HARRELL, J.
The Circuit Court for Washington County granted a motion to dismiss this wrongful death action, brought by the family of the decedent, Margaret Varner, on the grounds that Mrs. Varner could not have brought timely a claim for medical negligence at the time of her death. When it granted the motion, the Circuit Court lacked clear guidance from this Court on the meaning of key language in Maryland's wrongful death statute, including the requirement
On 8 March 2011 effectively,
The complaint filed in the Circuit Court contained four wrongful death counts,
Dr. Alizadeh filed a motion to dismiss, arguing that, although the Beneficiaries filed their wrongful death claims within three years of Mrs. Varner's death, their claims were precluded because Mrs. Varner had not brought timely a personal injury lawsuit against Dr. Alizadeh, nor could she have at the time of her death as it would have been time-barred by the statute of limitations applicable to medical negligence claims. Maryland Code (1974, 2013 Repl.Vol.), Courts and Judicial Proceedings Article § 5-109(a). After
We answer both questions in the negative and shall reverse the Circuit Court's judgment.
On appeal from the grant of a motion to dismiss, our task is to determine whether the trial court was legally correct. Sprenger v. Pub. Serv. Comm'n, 400 Md. 1, 21, 926 A.2d 238, 250 (2007) (citing Pendleton v. State, 398 Md. 447, 921 A.2d 196 (2007)). In doing so, we "must assume the truth of, and view in a light most favorable to the nonmoving party, all well-pleaded facts and allegations contained in the complaint, as well as all inferences that may reasonably be drawn from them," and we may "order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff." RRC N.E., LLC v. BAA Md., Inc., 413 Md. 638, 643, 994 A.2d 430, 433 (2010). The questions before us in this appeal involve statutory interpretation, which are legal issues that we view without deference to the legal analysis of the trial court. Harvey v. Marshall, 389 Md. 243, 257, 884 A.2d 1171, 1179 (2005) (citing Mohan v. Norris, 386 Md. 63, 66-67, 871 A.2d 575, 577 (2005); Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80-81 (2004)).
In a relatively recent opinion, we explained several principles of statutory construction that are pertinent also to this case:
Lockshin v. Semsker, 412 Md. 257, 274-76, 987 A.2d 18, 28-29 (2010) (internal citations omitted). We highlight one additional principle for present purposes—that "[s]tatutes in derogation of the common law are strictly construed, and it is not to be presumed that the [L]egislature by creating statutory assaults intended to make any alteration in the common law other than what has been specified and plainly pronounced." Cosby v. Dep't of Human Res., 425 Md. 629, 645, 42 A.3d 596, 606 (2012) (quoting Breslin v. Powell, 421 Md. 266, 287, 26 A.3d 878, 891 (2011)) (alterations in original) (internal quotation marks omitted).
Our analysis begins with a brief retrospective on the history of Maryland's wrongful death statute. We discussed previously the origins of our wrongful death statute in Walker v. Essex:
318 Md. 516, 522, 569 A.2d 645, 648 (1990) (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 127, at 945 (5th ed.1984)) (citations omitted). The portion of the 1852 enactment most pertinent to this case contained language taken directly from the Lord Campbell's Act of England:
1852 Md. Laws ch. 299; cf. Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 761 (2008) (quoting the language
The Legislature changed the statute in 1973 when, as part of what has become a longstanding Code revision effort, the statute was moved from Article 67 to Title 3, Subtitle 9, of the Courts and Judicial Proceedings Article. Under the 1973 iteration, "[a]n action may be maintained against a person whose wrongful act causes the death of another," and "wrongful act" was defined as "an act, neglect, or default . . . which would have entitled the party injured to maintain an action and recover damages if death had not ensued." Md.Code (1974, 2013 Repl.Vol.), Courts and Judicial Proceedings Article §§ 3-901(e), 3-902(a). That language remains to this day.
