Maryland Court Affirms Application of Statute of Repose in Asbestos Matter Court of Special Appeals of Maryland, May 31, 2017
On December 13, 2013, plaintiff James F. Piper was diagnosed with mesothelioma and filed suit in the Circuit Court for Baltimore City on March 26, 2014 for damages caused by his occupational asbestos exposure. Piper worked as a steamfitter at the Morgantown Generating Station in Woodzell, Maryland. In early 1970, defendant Westinghouse installed a turbine generator at this site to which the specifications called for the use of insulation containing asbestos. Piper testified that while he did not work directly on the installation of the turbine generator, he worked in the vicinity of the workers installing the turbine generator’s insulation. The last day of work on the turbine generator was June 28, 1970 and it was operational in July of that same year.
On January 9, 2015, Westinghouse filed a motion for summary judgment, alleging that Piper’s cause of action against it was barred by the statute of repose. The circuit court granted the motion and Piper appealed.
The primary issue on appeal was whether Piper’s claim against Westinghouse was barred by the statute of repose under CJP § 5-108, which is an issue of law. It was undisputed that (1) the last date of Piper’s exposure to asbestos dust from the installation of insulation on the relevant turbine generator was prior to June 28, 1970; (2) the turbine generator, which was fabricated and installed by Westinghouse was substantially completed no later than July 1970; and (3) Piper was diagnosed with mesothelioma on December 26, 2013.
The Statute of Repose in Maryland, under CJP § 5-108, states in relevant part:
(a) Injury occurring more than 20 years later: 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.
(e) When action accrues: A cause of action for an injury described in this section accrues when the injury or damage occurs.
On appeal, Piper contended, among other things, that the circuit court erred in retroactively applying the statute of repose to bar his cause of action because the because his injury “arose” on June 28, 1970, and the session law that passed the original statute of repose contained language indicating that the statute does not apply to injuries arising on or before June 30, 1970. Piper conceded that his injury “accrued” in 2013 when his injury was discovered but argued that the date of accrual was irrelevant. Piper argued that the statute of repose could not be applied retroactively to him, “because subsequent revisions and amendments to the statute lack a ‘clear expression’ in favor of retroactivity.”
The Court of Special Appeals of Maryland addressed Piper’s argument distinguishing the terms accrue and arose, by finding, although this argument is correct today for asbestos cases, it could not be grafted onto the Legislature’s intent in 1970 when the statute of repose was passed because those terms had not yet been distinguished. Therefore, because of the history, language and intent of the statute, the court concluded that the term “arising” carried the same meaning as the term “accruing” (regarding the date the injury was discovered). Accordingly, this would not bar the application of the statute of repose barring Piper’s claim.
The defendant’s motion for summary judgment based on the statute of repose was affirmed.