Owens-Illinois, Inc. v. Cook

Citation386 Md. 468,872 A.2d 969
Decision Date26 April 2005
Docket NumberNo. 10,10
PartiesOWENS-ILLINOIS, INC. v. Harry COOK, Sr., et al.
CourtCourt of Appeals of Maryland

Robert H. Riley (Schiff, Harden & Waite, Chicago, IL, Gerry H. Tostanoski, Scott Patrick Burns, Dana A. Gausepohl, Tydings & Rosenberg, LLP, Baltimore, on brief), for petitioner/cross-respondent.

Edward J. Lilly (Scott Shellenberger, Law Offices of Peter G. Angelos, Baltimore, on brief), for respondents/cross-petitioner.



Having granted the petition, filed by the petitioner, Owens-Illinois, and the cross-petition, see Owens-Illinois v. Cook, 374 Md. 82, 821 A.2d 370 (2003), filed by the respondents, John A. and Shirley Gianotti, for writ of certiorari,2 this Court must decide four issues: whether, under the parties' 1994 settlement agreement, pursuant to which the respondents signed a release reserving their claims for certain "future disease[s]," in an asbestos-related personal injury case, Maryland's statutory cap on non-economic damages, Md.Code (1974, 2002 Rep. Vol.) § 11-108 of the Courts and Judicial Proceedings Article (hereinafter "Statutory Cap"),3 applied to bar the respondents' claim for mesothelioma and loss of consortium; when, in a latent disease case, a loss of consortium case arises for purposes of the "cap" statute; whether, in light of our decisions in John Crane, Inc. v. Scribner, 369 Md. 369, 372, 800 A.2d 727, 728 (2002) and Georgia-Pacific Corp. v. Pransky, 369 Md. 360, 363, 800 A.2d 722, 723 (2002), the respondents' loss of consortium claim, based on an injury incurred before they married, is barred as a matter of law and whether the judgment for the respondents was properly reduced pursuant to Maryland Code (1997, 2001 Rep. Vol.) § 3-1401 et. seq. of the Courts and Judicial Proceedings Article, the Uniform Contribution Among Tortfeasors Act ("UCATA"), based on a default judgment entered against a third party defendant, (Babcock & Wilcox), in Porter Hayden Co. v. Bullinger, 350 Md. 452, 713 A.2d 962 (1998), an asbestos case, who is also a third party defendant in the case sub judice and where there was, in the case sub judice, no finding that the defaulting party was a joint tortfeasor. We shall affirm.


The facts pertinent to the resolution of this appeal, stated in the light most favorable to the respondents, the prevailing parties on liability at trial, see Board of County Com'rs of Garrett County, Md. v. Bell Atlantic-Maryland, Inc., 346 Md. 160, 182, 695 A.2d 171, 182 (1997); Burroughs Intern. Co. v. Datronics Engineers, Inc., 254 Md. 327, 337-338, 255 A.2d 341, 346 (1969); Goodwin v. Lumbermens Mutual Cas. Co., 199 Md. 121, 129-30, 85 A.2d 759, 762-63 (1952), can be summarized quickly and simply. John Gianotti was exposed to asbestos between 1956 and 1974, while employed as a laborer and ceiling installer. In August 1985, he was diagnosed with "asbestos lung disease." Ten months after that diagnosis, and just short of a month before § 11-108 became effective, see Acts 1986, ch. 639, effective July 1, 1986, Mr. Gianotti and the respondent Shirley Gianotti were married. The following year, the respondents filed suit against various manufacturers and suppliers of asbestos containing products, including the petitioner, alleging both that Mr. Gianotti suffered "asbestos lung disease" as a result of exposure to their products and, as a result of that disease, loss of consortium. The petitioner and the respondents entered into a settlement agreement with respect to that suit in 1994.4 As required by the settlement agreement, the respondents executed a "Release and Settlement of Claim," in which they released the petitioner from the claim that John Gianotti "[h]as contracted the disease known as asbestosis."

The release also provided:

"It is the specific intent of this release to release and discharge [Owens-Illinois] for any and all further claims relating to the matters for which recovery was sought in the Circuit Court for Baltimore County, Case Number 87CG3549/45/19, including any and all claims made in the Complaint, Answers to Interrogatories, depositions, reports of medical experts prepared at the request of me/us and/or my/our attorneys, and opinions rendered concerning the condition of JOHN GIANOTTI by experts retained by me/us and/or my/our attorneys, regardless of the future progression or course of the medical conditions alleged to exist therein, including death resulting from that/those conditions (all such claims are hereinafter referred to as the `existing lawsuit')."