The 1973 changes to the statute were made for style and organization purposes, not to alter the meaning of the statute, as is the usual goal of Code revision. See 1973 Md. Laws Spec. Sess. 169, Revisor's Note (stating that "[t]he definition of `wrongful act' is derived from Art. 67, § 1," and is "placed at the beginning of the subtitle for better organization"); see also William H. Adkins, II, Code Revision in Maryland: The Courts and Judicial Proceedings Article, 34 Md. L.Rev. 7, 30 (1974) (stating that the revision of the wrongful death statute "involves only style and arrangement changes in its incorporation of former article 67").
The statute contains also a time limitation provision on bringing a wrongful death claim, which the Legislature enlarged on three subsequent occasions. The original limitation in the 1852 enactment was twelve months, but it was extended later to eighteen months, then to two years, and eventually to three years to bring it "in uniformity with that of other negligence actions." Waddell v. Kirkpatrick, 331 Md. 52, 55-56 & n. 4, 626 A.2d 353, 354-55 & n. 4 (1993). The relevant limitations provision for present purposes now reads, in pertinent part, "an action under this subtitle shall be filed within three years after the death of the injured person." § 3-904(g)(1).
The tension point of the first question before us is the language of the wrongful death statute's definition of a "wrongful act." In the trial court, Dr. Alizadeh moved to dismiss the Beneficiaries' complaint on the grounds that a wrongful death claim requires the existence
In granting Dr. Alizadeh's motion and finding that the wrongful death action was time-barred, the trial court relied on Benjamin v. Union Carbide Corp., 162 Md.App. 173, 873 A.2d 463 (2005), aff'd sub nom. Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 904 A.2d 511 (2006), as well as Binnix v. Johns-Manville Prods. Corp., 593 F.Supp. 1180 (D.Md.1984), and Mills v. Int'l Harvester Co., 554 F.Supp. 611 (D.Md.1982).
The Beneficiaries urge us to reverse the Circuit Court's ruling and to justify that result by holding that, based on the plain language of the wrongful death statute, the ability to bring a wrongful death claim is not conditioned on the decedent's ability to bring timely a negligence claim at the time of her death. In support of that argument, the Beneficiaries assert the following: (1) Maryland's wrongful death statute created a new cause of action, not one derivative from the decedent's negligence action; (2) the three-year timeliness provision of § 3-904(g)(1) is the only time limitation applicable to wrongful death actions; and, (3) the definition of "wrongful act" in § 3-901(e) is irrelevant to answering the question of whether a wrongful death suit must be brought within a certain time after the decedent's death.
Dr. Alizadeh ripostes that a wrongful death claim is not a purely separate action from the underlying or inchoate medical negligence claim, and that the Beneficiaries fail to read the language of the wrongful death statute's timeliness provision in the context of the whole statute.
The language of § 3-901(e), when read in the context of the statutory scheme, is ambiguous. The parties each claim that the plain language of the definition of "wrongful act" supports their interpretation of the statute. On the one hand, the Beneficiaries seek to persuade us that to adopt Dr. Alizadeh's "plain meaning" argument would be to engraft impermissibly the words "on the date of death" into the statute. On the other hand, Dr. Alizadeh attempts to persuade us that to adopt the "plain meaning" interpretation urged by the Beneficiaries would render the definition's reference to death superfluous, and would require us to re-write impermissibly "if death had not ensued" as "at any point in time." Neither approach is clearly correct. Rather, the dueling interpretations serve quintessentially to highlight the ambiguity in the statute's language. See Reier v. State Dep't of Assessments & Taxation, 397 Md. 2, 26-27, 915 A.2d 970, 985 (2007) ("It strikes us that the competing parties' arguments present `two . . . reasonable alternative interpretations of the statute,' making the statute ambiguous." (quoting Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004))). Because we find the language ambiguous on its face, we look to sources outside of the statute's plain text for indications of the Legislature's intent.
