Wallace v. Carter

Decision Date02 May 2013
Docket NumberSept. Term, 2011.,No. 2018,2018
Citation65 A.3d 749,211 Md.App. 488
PartiesTHE WALLACE & GALE ASBESTOS SETTLEMENT TRUST v. Sonia CARTER, et al.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

Mitchell Y. Mirviss, (Venable, LLP, David S. Gray, Baltimore, MD, Theodore F. Roberts, Brian A. Zemil, Towson, MD), on brief, for Appellant.

Michael T. Edmonds, (Timothy J. Hogan, Law Office of Peter T. Nicholl, on the brief), Baltimore, MD, for Appellee.

Panel: GRAEFF, KEHOE, WATTS, JJ.

WATTS, J.

Appellant, the Wallace & Gale Settlement Trust, appeals verdicts rendered against it by a jury sitting in the Circuit Court for Baltimore City, as to claims of survival and wrongful death in four cases consolidated for trial, in favor of: (1) in the Carter case, plaintiffs, Sonia Carter and the Estate of Rufus Carter, and use plaintiffs, Rufus Carter, Jr., Kenneth Carter, and Natasha Sloan; (2) in the James case, plaintiff, the Estate of Levester James, and use plaintiffs, Katherine James, Monica James, and Kevin James; (3) in the Lawrence case, plaintiffs, Bernice Lawrence and the Estate of Mayso Lawrence, Sr., and use plaintiffs, Elaine McPherson, Mayso Lawrence, Jr., Phaedra Bailey, Tyrone Lawrence, Cephus Lawrence, Sean Lawrence, and Tanesha Lawrence; and (4) in the Hewitt case, plaintiffs, Annette Hewitt, Roger Hewitt, Jr., and the Estate of Roger Hewitt, and use plaintiffs, Idalyn Williams and Penny Hewitt.1 Following trial, appellant moved for judgment notwithstanding the verdict or for remittitur or new trial, which the circuit court denied.

Appellant noted an appeal raising three issues, which we quote:

I. Did the circuit court err in allowing substantial damage awards to fifteen “use plaintiffs who never joined any case prior to verdict?

II. Did the circuit court err in the Hewitt case by rejecting allocation of damages according to the respective harm caused by smoking and exposure to asbestos?

III. Did the circuit court err in instructing the jury that suppliers and installers have a duty to inspect, analyze, and test any product that they supply or install?

For the reasons set forth below, we answer questions I and II in the affirmative and question III in the negative. We, therefore, reverse and vacate the judgments entered against appellant in favor of the use plaintiffs, concluding that the statute of limitations now bars the use plaintiffs from bringing wrongful death claims. As to the Hewitt case, we reverse the judgments entered against appellant in favor of the plaintiffs, and remand for a new trial. We affirm the judgments entered against appellant in favor of the plaintiffs in the Carter case, the James case, and the Lawrence case.

FACTUAL AND PROCEDURAL BACKGROUND
(1) The Parties and Cases
(a) Wallace & Gale, Incorporated (“W & G”)

Established in 1881, W & G was a Baltimore-based insulation and roofing contractor that installed asbestos-containing products for various companies, including Bethlehem Steel and American Smelting & Refining Company (“ASARCO”).

On November 16, 1985, W & G filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. On April 17, 2001, the United States Bankruptcy Court for the District of Maryland entered an order confirming the Fourth Amended Joint Plan of Reorganization under Chapter 11 of the United States Bankruptcy Code, creating appellant, an entity that assumed W & G's liabilities resulting from asbestos claims.

On November 2, 2010, the United States Bankruptcy Court for the District of Maryland approved the “Second Amended and Restated Asbestos BI Claims Resolutions Procedures.” Section 5.4(b) of the Procedures provided for the tolling of the statute of limitations applicable to claims against appellant. Pursuant to Section 5.4(b), claims accruing after the petition date, November 16, 1985, and prior to the implementation date, August 26, 2009, were required to be brought against appellant before: (1) the expiration of the ninety-day period immediately following the date that the Claims Materials were made publicly available to claimants, September 28, 2010, or (2) the expiration of the statute of limitations applicable to the claim, whichever was later.

(b) The James Case

On January 5, 2007, Willean Peoples (“Peoples”), Levester James's (“James”) stepdaughter, as personal representative of James's estate, filed a short form asbestos complaint against numerous defendants, including appellant, containing counts of negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. Peoples alleged that James had been employed as a laborer at ASARCO from 1968 to 1972, and that, on July 4, 2004, James died from lung cancer. The case caption on the short form complaint identified the following use plaintiffs: Katherine, James's surviving spouse, Kevin, James's surviving son, and Monica, James's surviving daughter.

(c) The Lawrence Case

On February 21, 2008, Arthur L. Drager (“Drager”), as personal representative of Mayso A. Lawrence, Sr.'s (“Lawrence”) estate and Bernice, as Lawrence's surviving spouse, filed a short form asbestos complaint against numerous defendants, including appellant, containing counts for negligence (survival), strict liability (survival), conspiracy, fraud, and wrongful death. The complaint alleged that Lawrence worked as a laborer at ASARCO from 1968 to 1969, and as a laborer and machine operator at Bethlehem Steel from 1970 to “later into the” 1970s. On October 8, 2007, Lawrence died from lung cancer. The case caption on the short form complaint listed the following use plaintiffs: Elaine, Mayso Jr., Tyrone, Phaedra, Cephus, Sean, and Tanesha, Lawrence's four sons and three daughters.

