Antar v. Mike Egan Ins. Agency, Inc.

• Decision Date: 21 December 2012
• Docket Number: Sept. Term, 2011.,No. 1481,1481
• Citation: 209 Md.App. 336,58 A.3d 609
• Parties: Samuel ANTAR, et al. v. The MIKE EGAN INSURANCE AGENCY, INC., et al.
• Court: Court of Special Appeals of Maryland

209 Md.App. 336

58 A.3d 609

Samuel ANTAR, et al.

v.The MIKE EGAN INSURANCE AGENCY, INC., et al.

No. 1481, Sept. Term, 2011.

Court of Special Appeals of Maryland.

Dec. 21, 2012.

E. David Hoskins, Baltimore, MD, for Appellant.

Erin Risch, Hanover, MD, and Lauren M. Burnette, Harrisburg, PA (Marshall, Dennehey Warner, Coleman & Goggin, Harrisburg, PA, on the brief), for Appellee.

Panel: EYLER, DEBORAH S., WRIGHT, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

MOYLAN, J.

Early Twentieth Century viewers were frozen to their nickelodeons by the heart-stopping melodrama “Curfew Shall Not Ring Tonight.” ¹ With her lover Basil doomed to the gallows at the ringing of the curfew bell, the beleaguered Bess strove heroically and against every manner of complication to hold back the inexorable ticking of the clock. In the melodrama, the damsel in distress, unlike the appellants facing a deadline in the case at hand, ultimately prevailed, climbing to the top of the belfry and strapping herself to the bell's clapper to muffle its sound with her battered body. Notwithstanding the emotional tug of “Curfew Shall Not Ring Tonight,” our more prosaic caption for the real-life limitations struggle now before us must be “Time Marches On.” ²

The Present Case

The appellants, Samuel and Rose Antar and Solomon and Gloria Lewittman, owned the building at 321 North Howard Street in Baltimore City. On August 31, 2006, they obtained an insurance policy from one of the appellees, the Mt. Vernon Fire Insurance Company. They obtained the policy through the other appellee, the Mike Egan Insurance Agency, Inc. On July 13, 2007, the insured building was destroyed by fire. The appellants submitted a claim to Mt. Vernon for their loss. Mt. Vernon denied the claim after a post-fire inspection revealed that the building lacked the smoke and heat detectors required under the terms of the policy. That denial of the claim was the basis for the suit brought by the appellants against Mt. Vernon.

The date of the accrual of a cause of action is, of course, the vital starting point for computing a deadline under a statute of limitations. In the present case, no one has satisfactorily established the precise date on which Mt. Vernon refused to honor the appellants' claim. All parties agree, however, that the accrual date was no later than February 4, 2008, when the appellants filed their claim against Mt. Vernon in Pennsylvania. Although the limitations clock may already have been ticking for some weeks or even months before February 4, 2008, all parties are content to accept, as a point of departure for reckoning limitations, that the clock was ticking as of that day.

As a calculated trial tactic to take advantage of Pennsylvania's Bad Faith Statute, the appellants' suit against Mt. Vernon on February 4, 2008 was not filed in Baltimore City, or anywhere in Maryland, but in the Court of Common Pleas of Philadelphia County, Pennsylvania, alleging claims for breach of contract and bad faith. Mt. Vernon successfully joined the Mike Egan Agency as an additional party defendant in the Philadelphia County action.

On June 18, 2008, Mt. Vernon filed a motion to dismiss the suit in Philadelphia County on the grounds of forum non conveniens. On July 24, 2008, the Philadelphia County court granted Mt. Vernon's motion and dismissed the case, with leave to refile in Maryland. Not happy to leave Pennsylvania, the appellants sought appellate review of the Philadelphia County court's dismissal of their case. By Memorandum Opinion of June 15, 2010, the Pennsylvania Superior Court (the intermediate appellate court) affirmed the trial court's dismissal order. The appellants' subsequent motion for a rehearing was denied. Appellants did not seek review by the Pennsylvania Supreme Court. The order of the Superior Court was ultimately entered on the docket of the Philadelphia County Court of Common Pleas on September 27, 2010.

On May 18, 2011, the appellants first filed suit against both appellees in the Circuit Court for Baltimore City, alleging a breach of contract claim against Mt. Vernon and a negligence claim against the Mike Egan Agency. Both appellees moved for a dismissal of the suit as time-barred by the Statute of Limitations. Following a hearing on August 17, 2011, Judge Althea Handy granted the motions to dismiss the suit with prejudice. The appellants' motion for reconsideration was denied and this appeal followed.