The Legislature has left a legislative record without any explicit indications of
In the absence of any explicit explanation of intent from the Legislature, we look, "[i]n resolving ambiguities," to the statute's "general purpose." Lockshin, 412 Md. at 276, 987 A.2d at 29. In the original enactment, our wrongful death statute was titled "An act to compensate the families of persons killed by the wrongful act, neglect or default of another person." 1852 Md. Laws ch. 299. That the purpose of the act was to compensate the families of the decedents, as opposed to the estates of the decedents, is somewhat telling. As the Beneficiaries point out, we have long held that the Legislature intended the wrongful death statute to be a new cause of action, separate and independent largely from the decedent's own negligence or other action or a survival action, meant to preserve an action the decedent had the ability to bring before her death. We explained this distinction:
Stewart v. United Elec. Light & Power Co., 104 Md. 332, 341, 65 A. 49, 53 (1906) (quoting Tucker v. State ex rel. Johnson, 89 Md. 471, 479, 43 A. 778, 780-81 (1899)). Thus, the wrongful death statute was enacted to allow "a spouse, parent, or child, or a secondary beneficiary who was wholly dependent on the decedent, to recover damages for his or her own loss accruing from the decedent's death." Eagan v. Calhoun, 347 Md. 72, 82, 698 A.2d 1097, 1102 (1997).
Dr. Alizadeh argues that a wrongful death action is more derivative of the decedent's own action. Because the two actions are so connected, Dr. Alizadeh continues, we should be compelled to conclude that, if the statute of limitations would operate to bar the decedent's claim before she died, a wrongful death claim filed subsequent to her death lacks the predicate "wrongful act" required by § 3-902(a) (and defined in § 3-901(e)). Dr. Alizadeh points to the following passage from our decision in Eagan as support for the close connection between the two actions: "It follows from the fact that the action is a personal one to the [wrongful death] claimant that the claimant is ordinarily subject to any defense that is applicable to him or her, whether or not it would have been applicable to the decedent." 347 Md. at 82, 698 A.2d at 1102.
Contrary to Dr. Alizadeh's re-purposing of that passage, what we said in Eagan serves actually to highlight the distinction between the decedent's claim and a subsequent wrongful death claim. The point we were making in Eagan is that certain defenses may bar a wrongful death claim even if the same defenses would not have barred a claim filed by the decedent before
Dr. Alizadeh emphasizes our prior treatment of defenses (other than the statute of limitations) to support the argument that the connection between a wrongful death claim and the decedent's underlying negligence claim compels a conclusion that the decedent must have retained a viable claim at the time of death. In this regard, Dr. Alizadeh points out that we have held previously that, where certain defenses would bar a decedent's claim, a wrongful death claim brought by the decedent's surviving relatives is also barred. See, e.g., Frazee v. Balt. Gas & Elec. Co., 255 Md. 627, 258 A.2d 425 (1969) (contributory negligence); Balt. & Potomac R.R. v. State ex rel. Abbott, 75 Md. 152, 23 A. 310 (1892) (assumption of risk); Smith v. Gross, 319 Md. 138, 571 A.2d 1219 (1990) (parental immunity); State ex rel. Bond v. Consol. Gas, Elec. Light & Power Co., 146 Md. 390, 126 A. 105 (1924) (no privity of contract between decedent and manufacturer).
Dr. Alizadeh relies heavily and especially on our treatment of the defense of release to carry the day here. The release of a negligence claim by the decedent can bar surviving family members from bringing later a wrongful death action. State ex rel. Melitch v. United Rys. & Elec. Co., 121 Md. 457, 88 A. 229 (1913). Relying on Melitch, Dr. Alizadeh argues that a release is akin to the statute of limitations because both defenses stem from conduct of the decedent occurring after commission of the underlying negligence. A release is distinguishable, however, because a decedent who executes a release has acted affirmatively and purposefully to extinguish the underlying claim. This is different from a statute of limitations defense where there may be no evidence necessarily that the decedent intended to allow the statute of limitations to run out on her claim.
There is an additional reason why our holding in Melitch does not compel a conclusion that the Legislature intended for a wrongful death claim to hinge on whether the decedent had a viable claim at the time of death. When we held that a release by the decedent barred the wrongful death claim brought in Melitch, we relied heavily on the reasoning of a number of courts in other jurisdictions that, as Professor Prosser pointed out, held that a release should bar a wrongful death action for fear of possible double recovery. Keeton et al., supra, § 127, at 955. Fear of double recovery
It is not wholly incorrect to state that a wrongful death claim is derivative of the decedent's claim in some sense. The two actions stem from the same underlying conduct, which must have resulted in the decedent having a viable claim when she was injured. That connection, however, does not compel the conclusion that all defenses applicable to the decedent's claim prior to her death would preclude necessarily maintenance of a wrongful death claim after the decedent's death. That the Legislature's purpose was to create a new and independent cause of action when it passed the wrongful death statute suggests that it did not intend for a statute of limitations defense against the decedent's claim to bar consequently a subsequent wrongful death claim.
