Ferguson v. Loder

Decision Date07 July 2009
Docket NumberNo. 873, September Term, 2008.,873, September Term, 2008.
Citation186 Md. App. 707,975 A.2d 284
PartiesKathy FERGUSON v. Georgia Bohlayer LODER, et al.
CourtCourt of Special Appeals of Maryland

Robert J. Zarbin (The Jaklitsch Law Group, on the brief), Upper Marlboro, and James K. Macalister, Baltimore, for appellant.

David E. Beller (Douglas F. Gansler, and Philip H. Lohrey, Office of the Atty. Gen., on the brief), Baltimore, for appellee.



In this appeal we consider whether a tort action, filed within the general three year statute of limitations, may proceed against the State of Maryland ("State") when the State is made a party to the suit after the three-year filing deadline specified by the Maryland Tort Claims Act ("MTCA"). Kathy Ferguson, appellant, filed a tort action in the Circuit Court for Baltimore City against State employee Georgia Bohlayer Loder, appellee, within three-years after the cause of action accrued. Loder moved to dismiss, arguing that she was entitled to qualified immunity. Ferguson then amended her complaint to add the State as a defendant, but did so after the MTCA's three year deadline for filing a tort action against the State. Consequently, the circuit court dismissed both the State and Loder, based on tort immunity.

Ferguson does not dispute Loder's immunity on appeal, rather, she contends that her suit should have proceeded against the State on three distinct grounds: (1) Maryland Code (2008 Repl. Vol.), § 9-902(d) of the Labor and Employment Article ("LE") extends the MTCA's filing deadline by two months; (2) an amendment substituting the State for its employee relates back to the original filing date; and (3) the action substantially complied with the MTCA because the State had notice of the claim and the Attorney General's office answered the complaint on behalf of Loder within the three-year deadline.1

For the reasons that follow, we conclude that the theories suggested by Ferguson for tolling the MTCA's three-year filing deadline lack merit, and therefore, we shall affirm the judgment.

Facts and Proceedings

On March 1, 2005, Ferguson was driving northbound on Washington Boulevard when a vehicle driven by Loder allegedly ran a red light and struck Ferguson. At the time of the collision, Loder was a State employee, operating a State-owned vehicle in the course of her employment. On March 11, 2005, the State Treasurer received a letter from counsel for Ferguson giving notice of her intent to bring a personal injury claim "as a result of negligence [by a State agent, servant, and/or employee]."

Before filing her negligence action, Ferguson pursued a workers' compensation claim. Once that claim was resolved, Ferguson entered negotiations with the State on her personal injury claim, and ultimately rejected a settlement offer.

On December 13, 2007, Ferguson filed a single count negligence action against Loder. The State was not named in the complaint, and Loder was not identified as a State employee. The Attorney General's office, acting on behalf of Loder, filed an answer on January 29, 2007, which included a defense of immunity.

On March 12, 2007, the Attorney General's office filed a motion to dismiss or for summary judgment on behalf of Loder, arguing that Loder enjoyed qualified tort immunity under Maryland Code (2004 Repl. Vol., 2008 Supp.), § 12-101 et. seq. of the State Government Article2 ("SG") and Maryland Code (2006 Repl. Vol., 2008 Supp.), § 5-522 of the Courts and Judicial Proceedings Article ("CJ"). The timing of this motion—approximately a week and a half after the three year anniversary of the collision—was significant because the MTCA requires that a party bringing an action against the State file suit within three years after the cause of action arises. SG § 12-106(b).

Ferguson responded by filing an amended complaint on March 14, 2007, naming the State as a defendant, specifying that Loder was acting within the scope of her employment with the State, and adding a count against the State for negligent entrustment. Ferguson also filed a "Motion to Substitute Party by Interlineation" on March 26, 2007, in which she argued that LE § 9-902(d) extended the MTCA's three year deadline by sixty days, and that the amendment adding the State merely corrected a misnomer. The State moved to dismiss the amended complaint or for summary judgment on the ground that Ferguson failed to meet the MTCA's three-year filing deadline.3

At the conclusion of a hearing on May 30, 2008, the circuit court granted the motion to dismiss the amended complaint.4 First, the court distinguished the conditions precedent for suit under the MTCA from a statute of limitations, and found that the sixty day extension under LE § 9-902(d) applied only to the latter. Second, the court found that the amended complaint did not correct a misnomer but instead added a new party and, thus, did not relate back to the original complaint. Finally, the court found that the substantial compliance argument advanced by Ferguson was insufficient "in this particular context." This appeal followed.

