Duffy v. CBS Corp.

June Diane Duffy, as Personal Representative of the Estate of James F. Piper v. CBS
Corporation, f/k/a Viacom, Inc., f/k/a Westinghouse Electric Corp., No. 41, September Term,
2017. Opinion by Greene, J.
NEGLIGENCE – STATUTE OF REPOSE – CAUSE OF ACTION ARISES –
EXPOSURE APPROACH TEST
The Court of Appeals held that an injury related to asbestos exposure that underlies a cause
of action for personal injury or wrongful death arises at the time of exposure. The Court held
that the “exposure approach,” as adopted by the Court in John Crane Inc. v. Scribner, 369
Md. 369, 383, 800 A.2d 727, 735 (2002), was applicable to determine if a party’s injuries or
cause of action arose prior to the enactment of the Courts and Judicial Proceedings Article §
5-108, originally enacted as Article 57, § 20.
NEGLIGENCE – STATUTE OF REPOSE – CAUSE OF ACTION ARISES –
PROSPECTIVE APPLICATION
The Court of Appeals held that the Estate’s causes of action were not barred by the statute of
repose because the decedent’s injuries or causes of action arose from his unknowing exposure
to asbestos, between May 3, 1970 and June 28, 1970, a period of time before the statute of
repose was enacted. Further, as a matter of law, the statute of repose does not apply if the
injury or the “last exposure undisputedly was before” the effective date of the Courts and
Judicial Proceedings Article, § 5-108, formerly Article 57, § 20.
Circuit Court for Baltimore City
Case No. 24-X-14-000186
Argued: December 1, 2017 IN THE COURT OF APPEALS
OF MARYLAND
No. 41
September Term, 2017
______________________________________
JUNE DIANE DUFFY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
JAMES F. PIPER
v.
CBS CORPORATION, F/K/A VIACOM, INC.,
F/K/A WESTINGHOUSE ELECTRIC CORP.
Barbera, C.J.
Greene,
McDonald,
Watts,
Hotten,
Getty,
Raker, Irma S. (Senior Judge, Specially
Assigned),
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: March 28, 2018
In this case we must decide whether the statute of repose, presently codified as
Section 5-108 of the Courts and Judicial Proceedings Article of the Maryland Code (1973,
2013 Repl. Vol.) (“CJP § 5-108” or “statute of repose”), bars the causes of action brought
by James F. Piper (“Mr. Piper”), now deceased. After Mr. Piper’s death, and while the
case was pending in the intermediate appellate court, the Register of Wills appointed
Petitioner, June Diane Duffy (“Ms. Duffy” or “the Estate”), Personal Representative of Mr.
Piper’s Estate,1 and she was substituted in place of the decedent as a party to the litigation.2
Ms. Duffy pursues, on behalf of the Estate, Mr. Piper’s causes of action for personal injury
and wrongful death resulting from his undisputed and unknowing exposure to asbestos that
last occurred days before the statute of repose was first enacted in 1970 as Article 57, § 20
in the Maryland Code (1957, 1968 Repl. Vol., 1970 Cum. Supp.). The General Assembly
enacted the statute of repose to provide a temporal limitation to the discovery rule’s3
applicability to causes of action for injuries “arising” from improvements to real property.
Mr. Piper’s causes of action stem from his exposure to asbestos, which led to the
1
The Office of the Register of Wills for Anne Arundel County opened Mr. Piper’s Estate
on June 17, 2016 and appointed Ms. Duffy as Personal Representative of his Estate,
pursuant to Mr. Piper’s will, on the same day. See Estate No. 89818.
2
Pursuant to Md. Rule 2-241, a notice of substitution of party was filed on August 8,
2016.
3
The common law discovery rule is a departure from the general rule that “limitations
against a right or cause of action begin to run from the date of the alleged wrong and not
from the time the wrong is discovered” and permits a plaintiff to bring suit when the
plaintiff “ascertains, or through the exercise of reasonable care and diligence should have
ascertained, the nature and cause of his [or her] injury.” Harig v. Johns-Manville Prods.
Corp.¸ 284 Md. 70, 76, 83, 394 A.2d 299, 303, 306 (1978).
development of mesothelioma, a latent disease.4 Due to the latent effects of asbestos
exposure and, thus, the causes of action at issue, the penultimate question in the case before
us is when do injuries from asbestos exposure “arise” for purposes of the statute of repose.
The answer to that question resolves whether the statute of repose when it was first enacted,
as 1970 Maryland Laws, Chapter 666 (“Ch. 666”), and originally codified as Art. 57, § 20,
bars Petitioner’s claim for injuries that arose prior to the enactment of the statute. To guide
us, we rely on the tenets of statutory construction to determine what the drafters meant by
the term “arise” within the meaning of the statute of repose.
Factual and Procedural Background
The undisputed facts are as follows. Respondent, CBS Corporation, is a Delaware
corporation. It was formerly known as Viacom, Inc., a successor by merger to the CBS
Corp. and also formerly known as Westinghouse Electric Corporation (“Westinghouse”).
At the time of Mr. Piper’s injuries, CBS Corp. was known as Westinghouse. In March
1970, Westinghouse contracted with Potomac Electric Power Company (“Pepco”) to
manufacture, supply, and deliver the components needed to build a Steam Turbine
Generator (“Unit 1”) at Pepco’s Morgantown Generating Station (“Morgantown”).
4
Mesothelioma is “a type of cancer that occurs in the thin layer of tissue that covers the
majority of [the body’s] internal organs (mesothelium). Mesothelioma is an aggressive
and deadly form of cancer.” https://www.mayoclinic.org/diseases-
conditions/mesothelioma/symptoms-causes/syc-20375022 [https://perma.cc/EXG8-
R3TN]. This rare form of cancer mostly affects people who have worked in environments
where they inhaled asbestos. See John Crane, Inc. v. Puller, 169 Md. App. 1, 14, 899 A.2d
879, 903 (2006), cert. denied, 394 Md. 479, 906 A.2d 943 (2006).
2
Westinghouse built the major components of the turbine offsite and constructed the turbine
onsite at Morgantown. Included in the turbine specifications were insulating materials that
contained asbestos. Walter E. Campbell Company (“WECCO”) entered into a subcontract
with Westinghouse to supply and install the insulating materials that Westinghouse
specified for construction of the turbine generator. Westinghouse provided WECCO with
the “Process Specification” for the “Application of Asbestos Compound by Spraying.”
These detailed instructions set forth the placement and method for applying insulation to
the inside surfaces of the steam turbine enclosures.
Mr. Piper worked as a steamfitter at Morgantown. During the construction of the
Unit 1 turbine, Mr. Piper worked on the steam piping that connected the Unit 1 turbine to
another turbine. In his complaint, Mr. Piper alleged that at that time he was unknowingly
exposed to asbestos as a result of WECCO’s installation of the insulating material that
contained asbestos. According to WECCO’s payroll records, the insulation was installed
between May 3, 1970 and June 28, 1970, which made June 28, 1970 the last possible day
of Mr. Piper’s undisputed exposure to the asbestos containing insulation.