In addition to the general purpose of the statute, we look also to "other relevant sources intrinsic and extrinsic to the legislative process" to help resolve an ambiguity in the language of the relevant statute. Lockshin, 412 Md. at 276, 987 A.2d at 29. Both parties argue that the weight of authority from other jurisdictions supports their respective interpretations of the statutory language here.
Our review of the cases offered by the parties (and other cases we found) reveals that courts in many jurisdictions have considered the question of whether a decedent's failure to bring a timely negligence claim precludes a subsequent wrongful death claim. Of course, the more useful cases, for our purposes, are those in which courts interpreted wrongful death statutes with the same or similar language to that in Maryland's wrongful death statute.
In reviewing the cases from other jurisdictions interpreting language similar to
Courts in several other jurisdictions reached the opposite conclusion. Nelson v. Am. Nat. Red Cross, 26 F.3d 193 (D.C.Cir.1994); Miller v. United States, 932 F.2d 301 (4th Cir.1991) (applying Virginia law); Drake v. St. Francis Hosp., 560 A.2d 1059 (Del.1989); Lambert v. Vill. of Summit, 104 Ill.App.3d 1034, 60 Ill.Dec. 778, 433 N.E.2d 1016 (1982); Mason v. Gerin Corp., 231 Kan. 718, 647 P.2d 1340 (1982); Kelliher v. N.Y. Cent. & H.R.R. Co., 212 N.Y. 207, 105 N.E. 824 (1914); Riley v. Brown & Root, Inc., 836 P.2d 1298 (Okla.1992); Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex.1992); Miller v. Luther, 170 Wis.2d 429, 489 N.W.2d 651 (Ct.App.1992); Edwards v. Fogarty, 962 P.2d 879 (Wyo.1998).
Two differences underlying the split of authority are noteworthy and compelling. First, courts in those jurisdictions holding that a wrongful death action is not contingent on the decedent's filing or ability to file a timely negligence claim before death tend to interpret their wrongful death statute, as we do in Maryland, as creating a new and independent cause of action. See, e.g., Frongillo, 788 P.2d at 103 ("[I]n Arizona, the survivors' legal right is not a derivation from nor a continuation of claims which formerly existed in the injured party, but instead an independent claim which provides recovery for damages sustained by the survivors upon the death of the party injured." (quoting James v. Phx. Gen. Hosp., 154 Ariz. 594, 744 P.2d 695, 704 (1987))); Gramlich, 640 S.W.2d at 186 ("The action for wrongful death is an action separate and distinct from the action for injuries to the decedent."). This is also reflected in the Restatement (Second) of Torts:
§ 899 cmt. c (1979).
Conversely, a number of those jurisdictions holding that a wrongful death claim is contingent on the decedent's bringing or ability to bring a timely negligence claim prior to death have a less distinct and comparable wrongful death statute to Maryland's statute. See, e.g., Russell, 841 S.W.2d at 347 ("`The statutory beneficiaries of a deceased . . . have the same substantive rights to recover as the deceased would have had . . . .'" (quoting Vassallo v. Nederl—Amerik Stoomv Maats Holland, 162 Tex. 52, 344 S.W.2d 421, 424 (1961))); Miller v. United States, 932 F.2d at 303 ("Virginia's wrongful death statute does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent's claim for any personal injury that caused death.").
Because we have long held that Maryland's wrongful death statute created a new and independent cause of action, we are inclined to find more persuasive the reasoning of those other courts' cases holding that a wrongful death claim is not contingent on the decedent's ability to bring a timely claim before death.