Standard of Review

In reviewing a motion to dismiss, "our task is confined to determining whether the trial court was legally correct in its decision to dismiss." Zimmer-Rubert v. Bd. of Educ., 179 Md.App. 589, 593, 947 A.2d 135 (2008) (citation omitted). In doing so, "we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party," and "will only find that dismissal was proper if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff." Id. (citations and internal quotation marks omitted).


Enacted in 1981, the MTCA waived the State's sovereign immunity from tort actions, subject to certain conditions and limitations. SG § 12-104(a)-(b); Condon v. State, 332 Md. 481, 491, 632 A.2d 753 (1993). These conditions and limitations include the requirements set forth in SG § 12-106(b):

A claimant may not institute an action under this subtitle unless:

(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim;

(2) the Treasurer or designee denies the claim finally; and

(3) the action is filed within 3 years after the cause of action arises.[5]

The sole focus of this dispute is the three year deadline for filing set by SG § 12-106(b)(3). Both parties acknowledge that § 12-106(b)(3) "is not a statute of limitations," but is instead "a condition precedent to the initiation of an action under the [MTCA]." See Johnson v. Md. State Police, 331 Md. 285, 290, 628 A.2d 162 (1993) (citations and quotation marks omitted). Rios v. Montgomery County, 386 Md. 104, 872 A.2d 1 (2005), explained the distinction as follows:

We have previously defined a condition precedent as a condition attached to the right to sue at all. It operates as a limitation of the liability itself as created, and not of the remedy alone. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right. Conversely, a statute of limitations affects only the remedy, not the cause of action. A condition precedent cannot be waived under the common law and a failure to satisfy it can be raised at any time because the action itself is fatally flawed if the condition is not satisfied. This requirement of strict or substantial compliance with a condition precedent is of course subject to abrogation by the General Assembly....

Id. at 127-28, 872 A.2d 1.

As a result of this distinction, the Court of Appeals has repeatedly held that statute of limitations tolling principles are inapplicable to conditions precedent. See, e.g., State v. Sharafeldin, 382 Md. 129, 148, 854 A.2d 1208 (2004) (holding that the State cannot waive its sovereign immunity in contract actions where the claimant fails to file within the one year deadline); Waddell v. Kirkpatrick, 331 Md. 52, 59-60, 626 A.2d 353 (1993) (holding that a condition precedent to a wrongful death action cannot be tolled by laws directed at the general statute of limitations prescribed by CJ § 5-101); Johnson, 331 Md. at 290, 628 A.2d 162 (holding that the tolling provision in CJ § 5-201-the general tolling provision applicable to minors-does not apply to the time period for filing a claim under the MTCA). Ferguson concedes as much, but asserts that her theories are not grounded in statute of limitations tolling jurisprudence. We now address each of these theories in detail.

1. Labor and Employment Article § 9-902(d)

Ferguson first contends that LE § 9-902(d) extends the MTCA's three year deadline by two months. Title 9, subtitle 9 of the Labor and Employment Article addresses actions against third parties for injuries covered by worker's compensation. The statute gives parties paying a worker compensation claim the exclusive right to sue a responsible third party for a period of two months after an award of compensation. LE § 9-902(c). Accordingly, LE § 9-902(d) suspends the limitations period applicable to the injured worker's cause of action during the time when the payor has the exclusive right to sue: "The period of limitations for the right of action of a covered employee or the dependents of the covered employee against the third party does not begin to run until 2 months after the first award of compensation made to the covered employee or the dependents under this title."

Ferguson argues that this provision should be read broadly as applying to all time-restricted rights, not just statutes of limitations. Specifically, Ferguson asserts that the use of the more general term "limitations" (as opposed to "statute of limitations"), and the preceding phrase "for the right of action," demonstrates a legislative...

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