The preceding paragraph was further clarified by inclusion of an exception which expressly limited its effect:

"[i]t is not the intent of this release, and I/we specifically do not release claims for cancer, mesothelioma and or other malignancies or death resulting from cancer, mesothelioma or other malignancies not alleged or described in the existing lawsuit allegedly resulting or to result from JOHN GIONOTTI'S exposure to asbestos (hereinafter described as `future disease')."

The respondents also acknowledged in the release that:

"[Owens-Illinois], by making payment herein and agreeing to the form and content of this Release, [is] likewise not admitting or conceding any liability for any future disease that may occur, nor [is it] estopped in the future on any grounds to contest [its] liability therefor[ ], and neither settlement, payment nor existence of this release may be used against [Owens-Illinois] in any way to attempt to prove liability or fault for any future disease."

In March 1999, more than four years after executing the release, Mr. Gianotti was diagnosed with mesothelioma.5 The respondents thereafter sought recovery for this injury and the accompanying loss of consortium from the asbestos manufacturers, suppliers and installers they previously had sued for asbestos lung disease. They did not file a new lawsuit, however; rather, the mesothelioma claim proceeded under the short form complaint filed in 1987, which incorporated, by reference, allegations in a master complaint for unspecified "asbestos-related diseases," filed by their attorney.

Before trial, the petitioner challenged the viability of John Gianotti's mesothelioma claim and, therefore, the respondents' loss of consortium claim through a counterclaim for declaratory judgment. In that pleading, it claimed that, under the release executed by the respondents, the mesothelioma was either a "future disease" and, therefore, subject to the cap on noneconomic damages, or an existing "asbestos-related disease" and, thus, released by the express terms of the parties' settlement agreement. The trial court disagreed and, on motion of the respondents, dismissed the counterclaim. It reasoned:

"I think [`future disease'] is a term of art. [The release document] says hereinafter referred to—described, hereinafter described as future disease, and future disease is in quotation marks.
"So it's a term that's being used to talk about what will happen if there is a claim later for some form of cancer.
"The Fact that [the release document says] future disease I don't think this is a future disease without the quotation marks.
"It means at the time that this release was entered into, he hadn't been diagnosed with such a disease, but it doesn't mean that he didn't have it.
"The question of whether this is a true, future disease, that is without the quotation marks, is really one that's going to depend on the proof that's given at trial.
"It may well be a nonquotation mark future disease and the cap will apply. That's going to be up to a jury to decide based on the evidence that's presented at the time.
"The Court will not apply and I don't think it is right to apply the cap based on the release and based on the information that I have now.
"The defense is asking the Court to apply the cap based solely on the fact that the release refers to something as a future disease. I will not do that."[6]

The court thus adopted the respondents' argument that in using the term, "future disease," the parties were adopting a term of art, or convenient way to say, "undiagnosed disease." After trial, the case was presented to the jury, which returned, inter alia, verdicts in favor of the respondents against the petitioner, for the personal injury to Mr. Gianotti and for the joint loss of consortium claim. Following post trial proceedings, including the denial of the petitioner's motion for judgment notwithstanding the verdict, judgment was entered. The jury's verdicts for the respondents were reduced by pro rata releases of adjudicated joint tortfeasors, as well as by a default judgment, entered in favor of the petitioner, against Babcock & Wilcox, an asbestos manufacturer, who also was a third party defendant in the case.

Owens-Illinois noted an appeal to the Court of Special Appeals presenting, in addition to the issues raised in this Court,7 issues relating to the sufficiency of the respondents' proof as to when their claims arose. That court rejected all of the petitioner's arguments. Owens-Illinois v. Gianotti, 148 Md.App. 457, 813 A.2d 280 (2002).

The latter issues, the intermediate appellate court concluded, were resolved by Scribner, supra,8 decided by this Court after oral argument in that court. Thus, it held:

"Although the jury in the case at hand decided that Mr. Gianotti was injured prior to July 1, 1986, it was unnecessary for the jury to even consider that issue because it was undisputed that the last date of asbestos exposure of Mr. Gianotti was before July 1, 1986. Applying the dictates of the Scribner case to the facts of this case, the plaintiffs met their burden of proof as to the cap issue. No evidentiary ruling concerning expert testimony as it related to the issue of when the worker's injury arose could possibly have prejudiced Owens-Illinois because, under Scribner, the cap statute

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