Duffy v. CBS Corp.

232 Md.App. 602

161 A.3d 1

June Diane DUFFY, as Personal Representative of the Estate of James F. Piper

v.CBS CORPORATION

June Diane Duffy, as Personal Representative of the Estate of James F. Piper

v.CBS Corporation

No. 453, Sept. Term, 2015

No. 40, Sept. Term, 2016

Court of Special Appeals of Maryland.

May 31, 2017

Argued by: Daniel A. Brown & Ian G. Thomas (Brown & Gould, LLP, on the brief), Bethesda, MD and Matthew E. Kiely (Matthew E. Kiely, LLC, on the brief), Baltimore, MD, for Appellant.

Argued by: Philip A. Kulinski (Clare M. Maisano, Evert Weathersby Houff, on the brief), Baltimore, MD, for Appellee.

Panel: Woodward, C.J., Kehoe, Leahy, JJ.

Woodward, C.J.

In a complex, multi-party asbestos case brought by James F. Piper, appellant,¹ in the Circuit Court for Baltimore City, CBS Corporation ("CBS"), appellee, filed a motion for summary judgment, contending that the statute of repose barred Piper's cause of action against it. See Md. Code (1974, 2013 Repl. Vol.), § 5–108 of the Courts and Judicial Proceedings Article ("CJP"). Following a hearing, the court granted CBS's motion. Piper noted this appeal, presenting three issues, for our review, which we have consolidated into the following question:²

Did the circuit court err in granting CBS's motion for summary judgment?

For the reasons stated below, we answer this question in the negative and affirm the judgment of the circuit court.

BACKGROUND

CBS is a Delaware corporation that is the successor by merger to a Pennsylvania corporation bearing the same name, which was formerly known as Westinghouse Electric Corporation ("Westinghouse"). In early 1970, Westinghouse entered into a contract with the Potomac Electric Power Company ("Pepco") to sell a turbine generator for Pepco's Morgantown Generating Station ("Morgantown") in Woodzell, Maryland. Pepco signed a separate contract with Westinghouse for the installation of the turbine generator at the site. The specifications in that installation contract called for the use of insulation containing asbestos.

Piper worked as a steamfitter at Morgantown. Although 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 workers installed such insulation was June 28, 1970, and the turbine generator was operational by July of 1970.

On December 26, 2013, Piper was diagnosed with mesothelioma.³ According to Piper, his mesothelioma was caused by inhalation of asbestos fibers during his career as a steamfitter, which included the time that he worked at Morgantown.⁴ On March 26, 2014, Piper filed a complaint in the circuit court for damages caused by his exposure to asbestos.⁵ On January 9, 2015, CBS filed a motion for summary judgment, alleging that Piper's cause of action against it was barred by the statute of repose. Following a hearing, the court entered an order granting CBS's motion on March 9, 2015. Piper thereafter noted this appeal.

PRELIMINARY MATTER

At the outset of this case, CBS contends that we should dismiss Piper's appeal because he appealed from a non-appealable order, and thus we lack jurisdiction. We deny CBS's motion and determine that we do have jurisdiction to hear this case.

The Court of Appeals has explained:

A fundamental principle of the statute that defines the jurisdiction of the appellate courts is that, as a general rule, a party may appeal only from "a final judgment entered in a civil or criminal case by a circuit court." CJ § 12–301 [.]

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[A] ruling must ordinarily have the following three attributes to be a final judgment: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy[;] (2) unless the court acts pursuant to Maryland Rule 2–602(b) to direct the entry of a final judgment as to less than all of the claims or all of the parties, it must adjudicate or complete the adjudication of all claims against all parties; [and] (3) it must be set forth and recorded in accordance with Rule 2–601.

Metro Maint. Sys. S., Inc. v. Milburn , 442 Md. 289, 297–98, 112 A.3d 429 (2015). There are three exceptions to the final judgment requirement: "(1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals permitted under Maryland Rule 2–602 ; and (3) appeals from interlocutory rulings allowed under the common law collateral order doctrine." Md. Bd. of Physicians v. Geier , 451 Md. 526, 546, 154 A.3d 1211 (2017).

The order granting CBS's motion for summary judgment was not final when it was entered, because it did not resolve all claims as to all parties in the instant case. Neither did the order fall into one of the three exceptions listed above. Accordingly, at the time Piper noted his appeal, it was premature.

