Knauer v. Johns-Manville Corp.

• Decision Date: 31 January 1986
• Docket Number: Civ. No. K-80-3302.
• Citation: 638 F. Supp. 1369
• Parties: George KNAUER and Ann Knauer v. JOHNS-MANVILLE CORPORATION, et al.
• Court: U.S. District Court — District of Maryland

638 F. Supp. 1369

George KNAUER and Ann Knauer v. JOHNS-MANVILLE CORPORATION, et al.

Civ. No. K-80-3302.

United States District Court, D. Maryland.

January 31, 1986.

COPYRIGHT MATERIAL OMITTED

John W. Pfeifer, James J. Fabian, and Pfeifer & Fabian, P.A., Baltimore, Md., Thomas W. Henderson, Antonio D. Pyle, and Henderson & Goldberg, P.C., Pittsburgh, Pa., for plaintiffs.

H. Emslie Parks, Leland S. Van Koten, John W. Geldmacher, and Wright & Parks, Towson, Md., for defendant Celotex Corp.

Michael B. Mann, Donald K. Krohn, and Merriman & Mann, P.A., Baltimore, Md., for defendant Eagle-Picher Industries, Inc.

Andrew J. Graham and Kramon & Graham, P.A., Baltimore, Md., for defendant H.K. Porter.

Donald A. Krach, F. Ford Loker, and Niles, Barton & Wilmer, Baltimore, Md., for defendant Keene Corp.

Edward C. Mackie, Glenn W. Trimmer, and Rollins, Smalkin, Richards & Mackie, Baltimore, Md., for defendant Nicolet Industries, Inc.

Francis L. Casey, William Nussbaum, and Hogan & Hartson, Washington, D.C., for defendant Owens-Illinois, Inc.

E. Dale Adkins, III, M. Bradley Hallwig, and Anderson, Coe & King, Baltimore, Md., for defendant Pittsburgh-Corning Corp.

Paul Walter, John B. Isbister, Ruth Fahrmeier, and Tydings & Rosenberg, Baltimore, Md., for defendant Johns-Manville Corp.

Edward F. Houff and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., for defendant Armstrong World Industries, Inc. FRANK A. KAUFMAN, Chief Judge.

George Knauer and his wife, Ann, instituted in this Court on December 26, 1980 personal injury and consortium claims against thirteen asbestos manufacturers, alleging that George Knauer developed mesothelioma from exposure to the asbestos products of defendants. On May 1, 1982, George Knauer died, allegedly, according to plaintiff Ann Knauer, from mesothelioma. Diversity jurisdiction is present.

On May 6, 1985, Ann Knauer moved to amend the original complaint to add a survival action and a wrongful death action.¹ Over an objection stated by defendant Armstrong World Industries, Inc. (hereinafter Armstrong World) on behalf of all defendants, this Court on May 16, 1985 granted Ann Knauer leave to amend the complaint. Thereafter, Armstrong World, again acting on behalf of all defendants, asked this Court to reconsider its said decision to permit amendments to the complaint. On June 18, 1985, at the end of the second of two hearings held on the record, the undersigned Judge of this Court denied, preliminarily, defendants' motion to reconsider.²

Essentially, defendants have requested this Court either to rescind its Order permitting the complaint to be amended, or to dismiss on the merits the wrongful death and the survival actions because neither of them states a cause of action. Amendments to complaints in federal cases are liberally granted.³ When, however, it appears to a certainty that a plaintiff is not entitled to relief, leave to amend a complaint should be denied.⁴ In the case at bar, leave to amend has been appropriately granted and will not be rescinded because it is not clear that plaintiff's wrongful death and survival actions fail to state colorable claims. However, whether defendants' alternative request for dismissal should be granted with regard to either or both of those actions poses two difficult questions.⁵

I. Wrongful Death Action

Initially, the question arises as to whether the wrongful death action, considered as stated by Ann Knauer alone, is time barred under Maryland's Wrongful Death Act, Md. Cts. & Jud. Proc. Code Ann. § 3-904 (1984). Three sub-questions must be addressed in order to decide that issue: (A) Does the doctrine of relation back apply if a statutory condition precedent rather than a statute of limitations is involved? (B) Is the filing of a wrongful death action within three years of a decedent's death a statutory condition precedent to the bringing of suit? (C) Is the three-year time requirement tolled by Maryland's Workmen's Compensation Act?