Mr. Piper was diagnosed with mesothelioma on or about December 26, 2013. On
March 26, 2014, he filed suit in the Circuit Court for Baltimore City against thirty-three
defendants, including Westinghouse.5 His four-count complaint against the various
5
The named defendants, provided here without change, were: (1) 3M Company, f/k/a
Minnesota Mining & Mfg. Co., n/k/a 3-M Corporation; (2) AC & R Insulation Co., Inc.;
(3) A.O. Smith Corporation; (4) Avco Corporation (for its Spencer-Lycoming Division);
(5) Baltimore Aircoil Company, Inc.; (6) Burnham Corporation; (7) Carrier Corporation;
(8) CBS; (9) Certainteed Corporation, (and as Successor in Interest to Gustin Bacon);
(continued . . .)
3
defendants alleged strict liability, breach of warranty, negligence, and “aiding and abetting
and conspiracy,” which stemmed from his work as a plumber and steamfitter from 1948 to
1990. Specifically, Mr. Piper alleged that in connection with his employment, he used,
worked with, or was exposed to asbestos products that were manufactured, supplied, and/or
installed by the defendants. His complaint further alleged that some of the defendants
failed to warn users that asbestos products contained “harmful, deleterious, carcinogenic
and inherently dangerous asbestos dust and fibers which unreasonably endangered the life
and health of persons using, working with or working around the asbestos products,” and
failed to protect users against these dangers.
At the close of discovery on January 9, 2015, Westinghouse filed a motion for
summary judgment, which Mr. Piper opposed. On March 3, 2015, the Circuit Court held
a hearing on the open motions. Westinghouse argued that Mr. Piper’s causes of action
against the corporation were barred by CJP § 5-108. Specifically, counsel for
(. . . continued)
(10) C.J. Coakley Co., Inc.; (11) Cleaver-Brooks, Inc. (a Division of Aqua-Chem inc.);
(12) Crane Company, Inc. (and as Successor to Pacific Steel Boiler); (13) Crown Cork &
Seal Company, Inc. Successor in Interest to Mundet Cork Corp.; (14) Federated
Development, LLC (as Successor to Pacific Steel Boiler); (15) Georgia-Pacific, LLC f/k/a
Georgia Pacific; (16) Hampshire Industries, Inc. f/k/a John J. Hampshire, Co., Inc.; (17)
Ingersoll-Rand Company; (18) Kaiser Gypsum Company, Inc.; (19) Krafft-Murphy
Company (and as [S]uccessor to National Asbestos Co.); (20) MCIC, Incorporated, f/k/a
McCormick Asbestos Co.; (21) Metropolitan Life Insurance, Co.; (22) Noland Company;
(23) Oakfabco, Inc., f/k/a Kewanee Boiler Corporation; (24) Ric-Wil, Inc.; (25) Sid Harvey
Industries, Inc.; (26) SPX Cooling Technologies, Inc., f/k/a Marley Cooling Tower; (27)
Superior Boiler Works, Inc.; (28) Thos. Somerville Co.; (29) Trane U.S., Inc., as Successor
to and f/k/a American Standard Companies, Inc.; (30) Union Carbide Corporation; (31)
Uniroyal, Inc.; (32) The Walter E. Campbell Company, Inc.; and (33) Weil-McLain, Inc.
4
Westinghouse emphasized that the facts in the instant case were no different than the facts
of Burns v. Betchel Corp., 212 Md. App. 237, 66 A.3d 1187 (2013), where the trial court
granted summary judgment in favor of a similarly situated defendant who successfully
asserted that the statute of repose barred the plaintiff’s claims in that case.6 Westinghouse
also argued that construing CJP § 5-108 as an applicable bar to Mr. Piper’s claims would
not infringe on any rights he possessed in 1970. Westinghouse contended that Mr. Piper
could not have successfully brought a claim against the corporation at the time of his
exposure because the exposure, at that time, had not manifested into a cognizable injury.
In contrast, Mr. Piper maintained that his injury arose at the time of his asbestos
exposure around June 28, 1970. He asserted that John Crane, Inc. v. Scribner, 369 Md.
369, 800 A.2d 700 (2002), was applicable precedent, and that the reasoning in that case
confirmed that his cause of action “arose” on the date of his exposure to asbestos.
Specifically, counsel for Mr. Piper argued that the Scribner analysis was directly applicable
to the facts of this case because in Scribner, the Court of Appeals determined that in an
6
The facts in Burns were somewhat similar to the facts in Mr. Piper’s case because in both
cases the causes of action stemmed from alleged asbestos exposure that occurred during
the construction of improvements to real property. See Burns v. Bechtel Corp., 212 Md.
App. 237, 239, 66 A.3d 1187, 1188 (2013). The critical difference in Burns, however, is
that the Bechtel Corporation did not use the effective date of the statute of repose to support
its assertion that the statute applied, thereby barring Burns’s claims. See id. at 244, 66 A.3d
at 1191. Rather, Bechtel Corp. asserted that it was not in actual possession and control of
the property as “owner, tenant, or otherwise” when Mr. Burns’s exposure occurred or when
his injury was discovered, rendering the exception contained in CJP § 5–108(d)(2)(i)
inapplicable. See id. at 246, 66 A.3d at 1193; see also CJP § 5-108(d)(2)(i) (“This section
does not apply if: (i) the defendant was in actual possession and control of the property as
owner, tenant, or otherwise when the injury occurred[.]”). The trial court agreed, and the
intermediate appellate court affirmed. Id.
5
asbestos-exposure related claim, a cause of action “arises” upon exposure to asbestos.
Additionally, Mr. Piper’s counsel contended that if the exposure predated the enactment of
the statutory cap under § 11-108 of the Courts and Judicial Proceedings Article of the
Maryland Code (1973, 2015 Repl. Vol.) (“CJP § 11-108”), then the statute could not
retroactively apply to an injury or cause of action that “arose” prior to the statute’s
enactment. According to Mr. Piper, the same was true here, such that the statute of repose
could not apply retroactively when his injury, and, thus, his causes of action “arose” prior
to enactment of the statute. Additionally, Mr. Piper relied on Section 2 of Ch. 666, which
states that the statute does not apply to “actions arising on or before June 30, 1970,” to
advance his argument that the statute of repose does not bar his claims.
Westinghouse, in response, contended that this Court’s ruling in Scribner was a
narrow holding that applied only to the statutory cap on noneconomic damages.
Alternatively, counsel for Mr. Piper asserted that subsection (d)(2)(ii) of § 5-108 excluded
Westinghouse on the basis that Westinghouse was a manufacturer7 for purposes of the
statute. Westinghouse responded that it was not a manufacturer of an asbestos-containing
product for purposes of subsection (d)(2)(ii) of § 5-108, and, therefore, the exception did
not apply.
At the close of the hearing, the Circuit Court granted Westinghouse’s motion for
summary judgment and entered an Order on May 14, 2015. Mr. Piper noted a timely appeal
7
Because of our interpretation of the statute of repose’s applicability in this case, the issue
of whether Westinghouse was a manufacturer at the time of Mr. Piper’s alleged exposure
is moot.