The second major difference underlying the split of authorities is their respective interpretations of the practical outcome of holding that the wrongful death claim is barred. This is an important consideration in our effort to interpret the language of our wrongful death statute because we must weigh "the relative rationality and legal effect of various competing constructions." Lockshin, 412 Md. at 276, 987 A.2d at 29. Some courts in those jurisdictions holding that a wrongful death claim is not contingent on the decedent's ability to bring a timely claim before death reasoned that it would be illogical to allow expiration of a statute of limitations on the underlying claim to bar a wrongful death claim before the latter claim accrues. See, e.g., Miller v. Estate of Sperling, 766 A.2d at 744-45 (stating that "an unacceptable paradox," would exist where "a wrongful death claim could effectively be time barred before the death itself"); Hoover's Adm'x, 33 S.E. at 225 (stating that because the action does not accrue until death, "`to say . . . that where the person injured dies one year and two days after being injured no action can be maintained by the personal representative is to go in the face of the statute'" (quoting Louisville, Evansville & St. Louis R.R. Co. v. Clarke, 152 U.S. 230, 238, 14 S.Ct. 579, 580-81, 38 L.Ed. 422 (1894))).
This reasoning is persuasive. We agree that it would be illogical for, by operation of a statute of limitations that applies to the decedent's separate claim, a wrongful death claim to be time-barred before it can accrue. We do not interpret the language of Maryland's wrongful death statute as intending such a result because "the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense." Lockshin, 412 Md. at 276, 987 A.2d at 29.
We do not find these arguments persuasive for two reasons. First, allowing wrongful death claims to proceed under such circumstances would not thwart the statute of limitations for medical negligence claims because that statute applied to the decedent's claim, not the wrongful death claimant's independent cause of action and its separate limitations provision. The only time limitation in our wrongful death statute is the requirement that the claimant bring the action within three years of the decedent's passing. § 3-904(g)(1).
In light of the Legislature's purpose of creating a new and independent cause of action when it passed the Maryland wrongful death statute and the reasoning of many of those courts interpreting similar statutes, we think that, by requiring that a wrongful act be one "which would have entitled the party injured to maintain an action and recover damages if death had not ensued," the Legislature did not intend for a wrongful death action to be barred by expiration of the statute of limitations applicable to the decedent's underlying claim. Accordingly, we hold that a wrongful death claimant's right to sue is not contingent on the decedent's ability to file a timely negligence claim prior to her death.
We recognize that our holding here may conflict or be inconsistent with a few statements made in earlier opinions by this Court (all of which, however, were dicta), as well as the case law relied on by the trial court in this case. In Philip Morris v. Christensen, 394 Md. 227, 905 A.2d 340 (2006), we stated, in dicta, that the determination of whether a "wrongful act" existed "is made at the time of the decedent's death." 394 Md. at 268, 905 A.2d at 364. That statement depended on a footnote in Smith v. Gross, 319 Md. 138, 571 A.2d 1219 (1990), where, also in dicta, we stated (with understandable equivocation) that "Maryland law appears to be that if a decedent could not have brought a cause of action at the time of death, the wrongful death action similarly is precluded." 319 Md. at 143 n. 4, 571 A.2d at 1221 n. 4 (emphasis added). Because the question in the present case was not central to either of those cases, we did not have then the benefit of extensive briefing and argument by the
Moreover, upon considered reflection of the case law, we conclude that the statement included in footnote 4 of Smith, and later appropriated in Philip Morris, was unfounded at the time of its adoption. The language of footnote 4 in Smith was gleaned from Burke v. United States, 605 F.Supp. 981, 988 (D.Md.1985). The cases cited in Burke do not support that court's assertion that Maryland law at the time "appears" to preclude a wrongful death claim if the decedent could not have brought a cause of action at the time of death. The first case relied on by the Burke court is our decision in Melitch, which, as discussed supra, does not justify such an observation. The second and third cases cited are inapposite. In State ex rel. Cox v. Maryland Electric Railways Co., 126 Md. 300, 95 A. 43 (1915), the Court held that a wrongful death claim should be dismissed because the wrongful death claimants settled previously with the defendant in a separate case. In State ex rel. Bond v. Consolidated Gas, Electric, Light & Power Co., 146 Md. 390, 126 A. 105 (1924), we held that a wrongful death claim should be dismissed because the decedent lacked privity of contract with the defendant manufacturer and, thus, never had a claim in the first instance. Neither of those cases considered whether the decedent had a viable cause of action before death. The fourth case mentioned in Burke is Mills v. International Harvester Co., 554 F.Supp. 611 (D.Md.1982), which was relied on also by the Circuit Court in the present case. Mills is distinguishable. In Mills, the decedent was injured fatally by a tractor more than eleven years after it was sold to him, and more than seven years after the four-year statute of limitations applicable to the underlying breach of warranty claim ran. 554 F.Supp. at 612. Moreover, we do not find the reasoning of Mills persuasive.