A. Relation Back—Limitations

An action for wrongful death may be brought "for the benefit of the wife, husband, parent, and child of the deceased person." Md. Cts. & Jud. Proc. Code Ann. § 3-904(a) (1984). However, such action must "be filed within three years after the death of the injured person." Id. at § 3-904(g). George Knauer died on May 1, 1982. Ann Knauer did not move to add a wrongful death claim until May 6, 1985, three years and five days after her husband's death. Thus, Ann Knauer's death claim, on its face, was not timely filed unless it is saved by principles of either relation back or tolling.

Pursuant to Fed. R.Civ. P. 15(c), "whenever the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."

Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitation are intended to afford. Thus, if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged ... will relate back even though the statute of limitations has run in the interim.

3 J. Moore, Moore's Federal Practice ¶ 15.133, at 15-194 to -196 (1984) (footnotes omitted) (hereinafter 3 Moore's Federal Practice).

In the usual statute of limitations case, "the matter of relation back of amendments to pleadings is properly one of federal practice under Rule 15(c) and ... no warrant exists for resort to state law." Id. at 15-190. Rule 15(c), however, can present a federal court with "a classic Erie choice of law problem...." Davis v. Piper Aircraft Corp., 615 F.2d 606, 610 (4th Cir.), cert. dismissed, 448 U.S. 911, 101 S.Ct. 25, 65 L.Ed.2d 1141 (1980).⁶

In Davis, the personal representative of two decedents who died in a plane crash instituted suits in the state courts of Alabama against, inter alia, the airplane manufacturer. Judgment was obtained in one of these cases and a settlement was reached in the other. The executor, appointed by an Alabama probate court, of a third victim of the same crash, instituted suit in a North Carolina federal district court "five days prior to the running of the applicable North Carolina two-year statute of limitation...." Id. at 609. North Carolina law required that a wrongful death action be instituted by the ancillary administrator of the estate of the decedent, appointed by a North Carolina state court. At the time the North Carolina suit was instituted, the plaintiff-executor was not qualified as a North Carolina ancillary administrator. Id. at 610. Four months after the defendant filed its answer, the plaintiff sought to amend the complaint to reflect his then existing capacity as a qualified ancillary administrator. Id. at 609. Writing for Judge Widener and himself, with Judge Hall dissenting, Judge Phillips determined initially that North Carolina law "has considered amendments reflecting legal capacity acquired after filing of an original pleading to fall in the category of entirely new causes of action, hence to preclude their allowance when this would defeat the limitations bar," id. at 610 (citations omitted), and that under that North Carolina standard, a "plaintiff's lack of capacity at the time of filing the original pleading prevented the statement of a cause of action at that time; that consequently the action was a nullity and provided nothing to which an amended pleading could be deemed to relate." Id. at 611 n. 7 (citation omitted). Contrasting the North Carolina approach with federal practice, Judge Phillips concluded that "the longstanding weight of federal authority would give relation back effect to amendments changing capacity." Id. at 610. In reaching that view, Judge Phillips looked specifically to similar cases decided under Federal Rule 15(c), id. at 610-11, and noted that under federal law, failure to state a claim in the original complaint is not an "impediment to the later allowance of an amendment having relation back effect...." Id. at 611 n. 8.

In addressing the conflict between state and federal law, Judge Phillips considered the teachings of Erie⁷ and certain of its progeny,⁸ including Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), and wrote that "Hanna generally commands application of Fed.R.Civ.P. 15(c) in the face of a contrary state rule, and specifically commands its application here," id. at 611, reasoning that,

as in Hanna, the federal rule in question is quite as broad in scope as the conflicting state rule.... That being so, Hanna commands that unless Rule 15(c) is invalid because violative of the Rules Enabling Act, 28 U.S.C. § 2072 or the Constitution, ... it controls decision without regard to any contrary state rule.

Id. at 611-12 (footnote omitted) (citations omitted).

Judge Phillips also wrote that if Rule 15(c) were not

sufficiently broad in scope completely to cover the ground occupied by the state rule .... Hanna teaches that the choice between the two rules should not be made on a talismanic analysis of the outcome determination factor alone, but instead by consideration of the compatibility of the choice with Erie's twin aims: "discouragement of forum shopping and avoidance of inequitable administration of the laws." Hanna 380 U.S. at 468 85 S.Ct. at 1142....

Id. at 612. Concluding that neither goal was offended in Davis by the application of Rule 15(c), Judge Phillips held that the amended complaint would be deemed to relate back to the original complaint and thus would escape the bar of limitations. Id. at 612.

B. Relation Back — Condition Precedent

If Maryland's Wrongful Death Act's three-year requirement is a statutory limitations provision, then Judge Phillips' Erie analysis in Davis is...