6
to the Court of Special Appeals. Pending the appeal, Mr. Piper passed away on June 2,
2016, and Ms. Duffy was appointed Personal Representative of Mr. Piper’s Estate on June
17, 2016.
On May 31, 2017, in a reported opinion, the Court of Special Appeals affirmed the
Circuit Court’s ruling. Duffy v. CBS Corp., 232 Md. App. 602, 161 A.3d 1, cert. granted,
456 Md. 53, 170 A.3d 290 (2017). The intermediate appellate court first considered the
plain meaning of the language of CJP § 5-108(a). Id. at 613, 161 A.3d at 7. By
characterizing Mr. Piper’s injury as the mesothelioma diagnosis, the Court of Special
Appeals concluded that Mr. Piper’s cause of action did not “arise” or “accrue” until 2013.
The intermediate appellate court reasoned that the diagnosis of mesothelioma was outside
of the twenty-year limitations period set forth in the statute of repose beginning with the
operation of the turbine. Id. at 615, 161 A.3d at 8. That court, therefore, concluded that
the plain language of CJP § 5-108 barred Mr. Piper’s claims. Id. at 614, 161 A.3d at 8.
Next, the Court of Special Appeals considered Mr. Piper’s argument that the
uncodified Section 2 of Ch. 666 demonstrated that the statute did not apply to “actions
arising on or before June 30, 1970.” Id. at 616, 161 A.3d at 9. The purpose of CJP § 5-
108, according to the intermediate appellate court, was to “set a time limit after which the
discovery rule could not operate[.]” Id. at 620, 161 A.3d at 11 (quoting Hillard & Bartko
Joint Venture v. Fedco Sys., Inc., 309 Md. 147, 160, 522 A.2d 961, 968 (1987)). With that
purpose in mind, the intermediate appellate court concluded that the word “accruing,” as
7
used in the “purpose paragraph”8 of Ch. 666, and the word “arising,” as used in Section 2
of Ch. 666, must be construed to have the same meaning. Id. The Court of Special Appeals
concluded that interpreting the words “arise” and “accrue” as indistinguishable terms
would avoid any ambiguity or conflict between the statute’s purpose and Section 2 of the
statute. Id. The Court of Special Appeals, however, did not reach the issues of whether
Section 2 of Ch. 666 carried the force of law due to the General Assembly not having
codified that section, whether Scribner’s reasoning was applicable to the statute of repose,
or whether the manufacturer exception contained in CJP § 5-108(d)(2)(ii) applied to
Westinghouse. Id. at 623–24, 161 A.3d at 13.
Ms. Duffy petitioned this court for certiorari, which we granted. Duffy v. CBS
Corp., 456 Md. 53, 170 A.3d 290 (2017). Ms. Duffy posed three questions for our review.9
8
The purpose paragraph is “part of the title that describes in constitutionally acceptable
details what the bill does” and “contain[s] a summary by categories of the changes
proposed.” Department of Legislative Services, Legislative Drafting Manual 2017, at 39
(2016), available at http://dls.maryland.gov/pubs/prod/LegisBillDrafting/Drafting-
Manual.pdf. [https://perma.cc/KR3G-6QEM]. See also Black’s Law Dictionary (7th ed.
1999), at 1250, which defines “purpose clause” as “[a]n introductory clause to a statute
explaining its background and stating the reasons for its enactment.”
9
As presented in Ms. Duffy’s petition, we granted certiorari with respect to the following
questions:
(1) “Did the Court of Special Appeals err in holding that the term ‘arising’
used in Section 2 of the original statute of repose actually means ‘accruing’
in contravention of this Court’s holding in John Crane, Inc. v. Scribner?”;
(2) “Did the Court of Special Appeals err in holding that Westinghouse had
a constitutionally vested right to repose prior to the effective date of the 1991
amendment to the statute which explicitly exempted manufacturers that
caused asbestos injuries or death from the scope of repose?”; and
(continued . . .)
8
Because we answer the first question in the affirmative and hold that the statute of repose
does not apply to this case, we do not address the remaining questions.
Standard of Review
This appeal concerns the Circuit Court’s grant of summary judgment. When we
review a grant of summary judgment we first determine whether there is a genuine dispute
of material fact. Koste v. Town of Oxford, 431 Md. 14, 24–25, 63 A.3d 582, 589 (2013).
If there is no genuine dispute of material fact, then we review the grant of summary
judgment de novo to determine if the hearing judge’s legal conclusions were correct. Id.
at 25, 63 A.3d at 589. Westinghouse and Ms. Duffy agree that the last possible day Mr.
Piper could have been exposed to asbestos was June 28, 1970. The parties’ contentions
rest solely on the legal question of the applicability of CJP § 5-108 to Mr. Piper’s causes
of action. Accordingly, we review the trial court’s decision for legal correctness. See id.
Discussion
Our determination of whether “the Court of Special Appeals err[ed] in holding that
the term ‘arising’ [as] used in Section 2 of the original statute of repose actually means
‘accruing’ in contravention of this Court’s holding in John Crane, Inc. v. Scribner” requires
resolution of two issues. First, in Part I, we determine whether the statute of repose applies
as a bar to recovery for the injuries that Mr. Piper suffered. Specifically, we determine
whether the statute is ambiguous as it relates to when an injury and a cause of action “arise”
(. . . continued)
(3) “As applied, does the Court of Special Appeals’ decision violate Mr.
Piper’s constitutional right to access the courts?”
9
within the meaning of the statute of repose. Second, in Part II, to settle any confusion
created by the intermediate appellate court’s interpretation of the statute, we take this
opportunity to clarify when an asbestos related cause of action “arises” and “accrues”.
Specifically, we consider the applicability of the discovery rule in relation to the
manifestation of a latent disease.
If a statute’s language is clear and unambiguous, the Court ordinarily looks no
further than the statute itself. See Watts v. State, _ Md. _, _ A.3d _ (2018); see also Koste,
431 Md. at 25–26, 63 A.3d at 589. If the language of the statute is clear and remains
consistent with the overall purpose of the statute, then we need not conduct any further
analysis. See Rose v. Fox Pool Corp., 335 Md. 351, 359, 643 A.2d. 906, 910 (1994)
(considering the legislative history of § 5-108 to hold that the statute was applicable to a
cause of action concerning an injury that arose from a latent defect in the construction of a
swimming pool).
I.
A Brief History of CJP § 5-108
We had occasion to discuss CJP § 5-108’s legislative history in Rose, a case
concerning § 5-108’s applicability to a suit for injuries that resulted from a latent defect in
the construction of an in-ground swimming pool. 335 Md. at 370–71, 643 A.2d at 915(1994). After several attempts in the 1967, 1968, and 1969 legislative sessions, the General
Assembly enacted Art. 57, § 20 in 1970 to provide repose to certain classes of defendants
against causes of action brought by plaintiffs who had sustained injuries involving
improvements to real property. Id. at 365, 643 A.2d at 912–13. Art. 57, § 20 provided:
10
No action to recover damages for injury to property real or personal, or for
bodily injury or wrongful death, arising out of the defective and unsafe
condition of an improvement to real property, nor any action for contribution
or indemnity for damages incurred as a result of said injury or death, shall be
brought more than twenty years after the said improvement was substantially
completed. This limitation shall not apply to any action brought against the
person who, at the time the injury was sustained, was in actual possession
and control as owner, tenant, or otherwise of the said improvement. For
purposes of this section, “substantially completed” shall mean when the
entire improvement is first available for its intended use.
