Trimper v. Porter-Hayden

Decision Date01 September 1985
Citation501 A.2d 446,305 Md. 31
Parties, 54 USLW 2368, Prod.Liab.Rep. (CCH) P 10,902 Charlotte M. TRIMPER et al. al. Sylvia SANDBERG et al. v.INDUSTRIES, INC. et al. ,
CourtMaryland Court of Appeals

John Amato, IV, John T. Enoch and Goodman, Meagher & Enoch, on brief, Baltimore, for appellant Sylvia Sandberg et al.

William D. Kurtz, Baltimore, for appellant Charlotte M. Trimper et al.

Robert Dale Klein (John S. Bainbridge, Jr., Andrew E. Shipley and Piper & Marbury, on brief), John W. Geldmacher (H. Emslie Parks, Leland S. Van Koten and Wright & Parks, on brief), Baltimore, for appellees.



The question presented in these consolidated appeals is whether wrongful death and survival actions involving exposures to asbestos are time barred when brought more than three years after death or whether some form of discovery rule applies. For reasons hereinafter set forth we shall hold that two separate time bars, each of which began to run at death, had respectively expired prior to suit on these latent disease claims.

One of the plaintiffs below and an appellant here is Charlotte M. Trimper (Charlotte), the widow of Frank R. Trimper (Frank). Charlotte's complaint avers that Frank had been employed from approximately July 1948 until 1978 at the United States Coast Guard Yard in Curtis Bay, Maryland where he was exposed to asbestos and asbestos dust. Frank was hospitalized in January of 1980 and died February 8, 1980, due to a carcinoma allegedly resulting from exposure to asbestos. Charlotte qualified as personal representative of Frank's estate on May 4, 1983, and instituted the subject wrongful death and survival actions on May 24, 1983, more than three years after Frank's death. A statement of the case pursuant to Maryland Rule 1026(e) recites that Frank "was not aware of any association between his asbestos exposure and his illness during his lifetime" and that Charlotte "filed suit within three years of the date on which she was first aware, or reasonably should have been aware, of that association."

Plaintiff and appellant in the other action is Sylvia Sandberg (Sylvia), widow of Louis Sandberg (Louis). Sylvia's complaint avers that Louis had been employed in various capacities and employments in which he was exposed to asbestos from 1942 until 1980. Louis died November 30, 1980, due to a carcinoma allegedly resulting from exposure to asbestos. Sylvia qualified as personal representative of Louis' estate on July 31, 1984. She instituted the subject wrongful death and survival actions on August 10, 1984, more than three years after Louis' death. A Rule 1026(e) statement of the case recites that Louis "was not informed of any association between his asbestos exposure and his illness during his lifetime, and further that [Sylvia] did not know, and could not in the exercise of reasonable diligence have known until March, 1983 of that association."

The Circuit Court for Baltimore City entered judgment in favor of all of the defendants on each claim in both suits, ruling that the claims were time barred. Each widow appealed to the Court of Special Appeals where the two appeals were consolidated. Appellants then petitioned this Court for the writ of certiorari, the appellees agreed that we should issue the writ, and we did so prior to consideration of the matter by the intermediate appellate court.

Because different statutes are involved, we consider separately the wrongful death claims and the survival claims. Wrongful death claims are governed by Md.Code (1974 1984 Rep. Vol.), Title 3, Subtitle 9, "Wrongful Death," of the Courts and Judicial Proceedings Article (CJ). Of particular concern here is CJ § 3-904(g), providing that "[a]n action under [the Wrongful Death] subtitle shall be filed within three years after the death of the injured person." Limitations on survival actions, however, are provided by the general statute of limitations, CJ § 5-101. It provides:

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

While §§ 3-904(g) and 5-101 both establish periods of three years, in wrongful death cases the three years measures from death, an objectively determinable event in almost all cases, while in survival actions the three years measures from the date of accrual of the cause of action, a less objectively determinable starting point.


