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The Exceptions to Maryland’s Statute of Repose Apply Beyond Asbestos-Related Cases

November 1, 2017 By Margaret E. Vetter

Gilroy v. SVF Riva Annapolis LLC
Maryland Court of Special Appeals
No. 2610, September Term, 2015
Decided: September 1, 2017

The Court of Special Appeals recently considered the question of whether the exceptions to Maryland’s statute of repose apply beyond asbestos-related cases. The statute provides in part that no cause of action for personal injury or death accrues if caused by the defective and unsafe condition of an improvement to real property more than 20 years after the improvement first becomes available for its intended use.

On January 13, 2012, Sean McLaughlin was repairing the HVAC unit on the roof of the Chuck E. Cheese restaurant at the Festival at Riva Shopping Center in Annapolis. While climbing the exterior wall to access the HVAC unit, McLaughlin fell more than 20 feet to a concrete pad. He was badly injured and passed away 12 days later.

On January 27, 2014, Plaintiffs Moreen Elizabeth Gilroy and McLaughlin’s other survivors filed suit in the United States District Court for the District of Maryland against Defendants SVF Riva Annapolis, LLC, the owner of the shopping center; Rappaport Management Corporation, the center’s property management company; and CEC Entertainment, Inc., the tenant and operator of the restaurant. The District Court dismissed the suit without prejudice for lack of subject matter jurisdiction. On May 12, 2015, Plaintiffs filed a wrongful death action in the Circuit Court for Anne Arundel County alleging negligence and premises liability.

Defendants SVF Riva and Rappaport filed motions for summary judgment. Among other points, the motions argued that Maryland’s statute of repose and Maryland’s statute of limitations for wrongful death cases barred the Plaintiffs’ claims. Maryland’s statute of repose excludes the filing of lawsuits against certain classes of individuals and/or entities after the expiration of a set term of years. The statute set forth exceptions, but the defendants argued that the exceptions pertained only in the context of asbestos claims, and not to the claim at issue.  The trial court agreed, finding that the exception to the operation of the statute for defendants who were “in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred,” applied only to asbestos-related cases. As a result, the trial court dismissed the action.

On appeal, the Court of Special Appeals considered the sole question whether the exceptions to Maryland’s statute of repose apply only to asbestos-related cases. The Court explained that § 5-108(d)(2)(i), the exception for defendants in actual possession and control of property when the injury occurred, makes no mention of asbestos and that the other three exceptions to the statute which reference asbestos are to be treated separately and independent from section (i). Accordingly, the Court concluded that because Plaintiffs’ pleadings provided a basis for one or all of the Defendants to fall within that exception, the judgment of the Circuit Court was reversed and the case was remanded to consider which of the Defendants fell within the exception.