Four years later, however, the General Assembly amended Article 57, § 20, as part
of the larger Code revision. The language was changed in CJP § 5-108(a) from “[n]o action
. . . shall be brought” in Art. 57, § 20, to “[e]xcept as provided by this section, no cause of
action for damages accrues . . . .” The revision also added subsection (c), which is now
subsection (e) in the presently codified version. See Rose, 335 Md. at 366, 643 A.2d at
913. This addition provided a description of when a cause of action for wrongful death
accrued under the statute.10 The 1974 revised statute became CJP § 5-108:
10
The Revisor’s Note accompanying the revision of Art. 57, § 20 to CJP § 5-108 in 1974
explained the changes:
This section is new language derived from Article 57, § 20. It is believed
that this is an attempt to relieve builders, contractors, landlords, and realtors
of the risk of latent defects in design, construction, or maintenance of an
improvement to realty manifesting themselves more than 20 years after the
improvement is put in use. The section is drafted in the form of a statute of
limitation, but, in reality, it grants immunity from suit in certain instances.
Literally construed, it would compel a plaintiff injured on the 364th day of
the 19th year after completion to file his suit within one day after the injury
occurred, a perverse result to say the least, which possibly violates equal
protection. Alternatively, the section might allow wrongful death suits to be
commenced 18 years after they would be barred by the regular statute of
limitations.
11
(a) Injury resulting from improvement to realty. — Except as provided by
this section, no cause of action for damages accrues and a person may not
seek contribution or indemnity for damages incurred when wrongful death,
personal injury, or injury to real or personal property resulting from the
defective and unsafe condition of an improvement to real property occurs
more than 20 years after the date the entire improvement first becomes
available for its intended use.
(b) Exception. — This section does not apply if the defendant was in actual
possession and control of the property as owner, tenant, or otherwise when
the injury occurred.
(c) When action accrues. — A cause of action for an injury described in this
section accrues when the injury or damage occurs.
In 1979, the General Assembly added what is currently subsection (b), and amended the
section a year later. Id. at 366, 643 A.2d at 913.11 The General Assembly subsequently
amended the statute in 1991 in response to the multitude of asbestos-related cases being
brought throughout the state, which we discuss in more detail later in this opinion. Id. at
368–70, 643 A.2d at 914–15.12
The section if conceived of as a grant of immunity, avoids these anomalies.
The normal statute of limitations will apply if an actionable injury occurs.
Subsection (c) is drafted so as to avoid affecting the period within which a
wrongful death action may be brought.
11
With the 1979 amendment, what was previously subsection (b) became subsection (c),
and what was previously subsection (c) became subsection (d).
12
The 1991 amendment added what is now subsection (d)(2). Since 1991, there have been
no changes to CJP § 5-108, which in relevant part, provides:
(a) Injury occurring more than 20 years later. — Except as provided by this
section, no cause of action for damages accrues and a person may not seek
contribution or indemnity for damages incurred when wrongful death,
(continued . . .)
12
Parties’ Contentions
The parties agree that the language of the statute of repose is clear and unambiguous.
They rely, however, on different versions of the statute to advance their arguments.
Westinghouse relies on the language in the presently codified version of CJP § 5-108.
Specifically, Westinghouse asserts that pursuant to subsection (a) of CJP § 5-108, the
Estate’s claims are barred and its causes of action do not comport with any of the exceptions
(. . . continued)
personal injury, or injury to real or personal property resulting from the defective
and unsafe condition of an improvement to real property occurs more than 20
years after the date the entire improvement first becomes available for its intended
use.
(b) Action against architect, professional engineer, or contractor. — Except
as provided by this section, a cause of action for damages does not accrue
and a person may not seek contribution or indemnity from any architect,
professional engineer, or contractor for damages incurred when wrongful
death, personal injury, or injury to real or personal property, resulting from
the defective and unsafe condition of an improvement to real property, occurs
more than 10 years after the date the entire improvement first became
available for its intended use.
* * *
[(d)](2) This section does not apply if:
(i) The defendant was in actual possession and control of the property
as owner, tenant, or otherwise when the injury occurred;
(ii) In a cause of action against a manufacturer or supplier for damages
for personal injury or death caused by asbestos or a product that contains
asbestos, the injury or death results from exposure to asbestos dust or fibers
which are shed or emitted prior to or in the course of the affixation,
application, or installation of the asbestos or the product that contains
asbestos to an improvement to real property;
(iii) In other causes of action for damages for personal injury or death
caused by asbestos or a product that contains asbestos, the defendant is a
manufacturer of a product that contains asbestos[.]
13
delineated in the statute. Westinghouse further argues that in light of the defined
exceptions under subsection § 5-108(d)(2), the “no cause of action” language of subsection
(a) should be interpreted as a blanket prohibition against all other suits that do not satisfy
the exceptions.
The Estate, in contrast, relies on the language of Ch. 666, the session law that
generated the initial statute of repose, Art. 57, § 20. In doing so, it contends that the Estate’s
causes of action “fall outside the temporal scope of the statute of repose” because the last
possible day that Mr. Piper’s undisputed asbestos exposure occurred was June 28, 1970,
and Section 2 of Ch. 666 limits its applicability to injuries “arising” after June 30, 1970.
Statutory Construction of Art. 57, § 20
When originally enacted in 1970, the statute of repose provided:
No action to recover damages for injury to property real or personal, or for
bodily injury or wrongful death, arising out of the defective and unsafe
condition of an improvement to real property, nor any action for contribution
or indemnity for damages incurred as a result of said injury or death, shall be
brought more than twenty years after the said improvement was substantially
completed. This limitation shall not apply to any action brought against the
person who, at the time the injury was sustained, was in actual possession
and control as owner, tenant, or otherwise of the said improvement. For
purposes of this section, “substantially completed” shall mean when the
entire improvement is first available for its intended use.
