Zitomer v. Slate

• Citation: 21 Md.App. 709,321 A.2d 328
• Decision Date: 27 June 1974
• Docket Number: No. 673,673
• Parties: Benjamin ZITOMER et al. v. Herman I. SLATE et al.
• Court: Court of Special Appeals of Maryland

Page 709

21 Md.App. 709

321 A.2d 328

Benjamin ZITOMER et al. v. Herman I. SLATE et al.

No. 673.

Court of Special Appeals of Maryland.

June 27, 1974.

James D. Newton, Silver Spring, with whom was William F. Hickey, Silver Spring, on the brief, for appellants.

William A. Ehrmantraut, Rockville, with whom were Joseph Montedonico, Donahue & Ehrmantraut, Rockville, on the brief for appellee, Leland Memorial Hospital, Inc.

Thomas J. Scanlon, Mount Rainier, for appellee, Herman I. Slate.

Before POWERS, DAVIDSON and MOORE, JJ.

MOORE, Judge.

Appellants are the surviving husband and children of Ruth Miriam Zitomer who died on November 6, 1969 as a result of the alleged malpractice of her doctor and of the hospital where she was treated for injuries sustained in an automobile accident.

On the date of her demise, a two-year period of limitations was applicable to actions for wrongful death under the then existing provisions of Code, Art. 67, § 4. Accordingly, the action would then have been barred as of November 6, 1971. A two-count declaration for wrongful death was filed in the Circuit Court for Prince George's County on July 13, 1972, approximately 2 3/4 years after Mrs. Zitomer died. Effective on July 1, 1971, however, the General Assembly of Maryland had enlarged the period of limitations to three years. ¹ Therefore, if this amendment was applicable, the declaration was timely.

The 1971 amendment contained a separate section providing that the new three year period of limitations contained in the first section 'shall be applied prospectively and retrospectively to have effect upon or application to any cause of action arising prior to July 1, 1968.' The latter section was held unconstitutional by the Court of Appeals of Maryland on June 13, 1972 in Smith v. Westinghouse Electric Corp., 266 Md. 52, 291 A.2d 452.

Essentially upon the authority of Westinghouse and of the decision of the court of Appeals in Blocher v. Harlow, 268 Md. 571, 303 A.2d 395, decided April 11, 1973, the lower court granted appellees-defendants' motions for summary judgment, holding that the three year statute of limitations was unavailing and that the cause of action was barred by the two year period of limitations effective on November 6, 1969, the date of death. ²

On this appeal from those judgments, we are confronted with two fundamental issues:

(1) Does the General Assembly of Maryland have the power to enact a statute enlarging the period of limitations as to a cause of action for wrongful death not barred by the original limitation period, namely, the period of limitation in effect when the cause of action arose?

(2) If such power exists, did the Legislature intend in the instant case to apply the new three year period to a cause of action in existence but not barred as of the effective date of the amendment, namely, July 1, 1971?

For the reasons hereinafter stated, we conclude that these questions must be answered in the affirmative and that the judgments below must be reversed and the cause remanded for further proceedings.

I

Effective July 1, 1971 the General Assembly, by Ch. 784, Laws of 1971, repealed and re-enacted with amendments, subsection (a) of Art. 67, § 4, 'Action for wrongful death,' to read in pertinent part: '. . . provided . . . that every such action shall be commenced within three years after the death of the deceased person.' ³ The purpose of the enactment, as stated in the preamble, was as follows:

'WHEAREAS, the General Assembly desires to bring the statute of limitations for wrongful death actions in uniformity with that of other negligence actions.

'WHEREAS, there is no logical reason for the variance between the time limits for commencement of actions.

'WHEREAS, citizens may be misled to their detriment by the variance between the respective statutes of limitations resulting in an undue forfeiture of rights.'

Section 2 of Ch. 784, as enacted, read as follows:

'And be it further enacted, That the provisions of this Act shall be applied prospectively and retrospectively to have effect upon or application to any cause of action arising prior to July 1, 1968.'

In an official opinion to the Governor dated May 18, 1971, the Attorney General of Maryland expressed the view that the enactment was constitutional for causes of action arising on and after July 1, 1971, 'and causes of action upon which the existing two-year statute of limitations has not expired as of July 1, 1971.' (Emphasis added.) 56 Op.Atty.Gen. 222. ⁴ It is clear, of course, that the 3-year provision is applicable to causes of action arising after July 1, 1971. Appellees vigorously contend, however, that the Legislature was without the power to enlarge the period of limitations for causes of action not barred by the 2-year period of limitations as of July 1, 1971 (even assuming a legislative intent to accomplish that purpose).

