Weinberg v. Johns-Manville Sales Corp.

• Decision Date: 05 April 1984
• Docket Number: JOHNS-MANVILLE,No. 55,55
• Citation: 473 A.2d 22,299 Md. 225
• Parties: Rose WEINBERG et al. v.SALES CORPORATION et al. Sept. Term 1982.
• Court: Maryland Court of Appeals

Page 225

299 Md. 225

473 A.2d 22

Rose WEINBERG et al. v. JOHNS-MANVILLE SALES CORPORATION et al.

No. 55 Sept. Term 1982.

Court of Appeals of Maryland.

April 5, 1984.

Peter T. Nicholl, Baltimore (Ashcraft & Gerel, Baltimore, on the brief), for appellants.

Leland S. VanKoten, Towson (Robert E. Scott, Jr., Bruce R. Parker, Daniel W. Whitney, Semmes, Bowen & Semmes, Donald A. Krach, F. Ford Loker, Niles, Barton & Wilmer, Michael B. Mann, Merriman & Mann, James R. Eyler, Miles & Stockbridge, Michael E. Marr, Baltimore, H. Emslie Parks and Wright & Parks, Towson, on the brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

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 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 -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 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). Johns-Manville 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 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 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 an 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. Because 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)....