Art. 57, § 20. The plain language of the statute of repose provided that the statute will bar
an action for injury or death “arising out of” the defective and unsafe condition of an
improvement to real property twenty years after substantial completion of the
improvement. Webster's Third New International Dictionary of the English Language
(1961) defines the word “arise” as “to originate from a specified source . . . to come into
14
being . . . to become operative esp. in such a way as to attract attention . . . to appear above
the horizon . . . to come about: come up: take place.” The plain meaning of the word “arise”
suggests that the statute of repose would apply to causes of actions for injuries that
originated or came into being as a result of a defective and unsafe condition of an
improvement to real property.13
The “Exposure Approach”
Section 2 of Ch. 666 plainly expressed that the statute did not apply retroactively to
injuries when it provided that the act “shall not apply to any cause of action arising on or
before June 30, 1970.” In Scribner, we adopted the “exposure approach” for determining
when a cause of action arises in the context of actions to recover damages for injuries
related to asbestos exposure. 369 Md. at 394, 800 A.2d at 742. In that case we determined
when a cause of action related to asbestos exposure arises for purposes of the statutory cap
on noneconomic damages related to personal injury or wrongful death. Id. Scribner
concerned actions grounded in wrongful death and survival that stemmed from exposure
to products containing asbestos, where the decedent’s last day of exposure occurred
sometime in 1978. Id. CJP § 11-108, the statutory cap on noneconomic damages, went
into effect on July 1, 1986. After the jury awarded the plaintiff damages in excess of
$5,000,000, the defendants appealed, contending, in part, that the statutory cap applied to
limit the award for noneconomic damages. Id. at 374, 800 A.2d at 730.
13
As we will further discuss in Part II of this Opinion, for a cause of action to arise, the
plaintiff need not know of his or her injury, but for a cause of action to accrue, the plaintiff
must know, or reasonably should know, of his or her injury.
15
After considering three possible approaches for determining when a cause of action
arises, this Court rested on the “exposure approach,” which requires a trial court to look at
the plaintiff’s last day of exposure to the asbestos-containing product. Id. at 394, 800 A.2d
at 742. Recognizing the drawbacks to each approach, this Court concluded that the
“exposure approach” was the most appropriate in asbestos-exposure cases. Id. at 391–93,
800 A.2d at 740–41. Starting from the premise that “[i]f there is no injury, there is no cause
of action[,]” the Court recognized that “[w]hether the injury sued upon is cancer or
asbestosis, the plaintiff must, at the outset, establish that he or she has that disease[.]” Id.at 391–92, 800 A.2d at 740. The issue for the trial court, then, is to resolve “when that
injury came into existence” for the purpose of determining whether the injury occurred
before or after the effective date of CJP § 11-108. Id. at 392, 800 A.2d at 740.
We apply Scribner’s “exposure approach” with equal force to the facts of the present
case. Accordingly, we hold that when determining whether a plaintiff’s injury relating to
asbestos exposure arose prior to the effective date of the statute of repose, the date of the
plaintiff’s last exposure to asbestos-containing products applies. See Scribner, 369 Md. at
394, 800 A.2d at 742. The insidious nature of asbestos-related diseases and the purpose of
the statute of repose bolster our conclusion to apply the “exposure approach.”
In light of our application of the “exposure approach,” we turn now to the effective
date of the statute. Statutes of repose are defendant-focused statutes that insulate
defendants from liability after a specified date. Rose, 335 Md. at 362–63, 643 A.2d at 911–
12. When considering the purpose of statutes of repose, and Sections 2 and 3 of Art. 57 §
20, it is clear that the General Assembly did not intend to retroactively insulate from
16
liability defendants for injuries that they had already caused prior to the enactment of the
statute. See Ch. 666, Section 2.
In Slate v. Zitomer, we explained that there is a “general presumption [] that all
statutes . . . are intended to operate prospectively and the presumption is found to have been
rebutted only if there are clear expressions in the statute to the contrary.” 275 Md. 534,
541, 341 A.2d 789, 793 (1975) (emphasis added) (quoting State Farm v. Hearn, 242 Md.
575, 582, 219 A.2d 820, 824 (1966) (internal quotation marks omitted)). “This rule of
construction is particularly applicable where the statute adversely affects substantive
rights, rather than only altering [the] procedural machinery.” Id. at 541, 341 A.2d at 794(State Farm v. Hearn, 242 Md. 575, 582, 219 A.2d 820, 824 (1966) (internal quotation
marks omitted)). A statute of repose operates to protect substantive rights of the defendant
by limiting a defendant’s liability after a prescribed date. See Anderson v. United States,
427 Md. 99, 120, 46 A.3d 426, 439 (2012).
Westinghouse argued that the statute of repose applied to bar Mr. Piper’s causes
of action because his causes of action “accrued”14 in 2013, well after the effective date of
the statute. We disagree with the conclusion that the statute of repose applies under the
circumstances here. Before the statute went into effect, Westinghouse had already
executed the contract for the installation of the asbestos-containing insulation, and Mr.
Piper indisputably had already inhaled the asbestos fibers contained in the insulation
14
As we will further discuss in Part II of this Opinion, the word “accrue” refers to “when
a plaintiff in fact knows or reasonably should know of the wrong.” Georgia-Pacific Corp.
v. Benjamin, 394 Md. 59, 75, 904 A.2d 511, 521 (2006) (quoting Hecht v. Resolution Trust
Corp., 333 Md. 324, 334, 635 A.2d 394, 399 (1994)).
17
materials installed by WECCO. The last possible day of Mr. Piper’s exposure to asbestos-
containing products occurred no later than June 28, 1970, and it was at that point when his
injury and causes of action arose. See Ch. 666, Section 3 (“This Act shall take effect July
1, 1970.”). By the time of the effective date of the statute of repose, Mr. Piper had already
suffered an injury. See Scribner, 369 Md. at 394, 800 A.2d at 742. Because the statute
went into effect after Mr. Piper’s injury arose, the statute could not conceivably bar his
causes of action for strict liability, negligence, breach of contract, and “aiding and abetting
and conspiracy.”
It is the date of Mr. Piper’s injury—not the date of discovery of his cause of action—
that guides our analysis because “[i]f there is no injury, there is no cause of action.”
Scribner, 369 Md. at 391–92, 800 A.2d at 740. Mr. Piper’s diagnosis of mesothelioma in
2013 merely put him on notice that he had suffered an injury on a prior date and, therefore,
may have causes of action that came into being as a result of his injury. It follows that if
Mr. Piper had not been injured on or before June 28, 1970, then he would not have causes
of action that arose in 1970, and, therefore, would have no viable causes of action in 2013.
See id. at 392, 800 A.2d at 740. To be sure, if Mr. Piper had not been injured when alleged,
there would have been no latent disease to discover in 2013. Id. at 390, 800 A.2d at 739.
We, therefore, hold that the statute of repose does not apply to bar Mr. Piper’s causes of
action.
II.
We turn now to the opinion of the Court of Special Appeals. We acknowledge that
the Court of Special Appeals arrived at a different result than the one we reach now. The
18
Court of Special Appeals treated Mr. Piper’s diagnosis of mesothelioma as his injury, rather
than treating his exposure to asbestos as his injury. See Duffy, 232 Md. App. at 614–15,
161 A.3d at 8. The Court of Special Appeals primarily examined Ch. 666’s stated purpose
to interpret the plain language of the statute. As we will discuss, the intermediate appellate
court’s reasoning falters in several respects.
Operating from the premise that Mr. Piper’s injury was his diagnosis of
mesothelioma, the intermediate appellate court concluded that the statute of repose applied
at the moment that Mr. Piper received his diagnosis. Id. It concluded from the plain
language of CJP § 5-108 that Mr. Piper’s causes of action “did not accrue within 20 years”
of the time in which Respondent placed the turbine into operation. Id. Accordingly, the
intermediate appellate court concluded that CJP § 5-108 barred Mr. Piper’s action. Id.
