RICHARD D. BENNETT, District Judge.
Plaintiffs Janet D. Leichling, Dawn M. Rose, Gregory A. Leichling, Catherine L. Timms, Helen Catterton, and John R. Leichling (collectively, "Plaintiffs") bring this diversity action against Defendant Honeywell International, Inc. ("Honeywell" or "Defendant"), alleging various common law tort claims stemming from the death of John G. Leichling (the "Decedent"). Specifically, the Plaintiffs claim that the Decedent's 2012 death from lung cancer was the direct result of his prolonged exposure to hazardous chromium ore processing residues at the Dundalk Marine Terminal. Currently pending is Defendant's Motion to Dismiss (ECF No. 11).
This Court accepts as true the facts alleged in the plaintiffs' complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). This action arises out of the alleged exposure of the Decedent, John Leichling, to hazardous chromium ore processing residues ("COPR") during his employment at the Dundalk Marine Terminal (the "DMT"). Second Amend. Compl. ¶¶ 1, 6. The Decedent worked at the DMT, a large and active marine shipping terminal, from 1973 through 2001. Id. ¶ 6. He died on September 11, 2012 from lung cancer. Id.
From 1854-1985, Defendant Honeywell
Beginning in the 1950s, Honeywell used COPR from the Fells Point chromium plant as fill to reclaim land from the Patapsco River to be used by the DMT. Id. ¶¶ 14-16; see also Def.'s Mot. to Dismiss Attach. A, 2, ECF No. 11-2 ("Consent Decree").
Plaintiff Janet Leichling is the surviving spouse of the Decedent, John Leichling, as well as the personal representative of his estate. Id. ¶ 1. Plaintiffs Dawn Rose, Gregory Leichling, Catherine Timms, Helen Catterton, and John Leichling are the adult children of the Decedent. Id. ¶ 2. Plaintiffs allege that the Decedent worked on portions of the DMT that sat directly above the COPR-filled reclaimed land. Id. ¶ 37. During his nearly thirty-year career at the DMT, the Decedent was allegedly repeatedly exposed to hexavalent chromium in the COPR via inhalation, ingestion, and dermal contact. Id. ¶¶ 37, 40. Plaintiffs claim that this prolonged exposure directly caused the Decedent's lung cancer, from which he died in 2012. Id. ¶¶ 46. 50.
Plaintiffs filed the subject action in the Circuit Court for Baltimore City, Maryland on May 16, 2013, asserting claims of strict liability, intentional and negligent misrepresentation, negligence, premises liability, loss of consortium, and wrongful death. See Compl., ECF No. 2; see also Amend. Compl., ECF No. 4. Honeywell timely removed the case to this Court pursuant to 28 U.S.C. § 1332. See Notice of Removal, ECF No. 1. Honeywell subsequently moved to dismiss. See Mot. to Dismiss, ECF No. 11. While that motion was pending, Plaintiffs filed a Second Amended Complaint (ECF No. 19).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The Supreme Court's recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), "require that complaints in civil actions be alleged with greater specificity than previously was required." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).
As with a statute of limitations, a defendant may raise the statute of repose as a bar to the plaintiff's claims as an affirmative defense. See Carlucci v. Han, 886 F.Supp.2d 497, 514-15 (E.D. Va. 2012) (applying a statute of repose to bar the plaintiff's claims); see also Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005) (permitting a statute of limitations argument as an affirmative defense). As a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure "tests the sufficiency of the complaint," that motion "generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred." Goodman v. Praxair, Inc. 494 F.3d 458, 464 (4th Cir. 2007). To properly raise such a defense in a motion to dismiss, the complaint must include allegations supporting this time bar. Id. In other words, a district court will reach a statute of repose or limitations defense if the "time bar is apparent on the face of the complaint." Dean, 395 F.3d at 474 (citing Bethel v. Jendoco Construction Corp., 570 F.2d 1168 (3d Cir. 1978)).
Honeywell moves to dismiss the subject Second Amended Complaint on two grounds. First, it argues that Maryland's twenty-year statute of repose, Md. Code Ann., Cts. & Jud. Proc. § 5-108(a), serves as an absolute bar to Plaintiffs' claims. Second, Honeywell contends that, even if the statute of repose does not apply, each count fails to state a claim for which relief may be granted. As Plaintiffs' claims are time-barred under the statute of repose, this Court need not reach Defendant's alternative ground for dismissal.
Under Maryland's statute of repose,
Md. Code Ann., Cts. & Jud. Proc. § 5-108(a). In other words, this "blanket prohibition" applies when "(1) the plaintiff's injuries . . . resulted from the alleged defective and unsafe condition of `an improvement to real property; and (2) 20 years . . . have passed since the `entire improvement first bec[ame] available for its intended use." Rose v. Fox Pool Corp., 643 A.2d 906, 910 (Md. 1994) (quoting § 5-108(a)).
Honeywell argues that Plaintiffs' claims satisfy both conditions. First, Plaintiffs assert claims for personal injuries and wrongful death allegedly stemming from an improvement to real property—the Dundalk Marine Terminal expansion on land reclaimed through COPR fill. Second, Honeywell contends that more than twenty years have passed since that improvement became available for its intended use. In response, Plaintiffs do not dispute the latter point.