The Appellants' Contention

All hands agree that the Maryland three-year Statute of Limitations for the present suit began running no later than February 4, 2008. In the ordinary course of events the filing deadline for the suit in Maryland would have been February 4, 2011. The suit ultimately filed in the Circuit Court for Baltimore City on May 18, 2011 would have been three months and two weeks beyond that ordinary filing deadline and would, therefore, have been time-barred.

The appellants contend, however, that the running of the limitations period in Maryland should have been tolled for the entire length of time that the suit was pending in Pennsylvania. It is their argument that the limitations clock in Maryland was frozen and did not continue to tick (or in this case did not even begin to tick) as of the moment the suit was filed in Philadelphia County. Their position is that time went into suspended animation and that the clock only resumed ticking after the litigation in Pennsylvania was finally concluded.

The appellants are a little vague as to their candidate for the terminal date of the case in Pennsylvania. It may have been July 24, 2008, when the Philadelphia County trial court dismissed the case on the ground of forum non conveniens. If Maryland limitations only resumed (or began) computing as of that date, the filing deadline in Maryland would have been July 24, 2011. The appellants, more grandiosely, further argue that the period of suspended animation may actually have continued until June 15, 2010, when the intermediate appellate court in Pennsylvania by Memorandum Opinion denied their appeal of the trial court's dismissal, which had come two years earlier. Under such a deferred terminal date, the Maryland filing deadline would not, indeed, be reached for yet another eight months.

The appellants cite no authority for so extreme a suspension of animation, one that would literally freeze time in its tracks. We know of none. The appellants, moreover, are twice bereft. They lose on the facts of their case, whatever the law, as we shall examine infra. Even if the facts were more favorable to their cause, however, they would still lose on the law. We look first to the law.

The Statute of Limitations.

To get the subject matter before us in proper perspective, it is appropriate to take note of the fact that we are not dealing with a common law of limitations or with some judicial doctrine of limitations. We are dealing with the Statute of Limitations. As the noun “Statute” expressly states, we are dealing with a legislative policy determination to establish a definite and certain deadline for the filing of a civil lawsuit, notwithstanding the fact that an occasional injustice or hardship might sometimes result from such an arbitrary and definite legislative pronouncement. Maryland Code, Courts and Judicial Proceedings Article, § 5–101 expressly states:

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

(Emphasis supplied).

Deferring for the moment any consideration of the possibility of tolling, we can state that the cause of action in this case accrued no later than February 4, 2008. Russo v. Ascher, 76 Md.App. 465, 469, 545 A.2d 714 (1988); Bacon & Assocs. v. Rolly Tasker Sails (Thai.) Co., 154 Md.App. 617, 634–37, 841 A.2d 53 (2004). Absent the possibility of tolling, the statutory filing deadline for the claim in Maryland thereby became February 4, 2011 and the suit filed in the Circuit Court for Baltimore City on May 18, 2011, therefore, was time-barred by the Statute of Limitations and was properly dismissed for that reason. This is the norm from which analysis begins.

Walko v. Burger Chef: Limitations Are Legislatively Mandated

Why is this so? There is a lot more to appellate decision-making than simply doing a patch test, comparing the facts in the case at hand to the facts in cases cited by the appellants and the appellees respectively. Simply to compare a set of facts to other sets of facts is a trivializing exercise, almost always guaranteed to miss the bigger issues. A deeper reality is in play. There is an overarching social policy that illuminates this entire area of related decision-making. On the purpose and value of limitations, the guiding philosophy has nowhere been so cogently expressed as by Judge Irvine Levine for the Court of Appeals in Walko Corporation v. Burger Chef Systems, Inc., 281 Md. 207, 378 A.2d 1100 (1977). The precise question before the Court, on certification from the United States Court of Appeals for the District of Columbia Circuit, was whether the Statute of Limitations in Maryland would be tolled by the pendency of the appellant's motion for leave to intervene in a civil action in the United States District Court for the District of Columbia. The Court of Appeals certified that the Statute of Limitations in Maryland would not be tolled.

That holding itself was relatively narrow, but the statement of controlling principle was far broader. Judge Levine quoted with approval from the Supreme Court in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945), in describing the values served by limitations statutes:

“ Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to...