Next, the Court of Special Appeals addressed Mr. Piper’s contention that his
“injury” was exposure to asbestos and, thus, arose on the date of his last exposure, as
explained in Scribner. Id. at 616, 161 A.3d at 9. Mr. Piper argued, as his Estate does
before us, that the uncodified Section 2 of Ch. 666 demonstrated that the statute did not
apply as a bar to “actions arising on or before June 30, 1970.” Id. at 615, 161 A.3d at 9.
The Court of Special Appeals disagreed and pointed to the word “accruing,” which
is contained in the paragraph stating the statute’s purpose15 of Ch. 666, and the word
15
The purpose of Chapter 666 was to “prohibit the bringing of actions based on injuries
arising out of defective conditions o[r] improvements to real property.” See Ch. 666. This
paragraph also stated that “the provision of the Act shall not apply to actions accruing prior
to its effective date.” See id. (Emphasis added).
19
“arising,” which is contained in Section 216 of Ch. 666. The intermediate appellate court
determined that the words must be construed as having the same meaning. Id. at 620, 161
A.3d at 11. As that court explained, the purpose of CJP § 5-108 was to “set a time limit
after which the discovery rule could not operate[.]” Id. at 619, 161 A.3d at 11 (quoting
Hillard & Bartko Joint Venture v. Fedco Sys., Inc., 309 Md. 147, 160, 522, A.2d 961, 968
(1987)). With that purpose in mind, the intermediate appellate court explained that “a
cause of action based on a latent defect or injury that had not accrued under the discovery
rule was cut off after twenty years from the time the improvement first became available
for its intended use.” Id. at 620, 161 A.3d at 11 (emphasis added). The Court of Special
Appeals justified its interpretation of Mr. Piper’s injury as the discovery of his
mesothelioma, reasoning that to do otherwise “would create a class of unaccrued causes of
action exempted from the statute where the latent defect or injury was present prior to July
1, 1970.” Id. The Court of Special Appeals concluded, therefore, that “[s]uch a
construction is contrary to the ‘clear’ purpose of Chapter 666.” Id. (citing Hillard & Bartko
Joint Venture v. Fedco Sys., Inc., 309 Md. 147, 160, 522 A.2d 961, 968 (1987)).
The rationale of the Court of Special Appeals is misguided for several reasons. First,
the intermediate appellate court disregarded the entire evolution of CJP § 5-108. Duffy,
232 Md. App. at 618, 161 A.3d at 10. It aptly noted that Art. 57, § 20 was amended in
1974. Id. at 619, 161 A.3d at 11. At that time, what is presently subsection § 5-108(e) was
added as subsection (c), and the subsection provided that “[a] cause of action for an injury
16
Section 2 of 1970 Maryland Laws, Chapter 666, provided, “And be it further enacted,
That this Act shall not apply to any cause of action arising on or before June 30, 1970.”
20
described in this section accrues when the injury or damage occurs.” Id. at 619, 161 A.3d
at 11 (quoting CJP § 5-108). The Court of Special Appeals explained that under CJP § 5-
108(e) “‘when the injury or damages occurs,’ means when the injury or damage is
discovered.” Id. at 615, 161 A.3d at 8 (citing Burns v. Bechtel Corp., 212 Md. App. 237,
243, 66 A.3d 1187, 1191, cert. denied, 434 Md. 312, 75 A.3d 317 (2013)). That court
failed to recognize that what is presently subsection (e) “was originally drafted so as to
avoid affecting the period within which a wrongful death action may be brought.” See
Revisor’s Note to CJP § 5-108. Thus, the Court of Special Appeals determined that Mr.
Piper discovered his injury in 2013 when he was diagnosed with mesothelioma. Id. The
intermediate appellate court, however, neglected to take into consideration that since the
1974 code revision, the General Assembly has amended CJP § 5-108 three times and
carved out additional exceptions to the protections afforded to defendants by the statute of
repose. See Rose, 335 Md. at 361–71, 643 A.2d at 911–16.
As we have already discussed, the statute underwent substantive changes in 1991 as
a result of the thousands of personal injury and property damage actions against product
manufacturers of asbestos containing products. See Eagle-Picher Indus., Inc. v. Balbos,
84 Md. App. 10, 17, 578 A.2d 228, 231 (1990), aff’d in part, rev’d in part, 326 Md. 179,
604 A.2d 445 (1992) (citing Cases Jam Civil Court Dockets, DAILY RECORD, July 11,
1990, at B5, col. 1). The 1991 amendments to the statute of repose explicitly addressed
defendants’ liability in asbestos exposure cases by excluding “asbestos manufacturers and
suppliers” from the protections under the statute. Rose, 335 Md. at 370, 643 A.2d at 915.
The legislative history of the statute of repose refutes the reasoning of the Court of Special
21
Appeals because it is clear that the General Assembly intended to preserve the rights of
individuals, who had suffered an asbestos-related injury, to file suit against manufacturers
and suppliers of asbestos-containing products. See id.With respect to the terms “arising” and “accruing,” the Court of Special Appeals
rationalized that “[t]o construe the term ‘arising’ in Section 2 to mean something different
from ‘accruing’ in the preamble would create an ambiguity, if not an outright conflict[.]”
Duffy, 232 Md. App. at 620, 161 A.3d at 11.17 To avoid such a conflict, the intermediate
appellate court determined that Mr. Piper’s cause of action would have had to both arise
and accrue prior to June 30, 1970. Id.
In reaching this conclusion, the Court of Special Appeals looked beyond the plain
language of Art. 57, § 20, in contravention to well-established principles of statutory
construction. See Duffy, 232 Md. App. at 613–14, 161 A.3d at 7–8. Ordinarily, “we look
first to the normal, plain meaning of the language of the statute, read as a whole so that no
word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or
nugatory.” Koste, 431 Md. at 25–26, 63 A.3d 582, 589 (2013) (quoting Whitley v. Md.
State Bd. Of Elections, 429 Md. 132, 149, 55 A.3d 37, 47–48 (2012) (internal quotation
marks omitted)). Furthermore, “[t]he best source of legislative intent is the statute’s plain
language,” and we consider the extraneous material, e.g., a “purpose paragraph” for
17
The Court of Special Appeals imprecisely referred to the purpose paragraph as the
preamble to Ch. 666. Whether the paragraph is considered the preamble or the purpose
paragraph is of no moment. The Court of Special Appeals erroneously relied on the
paragraph to create a contradiction in spite of the plain language of the statute, which
clearly expressed the legislative intent.