Although § 5-108 does not define "improvement," Maryland courts define this term as:
Rose, 643 A.2d at 918 (quoting Black's Law Dictionary, at 757 (6th ed. 1990)); accord Hickman v. Carven, 784 A.2d 31, 35-36 (Md. 2001); see also Allentown Plaza v. Suburban Propane, 405 A.2d 326, 332 (Md. 1979) (internal citation omitted) (explaining that the common sense definition of the term "improvement" is "everything that permanently enhances the value of premises for general uses."). Under Maryland's principles of statutory construction, courts should apply the common sense, ordinary meaning of the term "improvement." Pippin v. Potomac Elec. Power Co., 132 F.Supp.2d 379, 390 (D. Md. 2001).
To construe "improvement" according to its common sense meaning, courts look to "the nature of the addition of betterment, its permanence and relationship to the land and its occupants, and its effect on value and use of the property . . ." Rose, 643 A.2d at 918; accord Potomac Elec. Power Co., 132 F. Supp. 2d at 390 (quoting Lewis v. Weldotron Corp., 61 F.Supp.2d 435, 437 (D. Md. 1999)). Further, Maryland's statute of repose encompasses both the improvement as a whole and any crucial or integral components. Hickman, 784 A.2d at 37-38. When the project itself is an improvement to real property, those integral components also constitute improvements. Id. at 38; see also Pippin v. Reilly Industries, Inc., 64 F. App'x 382, 386 (4th Cir. 20013) (emphasis in original) (holding that, to be an integral component, the "item [need not] be the only means of achieving a particular purpose . . .").
In this case, Plaintiffs' claims arise from the Decedent's alleged prolonged exposure to COPR (and hexavalent chromium) while working at the DMT. Honeywell used the COPR in question as fill to effectuate the expansion of the DMT. With the COPR fill, former river and marshland was transformed into an active and thriving marine shipping terminal. This transformation increased the commercial value of the property. Applying Maryland's "common sense" approach, the expansion of the DMT clearly constitutes an "improvement to real property." Moreover, while other fill materials presumably exist, Maryland law does not demand that COPR be the only possible material. See Reilly Industries, 64 F. App'x at 386. The COPR fill was an integral component of the DMT expansion, as any expansion requires land on which to build. As an essential component, the COPR fill falls within the ambit of § 5-108(a).
Plaintiffs agree that Maryland courts employ a "common sense" approach to interpreting the term "improvement" under the § 5-108(a), but contend that this term categorically excludes a material, such as the COPR fill, that is toxic and produces hazardous side effects. The statute of repose, however, bars causes of actions related to any improvement in real property,
Twelve years later, the General Assembly again amended the statute of repose to address the increase of civil actions filed by victims of asbestos and its related diseases. Burns, 66 A.3d at 1192-93. Under § 5-108(d), the statute of repose does not extend to "a cause of action against a manufacturer or supplier for damages for personal injury or death caused by . . . a product that contains asbestos," where the injury "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 product that contains asbestos to an improvement to real property[.]" § 5-108(d)(2)(ii). This amendment makes no mention of hexavalent chromium-related injuries. The statutory exclusion of asbestos-related injuries from the statute of repose necessarily implies that the General Assembly intended the statute to protect "manufacturers of products other than those containing asbestos . . ." Rose, 643 A.2d at 917.
Plaintiffs' argument essentially asks this Court to expand the exception of § 5-108(d) from solely asbestos exposure to include exposure to hexavalent chromium. Yet, the General Assembly specifically did not address hexavalent chromium when it amended the statute of repose to exclude asbestos. After all, the "cardinal rule of statutory construction is to effectuate and carry out legislative intent." Rose, 643 A.2d at 909. As this Court has explained, Maryland principles of statutory construction thus prohibit the "insert[ion] or delet[ion] [of] words to make a statute express an intention different from its clear meaning." Harford Mut. Ins. Co. v. Potomac Elec. Power Co., Civ. A. No. RDB-02-2412, 2003 WL 23304961, at *5 (D. Md. Sept. 4, 2003) (quoting Hines v. Potomac Elec. Co., 504 A.2d 632, 634 (Md. 1986)). Under the maxim expressio unius est exclusion alterius,
In sum, Maryland's statute of repose, § 5-108(a), applies to bar Plaintiffs' claims in the subject action. Specifically, the COPR fill alleged to have produced the claimed injuries was an integral component of the expansion of the DMT, an improvement to real property. As the alleged injuries arose more than twenty years after the expanded DMT became available for use, Honeywell is entitled to the protection of § 5-108(a).
For the reasons stated above, Defendant Honeywell's Motion to Dismiss (ECF No. 11) is GRANTED WITH PREJUDICE. Plaintiffs' claims are time-barred under Maryland's statute of repose, Md. Code Ann., Cts. & Jud. Proc. § 5-108(a), thus this case is DISMISSED WITH PREJUDICE.
A separate Order follows.
Buechler, 846 F. Supp. 2d at 415 (emphasis in original) (quoting 6 Charles Alan Wright et al., Federal Practice and Procedures § 1476, at 638 (2010 ed.)) In this case, Honeywell argues that the Second Amended Complaint reflects the same deficiencies as the First Amended Complaint (ECF No. 4). Accordingly, this Court will consider the pending Motion as addressing the Second Amended Complaint.