Simpson v. Moore, 156

CourtCourt of Appeals of Maryland
Citation592 A.2d 1090,323 Md. 215
Docket NumberNo. 156,156
PartiesRobert J. SIMPSON v. Gary E. MOORE et al. ,
Decision Date01 September 1989

Page 215

323 Md. 215
592 A.2d 1090
Gary E. MOORE et al.
No. 156, Sept. Term, 1989.
Court of Appeals of Maryland.
July 23, 1991.
Motion for Reconsideration Denied Sept. 6, 1991.

Page 216

Joseph M. Mott (Miles & Stockbridge, on brief), Rockville, for appellant.

Carolyn A. Quattrocki, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Millicent Edwards Gordon, Asst. Atty. Gen., Baltimore, MD and Mark H. Bowen, Staff Atty., Maryland State Police of Pikesville), all on brief, for appellee.

Page 217


[592 A.2d 1091] McAULIFFE, Judge.

Trooper Carey S. Poetzman was killed in the crash of a Maryland State Police helicopter on 19 January 1986. On 17 January 1989, her surviving spouse, Robert J. Simpson (plaintiff), after first obtaining an award for workers' compensation benefits, brought this action for wrongful death and survivor's benefits. The plaintiff contends the accident resulted from the negligence of two of the decedent's co-employees, and that either they, or the State of Maryland as their employer, should respond in damages.

Plaintiff contends the State has waived its sovereign immunity pursuant to the Maryland Tort Claims Act (MTCA), §§ 12-101 through 12-110 of the State Government Article, Maryland Code (1984, 1986 Cum.Supp.). The defendants moved to dismiss the complaint. The individual defendants each claim immunity pursuant to § 12-105 of the MTCA. The State concedes it has waived sovereign immunity by the enactment of the MTCA, but argues: (1) the plaintiff's action is barred because the plaintiff failed to file a claim with the State Treasurer, or the State Treasurer's designee, within 180 days after the accident, thereby failing to satisfy a condition precedent to recovery established by § 12-106 of the MTCA; and (2) in any event the State is entitled to the immunity granted an employer which has provided workers' compensation benefits, Art. 101, § 15, Maryland Code (1957, 1985 Repl.Vol.).

Page 218

Judge Thomas Ward of the Circuit Court for Baltimore City granted the defendants' motion. Plaintiff appealed to the Court of Special Appeals, and we issued a writ of certiorari before consideration of the case by that court. We now affirm.


We first consider the dismissal of the action against the State. The State's sovereign immunity from tort actions has been substantially waived by the enactment of the MTCA. Originally enacted by Chapter 298 of the Acts of 1981, the MTCA provided for a limited waiver of sovereign immunity, but only as to certain specified tort actions. The MTCA was significantly amended, and the scope of waiver of immunity substantially enlarged, by Senate Bill 380, enacted as Chapter 538 of the Acts of 1985. Our determination of this action against the State turns upon the proper interpretation of the 1985 statutory amendment, and thus the intent of the legislature in enacting it.

Prior to the 1985 amendment, 1 the MTCA provided for a limited waiver of "the immunity of the State, of its units, and of State personnel, who are acting in official capacities" as to certain tort actions. See Kee v. State Highway Admin., 313 Md. 445, 448-49, 545 A.2d 1312 (1988); Gardner v. State, 77 Md.App. 237, 239, 549 A.2d 1171 (1988). Although the State personnel who caused the harm could be sued, joinder of the State was required if the plaintiff alleged a "tortious act or omission within the scope of the public duties of the State personnel." Section 12-107 (1984). Section 12-107(d) at that time also provided that:

(1) Any State personnel who acts within the scope of the State personnel's public duties and without malice and

Page 219

gross negligence is not liable as an individual for any damages that result from tortious conduct for which immunity is waived under this subtitle, including damages that exceed the limitations on the State's waiver of immunity.

(2) A judgment in tort for money damages obtained under this subtitle against State personnel, in the State personnel's official capacity, is a judgment against the State only and may not be executed against the State personnel individually.