22
confirmatory purposes. Kramer v. Liberty Prop. Tr., 408 Md. 1, 19, 968 A.2d 120, 130–
31 (2009) (internal citations and quotation marks omitted).18 Our “resort to legislative
history is a confirmatory process; it is not undertaken to seek contradiction of the plain
meaning of the statute.” Id.The Court of Special Appeals improperly, yet principally, relied on the purpose
paragraph to determine that the statute applied to Mr. Piper’s claims insofar as it
contradicted the plain, unambiguous purpose espoused in Section 2 of Ch. 666, which
stated that Art. 57, § 20, did not “apply to any cause of action arising on or before June 30,
1970.” We neither seek, nor find, any contradiction between the purpose of the statute and
the plain language of the statute. It is clear, given the plain language of the statute and its
stated purpose, that the General Assembly intended for the statute to apply prospectively
to actions that arose and/or accrued after its effective date.
The intermediate appellate court’s analysis is problematic for another reason. The
Court of Special Appeals maintained the premise that an injury occurs at the same time
as its corresponding cause of action. Duffy, 232 Md. App. at 615, 161 A.3d at 8. That
premise, however, fails to account for the nature of certain causes of action that do not
accrue at the time the corresponding injury arises. See Mattingly v. Hopkins, 254 Md.
88, 92–93, 253 A.2d 904, 907 (1969). As we explained in Mattingly, “Sometimes the
happening of the wrong, the knowledge of it and the maturation of the harm are
18
See, for example, Johnson v. Mayor & City Council of Baltimore, 430 Md. 368, 388–95,
61 A.3d 33, 45–48 (2013), for a discussion of how a statute’s purpose paragraph can be
helpful to ascertain legislative intent. In that case, the purpose paragraph was insufficient
to rebut the presumption that the statute applied prospectively. Id.23
simultaneous.” Id. at 93, 253 A.2d at 907 (emphasis added). In those instances, “the
recognition of the accrual of the cause of action is simple[.]” Id. When the “happening
of the wrong, the knowledge of it and the maturation of the harm” do not occur
simultaneously, the accrual of a cause of action is “complex” and “hybridiz[ed].” Id.(Emphasis added). Claims related to asbestos exposure are precisely the complex causes
of action that Mattingly recognized. In asbestos-exposure cases, the happening of the
wrong, the knowledge of it, and the maturation of the harm are not only sequential, but
oftentimes the knowledge and the maturation occur long after the happening of the
wrong. See Lloyd E. Mitchell, Inc. v. Md. Cas. Co., 324 Md. 44, 60, 595 A.2d 469, 477
(1991).
Asbestos fibers lie dormant in the human body over a period of time. See id.19 The
fibers may eventually manifest into cancer, asbestosis, or mesothelioma. Id. The party
exposed to asbestos becomes aware of the injury only after he or she starts to experience
symptoms of a latent disease, which usually occur many years after exposure. Id. at 53–
54, 595 A.2d at 473–74. We have determined, therefore, with respect to the development
of asbestos-related diseases, “bodily injury occurs when asbestos is inhaled and retained in
the lungs.” Id. at 62, 595 A.2d at 478 (internal quotation marks omitted).
Discovery Rule
19
When asbestos fibers enter the body, they burrow into the lungs causing irritation,
inflammation, scarring, and at worst, cell mutations or cancer, and some of these effects
take decades to manifest. See
https://www.atsdr.cdc.gov/asbestos/health_effects_asbestos.html [https://perma.cc/9EUJ-
N3DL.]
24
The Court of Special Appeals did not address the applicability of the discovery rule,
or its relation to the statute of limitations in a civil action. We conclude that the discovery
rule applies in the context of asbestos-related cases. Further, we conclude that Mr. Piper
filed his complaint well within the three-year statute of limitations once he discovered that
he had a cause of action.
This Court first recognized the import of the discovery rule over a century ago, in
Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917), and we have since held that the rule
is generally applicable to all civil actions, absent any statutory provision to the contrary.
Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 74–76, 904 A.2d 511, 520–21 (2006).
The discovery rule “provides that a cause of action accrues when a plaintiff in fact knows
or reasonably should know of the wrong.” Id. at 75, 904 A.2d at 521 (quoting Hecht v.
Resolution Trust Corp., 333 Md. 324, 334, 635 A.2d 394, 399 (1994)). The Rule has been
applied in the context of latent diseases because “[t]hose who suffer injury due to
occupational disease or their beneficiaries may, in appropriate circumstances, be
blamelessly ignorant of the fact that a tort has occurred and thus, ought not be charged with
slumbering on rights they were unable to ascertain.” Id. (quoting Harig v. Johns-Manville
Prods. Corp., 284 Md. 70, 83, 394 A.2d 299, 306 (1978)) (internal quotation marks
omitted). At the moment of discovery of the injury, the plaintiff can no longer be deemed
ignorant, and his or her cause of action rightfully accrues. See id. at 76, 904 A.2d at 521.
In our application of the discovery rule in asbestos-related cases, we have inevitably
confronted the concepts of “arising” and “accruing” as they are used with respect to causes
of action related to asbestos exposure.
25
We applied the discovery rule in a products liability action involving an employee
of Johns-Manville Products Corporation (“Johns-Manville”), a business that fabricated and
warehoused products containing asbestos. Harig v. Johns-Manville Prods. Corp., 284 Md.
70, 72, 394 A.2d 299, 300 (1978). Twenty-one years after the employee left Johns-
Manville, she was diagnosed with malignant mesothelioma. Id. at 73, 394 A.2d at 301. In
Harig, we drew a parallel between professional malpractice cases and products liability
cases involving latent diseases. Id. at 80, 394 A.2d at 304–05. We reasoned that the two
types of cases shared a “critical factor” in that the discovery rule “gives to the individual
exercising reasonable diligence the full benefit of the statutory period in which to file suit,
while at the same time protecting the defendant from stale claims, as was intended by the
statute [of limitations].” Id. at 79, 394 A.2d at 304 (quoting Feldman v. Granger, 255 Md.
288, 297, 257 A.2d 421, 426 (1969)). We observed the need to avoid the “possible
injustice” that would proceed from strictly applying the statute of limitations in cases where
plaintiffs lacked awareness of their inherently unknowable injuries. Id. at 80, 394 A.2d at
305. Consequently, we determined that justice would be best served in those cases if we
applied the statute of limitations at the time when the plaintiff discovered, or, through
reasonable diligence, could have discovered her injury. See id. Importantly, 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.” Id. at 83, 394 A.2d at 306 (emphasis
added).
26
In Georgia-Pacific Corp., we confronted whether the discovery rule applied to toll
the limitations period for filing wrongful death and survival actions relating to the
decedent’s death from mesothelioma. 394 Md. at 64, 904 A.2d at 514. In that case, Mrs.
Benjamin and her children filed their actions more than five years after Mr. Benjamin’s
death. Id. Although Mr. Benjamin’s death certificate indicated that his cause of death was
“cancer (metastatic mesothelioma),” the surviving family members did not discover the
“nexus between asbestos exposure and cancer” until more than four years after his death.
Id. at 67, 904 A.2d at 516. The question before us in Georgia-Pacific Corp. was when did
the “causes of action against the manufacturers of asbestos containing products accrue.”
Id. at 74, 904 A.2d at 520 (quoting Benjamin v. Union Carbide Corp., 162 Md. App. 173,
191–92, 873 A.2d 463, 474 (2005)).