The Maryland wrongful death statute authorizes two classes of persons to bring such an action. Primary beneficiaries are the wife, husband, parent, and child of the deceased person. CJ § 3-904(a). If there are no such persons who qualify, "any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased" may bring a wrongful death action. CJ § 3-904(b). "[D]amages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death." CJ § 3-904(c). Damages awardable to primary beneficiaries are not restricted to pecuniary loss but may include solatium damages. CJ § 3-904(d). Appellants contend that, where the decedent died blamelessly ignorant of being the victim of a tort and where that tort caused death, the eligible beneficiary or beneficiaries should have up to three years from the time when they knew or should have known of the cause of death within which to institute a wrongful death action. In effect, appellants ask that we apply to wrongful death actions the discovery rule laid down in Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978) for determining the commencement of the running of limitations under CJ § 5-101 in latent disease cases.

Harig involved a living plaintiff whose last known exposure to asbestos had been in January of 1955. Shortly after November of 1975 she developed a cough, and on October 27, 1976, she was diagnosed as having a malignant mesothelioma. She instituted suit May 23, 1977. Applying CJ § 5-101 and interpreting the word "accrues" therein, we held that "in situations involving the latent development of disease, a plaintiff's cause of action accrues when he ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of his injury." 284 Md. at 83, 394 A.2d at 306.

We cannot, however, apply the foregoing rationale to the time bar applicable to wrongful death actions. A long line of precedent in this Court and the unambiguous language of CJ § 3-904(g) prevent adopting a discovery rule for such claims.

The rule in Maryland is that, since the wrongful death statute created a new liability not existing at common law, compliance with the period of limitations for such actions is a condition precedent to the right to maintain the action. The period of limitations is part of the substantive right of action.

Slate v. Zitomer, 275 Md. 534, 542, 341 A.2d 789, 794 (1975), cert. denied, 423 U.S. 1076, 96 S.Ct. 862, 47 L.Ed.2d 87 (1976), citing Smith v. Westinghouse Electric Corp., 266 Md. 52, 55-56, 291 A.2d 452, 454 (1972); Dunnigan v. Cobourn, 171 Md. 23, 25-26, 187 A. 881, 884 (1936); and State v. Parks, 148 Md. 477, 479-82, 129 A. 793, 795 (1925). See also Cotham and Maldonado v. Board, 260 Md. 556, 563, 273 A.2d 115, 119 (1971); London Guarantee & Accident Co. v. Balgowan Steamship Co., 161 Md. 145, 157, 155 A. 334, 338 (1931). Thus, were we, by applying a discovery rule, to allow wrongful death actions to be filed more than three years after death, we would be violating the legislatively imposed time limitation on the legislatively created right of action.

The enlargement requested by appellants of the time limitation cannot be accomplished in the guise of statutory construction. In plain words CJ § 3-904(g) provides that a wrongful death action "shall be filed within three years after the death of the injured person." There is no room for judicial interpretation. When the problem presented here has arisen under the wrongful death statutes of other states which measure the time within which suit is to be instituted by a fixed period "after death," the majority of courts hold that the statute leaves no room for judicial adoption of some form of discovery rule. See Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548 (3d Cir.1985) (former Pennsylvania statute); Cadieux v. International Telephone and Telegraph Corp., 593 F.2d 142 (1st Cir.1979) (Rhode Island statute); Bazdar v. Koppers Co., 524 F.Supp. 1194 (N.D.Ohio 1981); Stiles v. Union Carbide Corp., 520 F.Supp. 865 (S.D.Tex.1981); Pollard v. United States, 384 F.Supp. 304 (N.D.Ala.1974); Presslaff v. Robins, 168 N.J.Super. 543, 403 A.2d 939 (1979); Morano v. St. Francis Hospital, 100 Misc.2d 621, 420 N.Y.S.2d 92 (1979); Ness v. St. Aloisius Hospital, 301 N.W.2d 647 (N.D.1981); Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181 (1981) (plurality of three Justices, with two Justices concurring in the result); Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 471 A.2d 1233 (1984).

There are cases to the contrary. Four of them involve the Illinois wrongful death statute which provides that such actions are to be commenced "within 2 years after the death" of the decedent. A district of the Appellate Court of Illinois applied a discovery rule to that statute in an airplane crash case in which the wreckage, and the fact of death, had not been discovered until more than two years after the last radio communication with the plane. The court balanced the difficulty of proof created by the passing of time against the hardship to the plaintiff. Praznik v Sport Aero, Inc., 42 Ill.App.3d 330, 355 N.E.2d 686 (1976). Praznik became part of the authority cited for applying a discovery rule to a wrongful death claim based on alleged...

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