On December 1, 2017, the Court of Appeals of Maryland heard arguments on an appeal from a decision holding that the state’s 20-year statute of repose bars asbestos claims that accrue after the enactment of the asbestos manufacturer exemption of 1991. Duffy v. CBS Corp., 232 Md. App. 602, cert. granted, 456 Md. 53 (2017).
The statute of repose limits liability for injuries which occur from “the defective and unsafe condition of an improvement to real property.” MD. CODE ANN., CTS. & JUD. PRO. § 5-108(a) (2013). The statute operates to bar claims of injury which accrue more than twenty years after the improvement to real property first becomes available for its intended use. In 1991, Maryland legislators enacted an amendment to the statute of repose specifically exempting asbestos manufacturers from the protection of § 5-108. The exemption specifically pertains to injuries resulting from exposure to asbestos dust shed from a product installed as an improvement to real property. CJP § 5-108(d)(2)(ii).
James F. Piper was diagnosed with mesothelioma in 2013 and through his personal representative, June Diane Duffy, sued the company that sold and installed a turbine generator at Piper’s place of employment, a power plant. Piper alleged that his mesothelioma was caused by the inhalation of asbestos fibers from working “in the vicinity of the workers installing the turbine generator’s insulation,” which contained asbestos. Duffy, 232 Md. App. at 607. The Circuit Court for Baltimore City granted the defendant manufacturer’s motion for summary judgment on the grounds that the statute of repose barred Piper’s claim. Piper appealed.
The Court of Special Appeals agreed with the defendant that the installation of the turbine generator was considered an improvement to real property, thereby, triggering the statute of repose. The court held that since the turbine generator was installed and operational by July 1970, § 5-108 precluded Piper’s cause of action because his injury occurred more than twenty years after the generator was substantially completed. The court further held that Piper’s injury “occurred”, for purposes of the statute, when his mesothelioma was discovered in 2013, forty-three years after the turbine generator was installed and became available for use. See id. at 615. After analyzing the statute’s plain language, the court also held that, although the statute of repose was reenacted in 1974 after Piper’s last exposure, it still applied because the claim accrued when his mesothelioma was discovered, at which time § 5-108 was in full effect.
The Court next turned its attention to Piper’s argument that the 1991 exemption applied to the defendant manufacturer of the turbine generator, and that his claims were therefore not barred by the statute of repose. The Court held that the manufacturer exemption of 1991 for asbestos-related litigation did not apply to Piper’s claim because his cause of action was already barred in July 1990, before the exemption’s enactment. The intermediate appeals court concluded that applying the exemption to Piper’s claim would result in a retroactive legislation which would deny the defendant the protection it had prior to 1991 — a constitutional violation of the defendant’s vested rights. See id. at 622.
If the Court of Appeals affirms the intermediate court’s holding, plaintiffs who allege injury from asbestos exposure prior to 1970 resulting from an improvement to real property, may have their claims time-barred.
You can view the full Court of Appeals oral arguments here.
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