control exception is not limited to asbestos cases. See Gilroy v. SVF Riva Annapolis LLC, 234 Md.App. 104, 125 (2017). We granted certiorari to answer the following question:[4]

Does the possession and control exception to the statute of repose apply in non-asbestos cases?

         For the reasons set forth below, we hold that it does and shall affirm the decision of the Court of Special Appeals.

         DISCUSSION

         The parties appeal the Circuit Court's decision to grant the motions for summary judgment and a motion to dismiss. When considering such motions, we must first determine whether there are any genuine disputes of material fact. Koste v. Town of Oxford, 431 Md. 14, 24-25 (2013). If there is no such dispute, then we decide whether the lower court's legal conclusion was legally correct. Id. at 25. Here, the Circuit Court reached a conclusion regarding the scope of CJP § 5-108(d)(2)(i). Assessing a lower court's interpretation of a statute is a question of law which, we review without deference. State v. Neiswanger Mgmt. Servs., LLC, 457 Md. 441, 455 (2018) ("We review the Circuit Court's statutory interpretation without deference.").

         The issue here is one of statutory interpretation: whether the statute's possession and control exception applies in non-asbestos cases. "The cardinal rule of statutory construction is to ascertain and effectuate the intent of the [L]egislature." Blake v. State, 395 Md. 213, 224 (2006). When interpreting a statute, "[t]his Court provides judicial deference to the policy decisions enacted into law by the General Assembly." Phillips v. State, 451 Md. 180, 196 (2017). This analysis assumes, however, "that the [L]egislature's intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute . . . ." Id.

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.

Douglas v. State, 423 Md. 156, 178 (2011) (quoting Evans v. State, 420 Md. 391, 400 (2011)).

         Consistent with these principles, we begin with an analysis of the plain language of CJP § 5-108.

         Plain Language

         CJP § 5-108 is titled "[i]njury to person or property occurring after completion of improvement to realty." In pertinent part, it provides:

(a) Injury occurring more than 20 years later. - 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.
***
(d) (1) "Supplier" defined. - 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 [under certain conditions]: . . . .

(Emphasis added).

         CJP § 5-108(a) prohibits a plaintiff from bringing a claim for wrongful death, personal injury, or injury to personal property resulting from an improvement to real property more than 20 years after the improvement. CJP § 5-108(b) provides that such actions have a 10-year limit when brought against certain classes of professionals such as architects, professional engineers, and contractors.

         The possession and control exception excludes certain defendants from the protections articulated in CJP § 5-108(a) and (b). CJP § 5-108(d)(2)(ii)-(iv) all relate to claims against manufacturers or suppliers of asbestos products. The possession and control exception, however, makes no mention of asbestos and eliminates the statute's protection for any defendant "in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred[.]" Id. (d)(2)(i).

         As the Court of Special Appeals observed, the four exceptions in CJP § 5-108(d)(2) are linked by the conjunction "or." Gilroy, 234 Md.App. at 111. "And" and "or" are both conjunctions used to link other words, phrases, or clauses. "Or" has a disjunctive meaning while "and" has a conjunctive meaning. Compare The American Heritage Dictionary of the English Language 1236 (4th ed. 2006) ("or" is a conjunction "[u]sed to indicate an alternative, usually only before the last term of a series . . . ."), with id. at 66 ("and" is a conjunction meaning "[t]ogether with or along with; in addition to; as well as[; u]sed to connect words, phrases, or clauses that have the same grammatical function in a construction.").[5]

         In several cases, Maryland courts have interpreted "or" consistently with its disjunctive meaning. In Thanos v. State, 282 Md. 709, 716-17 (1978), we recognized the "well-settled principle that where, as here, a statute forbids the doing of any of several acts stated disjunctively, a charging document alleging more than one act in a single count, even in the very language of the statute, will be defective as indefinite, since the disjunctive renders it uncertain which alternative is intended." (footnote omitted). Likewise, in Burnett v. Spencer, 230 Md.App. 24, 33 (2016), the Court of Special Appeals observed:

[Md.] Rule 2-631 states that "judgments may be enforced only as authorized by the rules or by the statute." Because the rule employs the disjunctive term "or," it is obvious, as a matter of logic and grammar, that a person may enforce a judgment by a method that is authorized by the rules alone: the ...

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