MATRICCIANI, J.
Appellant, Jean Burns, and her husband, Robert,
Appellant presents the following questions, which we have rephrased to comport with our discussion:
For the reasons that follow, we answer no and affirm the judgment of the Circuit Court for Baltimore City.
According to his complaint, Mr. Burns worked from 1949 to 1986 as a roving maintenance employee for the Potomac Electric Power Company ("PEPCO"). He overhauled generators, rebuilt their components, and cleaned up after other tradesmen.
During the course of Mr. Burns' employment, PEPCO hired Bechtel as its general contractor to perform construction projects at its various power stations, including three that are relevant to the present appeal: the Dickerson, Chalk Point, and Morgantown plants. Bechtel was responsible for each project's design, specifications, and construction, and the contract for work at the Dickerson and Chalk Point plants granted Bechtel "absolute control" of the projects.
Mr. Burns was diagnosed with mesothelioma in August of 2009 and, joined by his wife, brought suit against Bechtel and various other parties involved in the PEPCO construction projects on November 5, 2009. Bechtel moved for summary judgment on the ground that all claims against it were barred by CJ § 5-108, which provides repose for certain defendants from claims of "wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property."
Summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501(f). Because we have the same information from the record and decide the same issues of law as the trial court, our review is de novo and takes the facts in a light most favorable to the non-moving party (here, appellant). Injured Workers' Ins. Fund v. Orient Exp. Delivery Serv., Inc., 190 Md.App. 438, 451, 988 A.2d 1120 (2010) (citations omitted).
Appellant first argues that Bechtel was excluded from repose by CJ § 5-108(d)(2)(i) because the firm was "in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred." Specifically, appellant argues that Bechtel falls under subsection (d)(2)(i) because "Bechtel, by the very terms of its contracts and specifications, retained `complete' and `absolute control' over all aspects of the job sites in question." Appellant's argument fails for two reasons, corresponding to the two elements of (d)(2)(i).
First, appellant's argument ignores the word "possession" and the conjunctive "and" in subsection (d)(2)(i). Taken together, the plain meaning of the words "possession," and the principle of ejusdem generis as applied to the examples "owner" and "tenant" listed in (d)(2)(i), imply that this subsection requires not only "control" but also some proprietary interest in the liable premises. But in this case, the very terms that appellant uses to describe Bechtel's status exclude that possibility. According to appellant — and the relevant construction contracts between Bechtel and PEPCO — Bechtel exercised "complete control of the project" at each location, not control of the premises themselves. (Emphasis added.) Bechtel's rights were thus limited to the scope of its contractual duties to perform construction work; the contracts did not give Bechtel a possessory or proprietary interest in PEPCO's properties.
We further note that, as Bechtel rightly argues, the language and construction of subsection (d)(2)(i) mirrors the common-law principle of strict premises liability for abnormally dangerous activities. This common law liability requires "that the defendant be the owner, tenant or an occupier of the land in the sense that his occupancy is possession taken for the purpose of exercising control of the land." Toy v. Atl. Gulf & Pac. Co., 176 Md. 197, 213, 4 A.2d 757 (1939). In the time since Toy v. Atlantic Gulf, the Court of Appeals "has refused to extend the abnormally
Even if Bechtel had a sufficient possessory interest in the premises during their construction, appellant's argument fails because it did not have that interest when the injury occurred. By the express terms of § 5-108(e), "[a] cause of action for an injury described in this section accrues when the injury or damage occurs." And as the Court of Appeals explained in Hilliard & Bartko Joint Venture v. Fedco Sys., Inc., 309 Md. 147, 162, 522 A.2d 961 (1987), the Statute of Repose incorporates the common law discovery rule of accrual: "[T]he language of present subsection (e), equating accrual with `when the injury or damage occurs,' means when the injury or damage is discovered."
For these reasons, Bechtel was not in actual possession and control of the PEPCO property when the injury occurred, and CJ § 5-108(d)(2)(i) does not exclude it from the general Statute of Repose.