(d) The Carter Case

On February 17, 2006, Johanna Carter, as personal representative for Rufus E. Carter's (“Carter”) estate, and Sonia, as Carter's surviving daughter, filed an amended short form complaint against numerous defendants including appellant, incorporating the counts set forth in the original complaint—loss of consortium, negligence (survival), strict liability (survival), conspiracy, and fraud, and adding a count alleging wrongfuldeath. Johanna alleged that Carter had been employed as a laborer and crane operator at ASARCO from 1966 to 1975. On November 6, 2003, Carter died from lung cancer. The case caption on the amended short form complaint listed the following use plaintiffs: Kenneth and Rufus Jr., Carter's sons, and Natasha, Carter's daughter.

On March 7, 2006, Sonia filed a Notice to Substitute Parties, advising that Johanna had been removed as the personal representative of Carter's estate and that Sonia had been appointed as successor personal representative of Carter's estate. Sonia notified the circuit court and the parties that she, as successor personal representative, was substituted as the party plaintiff in the survival action.

(e) The Hewitt Case

On September 7, 2006, Roger C. Hewitt, Sr. (“Hewitt”) and Annette Hewitt filed a short form asbestos complaint against numerous defendants alleging that Hewitt had been diagnosed with “asbestosis and asbestos-related diseases” in April 2006. Hewitt alleged that he was exposed to asbestos through his work as a laborer, mechanic steamfitter and pipe fitter at the Pennsylvania Railroad from 1943 to 1944, and as a laborer and crane operator at Bethlehem Steel from 1946 to the late 1970s. On January 5, 2007, the plaintiffs filed an Amendment by Interlineation, adding appellant as a defendant. On December 20, 2008, Hewitt died of pneumonia.

On January 23, 2009, Roger Jr. filed a Notice to Substitute Parties, notifying the circuit court and the parties that he, as personal representative of Hewitt's estate, was substituted as a party plaintiff in the survival action. On July 24, 2009, Annette, as surviving spouse of Hewitt, and Roger Jr., as personal representative of Hewitt's estate, filed an amended short form complaint, incorporating the counts set forth in the original complaint-loss of consortium, negligence (survival), strict liability (survival), conspiracy, and fraud, and adding a count alleging wrongful death. The case caption on the amended short form complaint identified the following use plaintiffs: Penny and Idalyn, surviving daughters.

On the same day, July 24, 2009, Roger Jr. filed an Amendment by Interlineation to Add Disease Process, alleging that recent medical records indicated that, in addition to asbestosis, Hewitt had also suffered from lung cancer causally connected to his exposure to asbestos and asbestos products.

(2) Pre–Trial Proceedings

On November 10, 2009, the circuit court consolidated the four cases for trial, scheduled to begin on January 18, 2011.

(a) Answers to Interrogatories

In three of the cases—the James, Lawrence, and Carter cases—personal representatives filed answers to interrogatories, referring to themselves as the singular Plaintiff.”

In the Hewitt case, plaintiff Roger Jr. filed answers to interrogatories. Throughout the answers to interrogatories, Roger Jr. is referred to as the singular Plaintiff.” In one answer, Roger Jr. stated that Hewitt smoked approximately one-half to one pack of cigarettes per day from approximately 1943 to approximately 2008.

(b) Proposed Voir Dire

On December 20, 2010, approximately one month before the start of trial, the plaintiffs filed proposed voir dire. As to plaintiffs, question 2 of the proposed voir dire asked the following:

Is any member of the panel or any member of your immediate family, or close circle of friends related to or otherwise acquainted with the plaintiffs:

Rufus E. Carter Sonia Carter (PR & Child) Johanna Carter (Spouse) Kenneth Carter (Child) Rufus Carter, Jr. (Child) Natasha Sloan (Child)

* * *

Roger C. Hewitt, Sr. Roger C. Hewitt, Jr. (PR & Child) Annette Hewitt (Spouse) Levester James Willean Peoples (PR & Child) Katherine James (Spouse) Monica James (Child) Tony James (Child)

Mayso A. Lawrence, Sr. Arthur L. Drager, Esq. (PR) Bernice Lawrence (Spouse) ...

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5 cases
  • Carter v. Trust
    • United States
    • Maryland Court of Appeals
    • July 21, 2014
    ...the four complaints were amended to add wrongful death counts, the last dates to bring claims under this order were December 28, 2010 in the Carter and James cases, February 21, 2011 in the Lawrence case, and July 24, 2012 in the Hewitt case.The Carter case Carter worked as a laborer and cr......
  • Kegarise v. State
    • United States
    • Court of Special Appeals of Maryland
    • May 2, 2013
  • Carter v. Wallace & Gale Asbestos Settlement Trust
    • United States
    • Court of Special Appeals of Maryland
    • July 21, 2014
    ...the four complaints were amended to add wrongful death counts, the last dates to bring claims under this order were December 28, 2010 in the Carter and James cases, February 21, 2011 in the Lawrence case, and July 24, 2012 in the Hewitt case.The Carter case Carter worked as a laborer and cr......
  • Kulikov v. Baffoe-Harding
    • United States
    • Court of Special Appeals of Maryland
    • November 21, 2013
    ...1112 (2001) (cited with approval in State v. Baby, 404 Md. 220, 246, 946 A.2d 463 (2008)); see also Wallace & Gale Asbestos Settlement Trust v. Carter, 211 Md.App. 488, 526, 65 A.3d 749 (“Well considered dicta, of course, is sometimes very good and, therefore, of significant persuasive weig......
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