Judicial rules formulated as an aid in the determination of whether a statute is to be applied retrospectively or prospectively were collated by Judge Hammond (later Chief Judge) in Janda v. General Motors Corporation, 237 Md. 161, 205 A.2d 228 (1964). Particularly apposite here is the third rule, to the following effect:

'(3) A statute, even if the Legislature so intended, will not be applied retrospectively to divest or adversely affect vested rights, to impair the obligation of contracts, or so as to violate the due process clause, or to operate as a bill of attainder or an ex post facto law. Aside from the disinclination of legislative bodies and courts to make a law operate on past events or transactions, the limitations on retroactive laws are only those which affect all legislation and, if the Legislature intends a law affecting substantive matters to operate retrospectively and the law does not offend constitutional limitations or restrictions, it will be given the effect intended.' (Emphasis added.)

Does a defendant possess, as a general proposition, a vested right in a statute of limitations at the time the cause of action against him arises? Plainly not. It is settled that no such right vests nor has a person any vested right in the running of a statute of limitations unless it has completely run and barred the action. The rationale here is that the statute operates on the remedy directly only and does not extinguish the substantive right. ⁵ 51 Am.Jur.2d, §§ 22, 28.

The cases frequently recognize a distinction, however, between 'pure statutes of limitation' and a limitation qualifying a statutory right in which time is made an integral part of the right created, so that there is no right of action independent of the limitation and the expiration of the time limitation extinguishes the right. See, for a general discussion, Wisbey v. American Community Stores Corporation, 288 F.Supp. 728 (D.C.D.Neb.1968). To such situation, the rules governing pure statutes of limitation may not be applicable.

It is firmly established in Maryland that the wrongful death statute creates a new liability not existing at common law and that, accordingly, compliance with the statute of limitations for such actions is a condition precedent to the right to maintain the action, the limitation of the remedy being treated as a limitation of the substantive right. State, Use of Stasciewicz v. Parks, 148 Md. 477, 129 A. 793 (1925); State, Use of Dunnigan v. Coburn, 171 Md. 23, 187 A. 881 (1936); Smith v. Westinghouse Electric Corporation, 266 Md. 52, 291 A.2d 452, supra. The question we face, therefore, is whether the rule governing 'pure statutes of limitations,' namely, that a person has no vested right in the running of a statute of limitations if it has not completely run and barred the action, is applicable to the statute of limitation here involved. Otherwise stated, our inquiry must be whether, on the contrary, the right of the appellees-defendants here to exemption from liability at the end of the existing period of limitations 'became vested when the wrongful act occurred,' Bretthauer v. Jacobson et al., 79 N.J.Law 223, 75 A. 560 (1910), so that retroactive application of the amendment to the statute of limitations would unconstitutionally 'divest or adversely affect vested rights.'

For guidance as to the applicable rule in Maryland, we are remitted essentially to cases arising under former Code, Art. 93, § 112 (now § 8-103) pertaining to suits against the personal representative 'in any action (except slander) which might have been maintained against the deceased.'

In Chandlee v. Shockley, 219 Md. 493, 153 A.2d 438 (1959), the Court of Appeals was called upon to construe the period of limitations contained in the statute: '. . . provided, however, that any such action for injuries to the person to be maintainable against an executor or administrator must be commenced within six calendar months after the date of the qualification of the executor or administrator of the testator or intestate.' ⁶

Appellant claimed that he had been 'requested and induced' by the authorized representatives and agents of the deceased's administratrix not to file suit and had been lulled 'into a false sense of security in the belief that the said administratrix had waived the benefit of the six (6) months limitation period in cases of this type.' The Court first rejected appellant's claim that Art. 93, § 112 was a 'survival statute' rather than a statute creating a new cause of action and stated that the narrow question for decision was: 'whether there can be waiver or estoppel as to a statute in which the time proviso is part of the right and not merely a limitation of the remedy.' It pointed out that 'most courts have held that if the statute creates a new cause of action with a time limit as a condition precedent, such limit cannot be extended by waiver or estoppel.' Refusing to follow this line of authority as an immutable rule, the Court (Hammond, J., later Chief Judge, writing the opinion) held that the doctrine of waiver or...