Prior to the 1985 amendment, the MTCA also required, as a condition precedent to the initiation of an action under the Act, that the claimant submit a written claim to [592 A.2d 1092] the State Treasurer or designee and that the claim be finally rejected. Section 12-105 (1984). A claim could be filed at any time within the period of limitations applicable to the tort alleged, and the filing of the claim tolled the running of limitations until sixty days after a final denial of the claim. Section 12-107(a) (1984). A final denial consisted of an actual denial sent by the Treasurer or designee, or "at the option of the claimant, if the Treasurer or designee fails to give the claimant notice of a final decision within 6 months after the filing of the claim." Section 12-106(d) (1984).

A significant change effected by the 1985 amendment was the expansion of the limited waiver of sovereign immunity from a specific list of tort actions to tort actions generally. The 1985 amendment also deleted all reference to judgments against State personnel. 2 Additionally, by a change that is at the heart of the controversy here, the

Page 220

General Assembly imposed a 180-day limitation upon the filing of a claim, and re-structured the limitations provisions. As amended, § 12-106 now provides:

(a) Scope of section.--This section does not apply to a claim that is asserted by cross-claim or counterclaim.

(b) Claim and denial required.--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 180 days 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 1 year after the claim is denied finally or 3 years after the cause of action arises, whichever is later.

The State argues the 180-day filing requirement of § 12-106 is "jurisdictional" and plaintiff's action was properly dismissed because the claim was not timely filed. The plaintiff, although conceding that the literal language of § 12-106 creates a condition precedent with which he has not complied, contends that the legislature intended to engraft upon the MTCA a notice provision identical to § 5-306 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 1984 Repl.Vol.). If, he argues, § 12-106 is "interpreted" to include all of the provisions that were contained in § 5-306 of the Courts Article, he will be able to qualify under the "good cause" and "absence of prejudice" criteria established by § 5-306(c) for waiver of the notice requirement.

The plaintiff contends the legislature intended to incorporate within the MTCA the 180-day notice provision which then applied to claims for unliquidated damages made against a county or a municipal corporation. This provision,

Page 221

codified at § 5-306 of the Courts Article, 3 provided in pertinent part:

(a) Notice required; time for giving notice.--Except as provided in subsection (c) of this section, no action for unliquidated damages for an injury to a person or his property may be brought against a county or municipal corporation unless the notice of the claim required by this section is given within 180 days after the injury.

* * * * * *

(c) Entertainment of suit in absence of notice.--Notwithstanding the other provisions of this section, the court may, [592 A.2d 1093] upon motion and for good cause shown, entertain the suit even though the required notice was not given, unless the defendant can affirmatively show that its defense has been prejudiced thereby.

In support of his contention, the plaintiff points to an "explanation of proposed changes" included in an initial draft of what was to become Senate Bill 380, and to portions of a summary of a Report of the Senate Committee on Judicial Proceedings concerning Senate Bill 380. The "explanation" appeared at the end of proposed § 12-106, which inserted for the first time the requirement that a claim be filed within 180 days. It stated:

In subsection (b)(1) of this section, language is added to require notice of the claim within 180 days after the injury occurs. This period is comparable to the 180-day period specified in CJ § 5-306(a) for claims against a county or municipal corporation.

The portions of the Committee Report relied on by the plaintiff state:

This bill is intended to broaden the State's tort liability and make several specific changes with respect to the State's immunity from tort damages.

* * * * * *

Page 222

This amendment also inserts language requiring that notice of a written claim submitted to the State Treasurer must be submitted within 180 days after injury to property or person, and eliminates the requirement to include medical expenses or special damages in ones claim for damages.

Summary of Committee Report for S.B. 380, Senate Committee on Judicial Proceedings, March 15, 1985. Plaintiff also points to § 12-102 of the MTCA, which provides that "[t]his subtitle shall be construed broadly, to ensure that injured parties have a remedy." Finally, plaintiff argues that a literal reading of the statute would render a part of § 12-106(b)(3) meaningless.

From all of this, says the plaintiff, it must be obvious that the legislature (1) intended to incorporate a notice provision without disturbing the existing requirement of an administrative claim at some point within the applicable statute of limitations, and (2) intended to incorporate the 180-day notice provision then found in § 5-306 of the Courts Article, including the provisions of this section relating to the waiver of notice requirement upon a showing of good cause and in the absence of a showing of prejudice.


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