After noting the appeal, however, Piper dismissed from the case the sole remaining defendant, Walter E. Campbell Co., Inc., and asked the circuit court for an order entering a final judgment. On February 8, 2016, the court granted the dismissal and issued the requested order.

Maryland Rule 8–602(e) states, in relevant part:

(1) If the appellate court determines that the order from which the appeal is taken was not a final judgment when the notice of appeal was filed but that the lower court had discretion to direct the entry of a final judgment pursuant to Rule 2–602(b),⁶ the appellate court, as it finds appropriate, may ... (D) if a final judgment was entered by the lower court after the notice of appeal was filed, treat the notice of appeal as if filed on the same day as, but after, the entry of the judgment.

(Emphasis added). Because a final judgment was entered by the trial court after Piper noted his appeal, Rule 8–602(e)(1)(D) authorizes us to treat his notice of appeal as if it was filed on the same day as the final judgment, but after the entry thereof. See McCormick v. Medtronic, Inc. , 219 Md.App. 485, 506 n. 5, 101 A.3d 467 (2014) (finding "[a]lternatively, because the circuit court's order effectively became final when the [appellants] dismissed their claims against Dr. Rosner with prejudice, we may treat their 'notice of appeal as if filed on the same day as, but after, the entry of the judgment.' Md. Rule 8–602(e)(1)(D).").

Accordingly, we have jurisdiction to address the merits of the instant appeal.

STANDARD OF REVIEW

Maryland appellate courts have explained:

"On review of an order granting summary judgment, our analysis 'begins with the determination [of] whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.' D'Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d 941, 955 (2012) (quoting Appiah v. Hall, 416 Md. 533, 546, 7 A.3d 536, 544 (2010) ); O'Connor v. Balt. Cnty., 382 Md. 102, 110, 854 A.2d 1191, 1196 (2004). If no genuine dispute of material fact exists, this Court determines 'whether the Circuit Court correctly entered summary judgment as a matter of law.' Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571, 948 A.2d 11, 18 (2008) (citations omitted). Thus, '[t]he standard of review of a trial court's grant of a motion for summary judgment on the law is de novo, that is, whether the trial court's legal conclusions were legally correct.' D'Aoust, 424 Md. at 574, 36 A.3d at 955."

James G. Davis Constr. Corp. v. Erie Ins. Exch. , 226 Md.App. 25, 34–35, 126 A.3d 753 (2015) (quoting Koste v. Town of Oxford, 431 Md. 14, 24–25, 63 A.3d 582 (2013) ), cert. denied , 446 Md. 705, 133 A.3d 1110 (2016).

DISCUSSION

I.

In the case, sub judice , the parties do not claim that there is a genuine dispute as to any material fact. It is undisputed that (1) the last date of Piper's exposure to asbestos dust generated by the installation of insulation to Unit 1 turbine generator at Morgantown was June 28, 1970; (2) Morgantown's Unit 1 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 primary issue in the instant case is whether Piper's cause of action against CBS is barred by the statute of repose, CJP § 5–108, which is an issue of law. Resolution of that issue will require us to engage in statutory construction of Section 5–108.

A.

The statute of repose, as codified in Section 5–108, provides, in relevant part:

(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, 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.

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(e) When action accrues. —A cause of action for an injury described in this section accrues when the injury or damage occurs.

(Emphasis added).

In Rose v. Fox Pool Corp. , 335 Md. 351, 643 A.2d 906 (1994), Judge Irma Raker, writing for the Court of Appeals, set forth the principles of statutory construction that guide us in interpreting Section 5–108. Judge Raker wrote:

The issues raised in this appeal require us to discern the meaning of § 5–108(a). The cardinal rule of statutory construction is to effectuate and carry out legislative intent. See, e.g., Comptroller v. Jameson, 332 Md. 723, 732, 633 A.2d 93, 97 (1993) ; G EICO v. Insurance Comm'r, 332 Md. 124, 131, 630 A.2d 713, 717 (1993). Every statute is enacted to further some underlying goal or purpose— "to advance some interest, to attain some end"—and must be construed in accordance with its general purposes and policies. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987) ; see alsoState v. Fabritz, 276 Md. 416, 421, 348 A.2d 275, 278 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976). When called upon to construe

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