Duffy v. CBS Corp.

JUNE DIANE DUFFY, AS PERSONAL REPRESENTATIVE OFTHE ESTATE OF JAMES F. PIPER v. CBS CORPORATION, F/K/A VIACOM, INC.,F/K/A WESTINGHOUSE ELECTRIC CORP.

No. 41

COURT OF APPEALS OF MARYLAND

Argued: December 1, 2017

September Term, 2017

March 28, 2018

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injuries or cause of action arose prior to the enactment of the Courts and Judicial Proceedings Article § 5-108, originally enacted as Article 57, § 20.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

Barbera, C.J. Greene, McDonald, Watts, Hotten, Getty, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Greene, J.

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 thedevelopment 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").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 variousdefendants 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 forWestinghouse 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 anasbestos-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 appealto 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...