Dixon v. Checchia, 74

• Decision Date: 14 February 1968
• Docket Number: No. 74,74
• Citation: 249 Md. 20,238 A.2d 247
• Parties: Augusta E. DIXON et al. v. Anthony CHECCHIA, Adm'r of the Estate of Pasquale Checchia.
• Court: Maryland Court of Appeals

Page 20

249 Md. 20

238 A.2d 247

Augusta E. DIXON et al. v. Anthony CHECCHIA, Adm'r of the Estate of Pasquale Checchia.

No. 74.

Court of Appeals of Maryland.

Feb. 14, 1968.

W. Byron Sorrell, Hyattsville (Richard S. Paulson, Arthur D. Leach and Sorrell & Paulson, Hyattsville, on the brief), for appellants.

John J. Mitchell, Rockville (Donahue, Ehrmantraut, Mitchell & Gleason, Rockville, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES, FINAN and SINGLEY, JJ.

BARNES, Judge.

This is an appeal from the granting of defendant's motion for summary judgment in the Circuit Court for Prince George's County (Bowie, J.). The plaintiffs-appellants argue (1) that an amendment to Code (1957), Article 93, Section 112, effective June 1, 1966, extending, in certain instances, the time in which an action may be instituted against an executor or administrator is applicable to an action arising out of an accident occurring prior to the effective date of the amendment, and (2) that, in any event, the defendant-appellee is estopped from pleading and relying upon the six month requirement for the institution of suit. We disagree and will affirm the order of the lower court.

(1)

It was alleged in the court below, by a declaration filed on September 28, 1966, that the appellant, Augusta E. Dixon (Mrs. Dixon), and the appellant, Robert Edward Dixon (Mr. Dixon), were involved in an automobile accident in Prince George's County with Pasquale Checchia (Checchia) on February 16, 1965, and that they sustained damages as a result of his negligence. It was further alleged that Checchia died on October 25, 1965, that Anthony Checchia was appointed administrator of the decedent's estate on December 10, 1965, by the Orphan's Court of Montgomery County, and that the 'plaintiffs (appellants here) are entitled to bring this action pursuant to Section 112 of Article 93 of the Annotated Code of Maryland (1964 Replacement Volume) as amended by the Legislation of 1966.'

Article 93, Section 112, prior to the 1966 amendment provided, in relevant part, as follows:

'(T)hey (the administrator or executor) shall be liable to be sued in any court of law or equity, in any action (except slander) which might have been maintained against the deceased; * * * provided, however, that any such action for injuries to the person to be maintainable against an executor or administrator must be commenced within six calendar months after the date of the qualification of the executor or administrator of the testator or intestate.' (Emphasis supplied).

The relevant part of Article 93, Section 112, as amended effective June 1, 1966, is as follows:

'(T)hey shall be liable to be sued in any court of law or equity, in any action (except slander) which might have been maintained against the deceased; * * * provided, however, that any such action maintainable against an executor or administrator must be commenced within six calendar months after the date of the qualification of the executor or administrator of the testator or intestate; except that such action against the estate of a testator or intestate may be instituted after the expiration of six months but within the statute of limitation in the event the deceased was covered by an existing insurance policy at the time of the occurrence, the existence of such insurance coverage not being admissible at the trial of the case and the recovery in the event of a judgment against the estate to be limited to the extent of such existing insurance.' (Emphasis supplied).

If the pre-1966 Section 112 applies, the appellants had to begin their action by June 10, 1966. ¹ If the 1966 amendment, effective June 1, 1966, applies, the appellants' declaration filed September 28, 1966, was timely.

In deciding which law applies, this Court must look to the intent of the Legislature. Janda v. General Motors, 237 Md. 161, 168-169, 205 A.2d 228, 232 (1964). In Janda, Judge Hammond (now Chief Judge) noted that 'various rules have been formulated by the court to aid in determining whether a statute is to be applied retrospectively or prospectively.' He stated rule (2) as follows:

'(2) Ordinarily a statute affecting matters or rights of substance will not be given a retrospective operation as to transactions, matters and events not in litigation at the time the statute takes effect: '* * * unless its words are so clear, strong and imperative in their retrospective expression that no other meaning can be attached to them, or unless the manifest intention of the Legislature could not otherwise be gratified. * * * (citing cases). An amendatory act takes effect, like any other legislative enactment, only from the time of its passage, and has no application to prior transactions, unless an intent to the contrary is expressed in the Act or clearly implied from its provisions.' State Tax Comm. v. Potomac Power Company, 182 Md. 111, 117, 32 A.2d 382, 384.

In Chandlee v. Shockley, 219 Md. 493, 150 A.2d 438 (1959), Judge (now Chief Judge) Hammond pointed out that the period of limitations in Section 112 is set forth in the statute and is considered a part of the grant of the right itself. The limitation period in Article 93, Section 112 is a part of the substantive right that did not exist at common law but is wholly conferred by the statute. See Chandlee, supra. We think rule (2) is controlling.

The appellants argue that in ascertaining the intention of the Legislature the Court should note that the application of the 1966 amendment would not defeat the policy of Section 112, i.e., the speedy distribution of estates, since recovery is limited to the amount of the insurance policy, and that the Legislature could have expressly provided that the new provision would only apply to the cases in which the insurance policy was entered into by the decedent after June 1, 1966-the effective date of the statute. We agree that the 1966 amendment does not defeat the policy of the six month limitation in Section 112, and this, presumably, is why the Legislature amended it. We are not persuaded by the argument that the Legislature could have specifically provided for prospective application if they so intended, for, as pointed out above in rule (2), the general rule is otherwise, i.e., 'unless its (the statutes) words are so clear, strong and imperative in their retrospective expression that no other meaning can be attached to them, or unless the manifest intention of the Legislature could not otherwise be gratified.'

The appellants further urge that two cases, Ireland v. Shipley, 165 Md. 90, 166 A. 593 (1933), and Mayor and City Council of Baltimore v. Perticone, 171 Md. 268, 188 A. 797 (1937), construing amendments to the workmen's compensation laws, are controlling here. We disagree.

In Ireland v. Shipley, supra, the Court was concerned with the intent of the Legislature in its repeal and re-enactment of Section 54, Article 101 by Chapter 342 of the Acts of 1931. Prior to Chapter 342 of the Acts of 1931, Section 54 read as follows:

"The powers and jurisdiction of the Commission over each case shall be continuing and it may from time to time make such modifications or change with respect to former findings or orders with respect thereto as in its opinion may be justified."

By Chapter 342 the following was added:

"(P)rovided, however, that no modification or change of any final award of compensation shall be made by the Commission unless application therefor shall be made to the Commission within one year next following the final award of compensation."

The appellant in Ireland had received his 'final award' in 1921, seven years before the amendment limiting the time for application for modification to one year following the final award. The Court, after stating the general rule in terms substantially similar to rule (2) set out above, held that the amendment could not be applied retrospectively so as to completely bar the appellant's 'valuable right' to make application for a modification of the final award. The Court did, however, hold that the amendment would be applied to require the appellant to make application for modification within one year...