In a nearly identical fashion as Respondent in the case sub judice, the defendant-
asbestos manufacturers in Georgia-Pacific Corp. argued that under the wrongful death
statute, “the three-year limitations period is triggered when death is discovered and not
when the claimant discovers that the underlying cause of decedent’s death was an
occupational disease, i.e., asbestos exposure.” Id. at 77, 904 A.2d at 521. We clarified that
the “two relevant inquiries necessary to determine the commencement date for a cause of
action for wrongful death” were “(1) did the cause of action commence at the time of the
decedent’s death; or (2) did the cause of action commence when the beneficiaries became
aware of the causal link between the decedent’s illness and his exposure to a toxic
substance?” Id. at 80, 904 A.2d at 523. We applied the discovery rule to the wrongful
death statute and held that “an occupational disease-related wrongful death action accrues
27
when ‘knowledge of the wrong upon which the action is based is discovered or should be
discovered.’” Id. at 92, 904 A.2d at 530 (quoting Waddell v. Kirkpatrick, 331 Md. 52, 62,
626 A.2d 353, 358 (1993), superseded in part, Parker v. Hamilton, 453 Md. 127, 160 A.3d
615 (2017)).
In Scribner, rather than consider when a cause of action accrues for purposes of the
statute of limitations, we considered when a cause of action involving a latent disease arises
for purposes of the applicability of the statutory cap on noneconomic damages related to
personal injury or wrongful death, CJP § 11-108. Scribner, 369 Md. at 394, 800 A.2d at
742. We declared succinctly in Scribner “[i]f there is no injury, there is no cause of action.”
Id. at 391–92, 800 A.2d at 740. This Court clarified that “[w]hether the injury sued upon
is cancer or asbestosis, the plaintiff must, at the outset, establish that he or she has that
disease and that it was caused, in whole or substantial part, by exposure to the defendant’s
asbestos-containing product.” Id. at 392, 800 A.2d at 740. “When there is a latency period
between the exposure or event that ultimately produces the injury and the manifestation or
discovery of that injury, the injury will almost necessarily occur before it is, or as a practical
matter can be, discovered.” Id. at 384, 800 A.2d at 736. The Court’s explanation in
Scribner underscores the idea that a cause of action may not accrue at the time the injury
arises, i.e., when there is exposure to asbestos. For purposes of the applicability of the
damages cap in CJP § 11-108, the Scribner Court held “as a matter of law” that the statute
did not apply if the “last exposure undisputedly was before” the effective date for CJP §
11-108. Id. at 394, 800 A.2d at 742. In the present case, the Court of Special Appeals
erroneously prioritized when Mr. Piper’s causes of action accrued in determining that the
28
statute of repose applied instead of assessing when the underlying injury arose to determine
the statute’s applicability. See Duffy, 232 Md. App. at 615, 161 A.3d at 8. That a cause of
action arises but does not accrue at the time of exposure does not diminish the legal
significance of the underlying injury when considering the applicability of the statute of
repose.
Both Harig and Georgia-Pacific Corp. addressed the discovery rule in the context
of asbestos cases, whereas Scribner addressed the meaning of the word “arise” in the
context of asbestos cases. In Scribner, we concluded that causes of action flowing from
asbestos exposure arise at the time of the injury, i.e., at the time of the exposure to asbestos.
See Scribner, 369 Md. at 391–92, 800 A.2d at 740. Under the reasoning of Harig and
Georgia-Pacific Corp., the corresponding causes of action that follow from asbestos
exposure accrue at the time of discovery of the latent disease, so that the plaintiff is charged
with notice to act on the cause of action. Harig, 280 Md. at 83, 394 A.2d at 306; Georgia-
Pacific Corp., 394 Md. at 97, 904 A.2d at 533–34. When a cause of action “accrues”
determines when the discovery rule applies in relation to the manifestation of a latent
disease, whereas when a cause of action “arises” determines whether a statute applies in
relation to exposure to asbestos, i.e., the injury leading to potential causes of action.
Although our review of the asbestos-related case law is a perspective available only
in hindsight, the General Assembly is presumed to have enacted the 1970 statute of repose
with knowledge of our discussion of the accrual of causes of actions in Mattingly, which
was issued in 1969. See Allen v. State, 402 Md. 59, 72, 935 A.2d 421, 428 (2007) (“The
Legislature is presumed to be aware of our prior holdings when it enacts new
29
legislation[.]”). For the Court of Special Appeals to conflate the terms “arise” and “accrue”
disregards the differences as well as the significance we have accorded these terms
throughout our case law. Indeed, we have previously opined that our holdings in Mattingly,
Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 177 (1969), and Callahan v.
Clemens, 184 Md. 520, 41 A.2d 473 (1945), in part, prompted the enactment of the 1970
statute of repose. Hillard & Barko Joint Venture v. Fedco Sys., Inc., 309 Md. 147, 160,
522 A.2d 961, 968 (1987).20 Disregarding the meaning assigned to “arise” and “accrue”
in our jurisprudence led the Court of Special Appeals in this case to overlook the
importance of the General Assembly’s deliberate choice to use the word “arise” in Section
2 of Ch. 666. See Ch. 666, § 2 (“SEC. 2. And be it further enacted, That this Act shall not
apply to any cause of action arising on or before June 30, 1970.”).
We discern that when the General Assembly enacted Ch. 666 it intentionally used
“arise” in Section 2 and “accrue” elsewhere. When enacted in 1970, Art. 57, § 20 applied
prospectively and not retroactively. Both the stated purpose and Section 2 of Ch. 666
confirm our construction of the statute. The statute does not bar causes of action that have
accrued, and by necessity had to have arisen, prior to July 1, 1970. See Ch. 666, (“A[n]
A[ct] to . . . prohibit the bringing of actions based on injuries arising out of defective
conditions or improvements to real property . . . [and] the provision of the Act shall not
20
Our holdings in those cases involved application of the discovery rule to determine
accrual of a malpractice cause of action against an architect (Menefee) and professional
engineer (Mattingly). Hillard & Barko Joint Venture v. Fedco Sys., Inc., 309 Md. 147,
160, 522 A.2d 961, 968 (1987). In Callahan, the discovery rule was applied involving a
cause of action for negligence against a contractor. Id.30
apply to actions accruing prior to its effective date.”) (emphasis added). The statute also
does not bar causes of action that have arisen prior to July 1, 1970, but have yet to accrue.
Conclusion
Consistent with our holdings in Harig, Scribner, and Georgia-Pacific Corp., we
hold that for purposes of asbestos-related causes of actions, an injury arises at the time of
last exposure to the asbestos-laden product. Because the statute of repose was enacted after
the date of Mr. Piper’s injuries, as a matter of law, the statute does not bar Mr. Piper’s
causes of actions. Therefore, the Circuit Court erred when it granted summary judgment
in favor of Westinghouse.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED;
CASE REMANDED TO THAT COURT
WITH DIRECTIONS TO REVERSE
THE JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY.
COSTS TO BE PAID BY
RESPONDENT.
31