Appellant also argues that Bechtel is not shielded from liability by the Statute of Repose because the asbestos materials that allegedly caused her husband's illness and death were not "improvements" within the meaning of CJ § 5-108(a). Appellant does not dispute that the asbestos insulation at the PEPCO facilities were improvements upon installation. Instead, appellant argues that, in terms of the Statute of Repose, "improvements" does not include materials defined elsewhere in the Statute as "asbestos dust or fibers which are shed or emitted prior to or in the course of the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property." CJ § 5-108(d)(2)(ii). But as we now explain, this language is part of an exception (for certain actors) to the Statute of Repose, which implies that its subject ordinarily falls within the Statute's protections. Thus, because Bechtel and the asbestos products in this case do not fall within subsection (d)(2)(ii)'s exception to repose, Bechtel remains shielded by the statute and was entitled to summary judgment.
(Internal citations and quotation marks omitted.) Here, we look to the statute's legislative history only incidentally, and it confirms that appellant's argument must be rejected because it renders the relevant part of subsection (d)(2)(ii) superfluous and nugatory.
As originally enacted, CJ § 5-108(a) did not specify whether, for its limited purposes, "improvements" entitled to repose included the component parts that would later become those improvements. Subsection (a) also did not specify a type of defendant entitled to repose, and any argument that its scope is unlimited was laid to rest in 1979. That year, the Maryland General Assembly added subsection (b), which created a more favorable ten-year statute of repose for architects and professional engineers only. See 1979 Laws of Maryland, Ch. 698; Rose v. Fox Pool Corp., 335 Md. at 366-67, 643 A.2d 906.
With one class of actor now carved out of the Statute of Repose, questions quickly arose concerning other types of defendants:
Rose v. Fox Pool Corp., 335 Md. at 367, 643 A.2d 906.
In response to these rulings, the Maryland General Assembly amended CJ § 5-108 so that repose does not extend to "a manufacturer or supplier for damages for personal injury or death caused by asbestos or a product that contains asbestos, [if]
Furthermore, if — as appellant argues — subsection (a) did not previously extend to such fibers, then the newly-added subsection (d)(2)(ii) could simply have excluded all product manufacturers and suppliers from repose. In other words, if appellant's definition of "improvements" is correct, then it was not necessary to specify a product's status in the construction process when enacting subsection (d)(2)(ii). We must assume, however, that the General Assembly did not use superfluous language, so the language of (d)(2)(ii) quoted above was necessary to create an exception to repose, and appellant's premise must therefore be incorrect.
Finally, while appellant cites a number of cases from other jurisdictions holding that "improvements" as used in various Statutes of Repose excludes materials destined to be incorporated in improvements, none of them addresses a similar judicial and legislative history to ours. See Willis v. Raymark Indus., Inc., 905 F.2d 793 (4th Cir.1990) (interpreting Virginia's statute of repose); Buttz v. Owens-Corning Fiberglas Corp., 557 N.W.2d 90 (Iowa 1996); Olsen v. Oklahoma Gas & Elec. Co., 288 P.3d 940, cert. denied, reh'g denied (Okl.Civ. App.2012); White v. CBS Corp., 996 S.W.2d 920 (Tex.App.1999).
As our discussion has shown, the enactment of the specific exceptions contained in CJ § 5-108(d)(2)(ii) demonstrates by contrast that subsection (a) does not exclude from repose "damages for personal injury or death caused by asbestos or a product that contains asbestos, [if] the injury or death results from exposure to asbestos dust or fibers which are shed or emitted prior to or in the course of the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property." With no other reason to exclude Bechtel and the alleged harm in this case from the statute of repose, appellant's claims were time-barred by CJ § 5-108(a), and we therefore affirm the trial court's order awarding summary judgment to Bechtel.
There was no dispute that the PEPCO construction projects in this case were completed as of 1971. Thus, regardless of whether the repose period was ten or twenty years, appellant's claims were void if they accrued after 1991. Consequently, appellant argued — and argues — that her claims lie outside of § 5-108 entirely, making irrelevant the question of whether Bechtel is an architect, professional engineer, or contractor entitled to the shorter repose period of § 5-108(c).