To the extent that our statements in Philip Morris v. Christensen and Smith v. Gross appear inconsistent or in conflict with our holding in the present case, they are disavowed. Additionally, we are not persuaded by the other two cases on which the Circuit Court relied when it granted Dr. Alizadeh's motion to dismiss. Binnix, like Mills, is distinguishable. The decedent in Binnix died before the statute of limitations on his claim expired, but the defendant argued that the family's wrongful death action should be barred because it was filed more than three years after the statute of limitations on the decedent's claim accrued. 593 F.Supp. at 1183. That is different materially than the facts of this case. Moreover, we are not persuaded that we should decide this case in favor of Dr. Alizadeh based on the Binnix court's statement that "a limitations bar on the injured person's cause of action will extinguish" a subsequent wrongful death action "[i]n some cases," but "[i]n some cases, it will not." Id. That statement was not necessary to the Binnix court's holding (i.e., dicta) and the only case discussed there in support of that assertion is Mills, which we have explained earlier why it is unpersuasive. Id.
Nor are we persuaded by the Court of Special Appeals's decision in Benjamin v. Union Carbide. In that case, the intermediate appellate court stated that the definition of "wrongful act" in § 3-901(e) means that "the decedent must have been able to maintain a compensable action as of the time of death."
The second question of statutory interpretation with which we engage today is one that can be decided based on the plain meaning of the language of the pertinent statute. Dr. Alizadeh asks us to hold that § 5-109 of the Courts and Judicial Proceedings Article of the Maryland Code, which contains the statute of limitations applicable to medical negligence claims, should apply to wrongful death claims based on alleged medical negligence and should operate to bar the Beneficiaries' action in this case. Dr. Alizadeh argues, because § 5-109 is tied to the Health Care Malpractice Claims Act, Md.Code (1974, 2013 Repl.Vol.), Courts and Judicial Proceedings Article § 3-2A-01, et seq., which applies to wrongful death actions based on medical negligence as the "wrongful act," and in light of the legislative history and language of § 5-109, that section should apply directly to a wrongful death action based on medical negligence.
We are not persuaded. The plain language of § 5-109 reads:
In construing language referring to damages regarding an action for "personal injury" in a since-amended version of § 11-108(b) of the same Article, we concluded that "[t]he term `personal injury' or `injury' normally connotes a physical injury to a victim," and that a statute referring to damages for "injury" normally "do[es] not include damages recoverable in a wrongful death action." United States v. Streidel, 329 Md. 533, 539-40, 620 A.2d 905, 909 (1993), superseded by statute, 1994 Md. Laws Ch. 477. Moreover, we pointed out that the General Assembly used language previously such as "`personal injury, death' or `personal injury, or death,' or `personal injury, including death'" when it wanted to "encompass both damages for personal injury and damages for wrongful death." Streidel, 329 Md. at 540, 620 A.2d at 909. Although the General Assembly later amended § 11-108 to make it applicable explicitly to wrongful death actions, our reasoning in Streidel remains valid. The Legislature has not added any similar language referring to "death" or "wrongful death" in § 5-109. Because the plain language of § 5-109 mentions only "injury," and makes no reference to "death" or "wrongful death," we hold that the Legislature did not intend for that section to apply to a wrongful death action.
When the Beneficiaries filed this wrongful death action, they did so within the
