Twenty Year Statute of Repose Held Applicable for Defendants Who Did Not Have a Possessory Interest in Real Property and for Injuries Caused After Asbestos Installation

In Burns v. Bechtel Corp., 212 Md.App. 237, the Court of Special Appeals of Maryland held that the section 5-108 of the Courts and Judicial Proceedings Article (“Statute of Repose”) applies only to defendants who are in actual possession or control of real property when an alleged injury occurs.  The court further held that the exception to repose in subsection (d)(2)(ii) of the Statute of Repose is inapplicable for asbestos-related injuries caused after the installation, affixation, or installation of asbestos products

The case arose when Jean and Robert Burns sued Bechtel Corp. (“Bechtel”) in the Baltimore City Circuit Court on November 5, 2009.  Burns’ complaint alleged that during the 37 years that Mr. Burns worked for PEPCO, Bechtel was employed by PEPCO as a general contractor and given “absolute control” over power station construction projects that included asbestos insulation in the designs.   Mr. Burns further alleged that he was exposed to the asbestos insulation, causing his August 2009 mesothelioma diagnosis.

The Circuit Court granted Bechtel’s motion for summary judgment on the grounds that Burns’ claims were barred by the Statute of Repose providing repose for defendants against certain claims from the defective and unsafe condition of an improvement to real property.  On appeal, Burns raised two issues.

Burns first argued that Bechtel was excluded from repose because Bechtel retained complete and absolute possession over all aspects of the job sites in question, and was, therefore, in actual possession and control of the construction properties.  The Court of Special Appeals refuted this contention for two reasons.  First, subsection (d)(2)(i) of the Statute of Repose implies that a proprietary interest is required to impute liability.  Burns’ allegation that Bechtel merely controlled the project, and not the premises, was insufficient to demonstrate a possessory or proprietary interest in the properties.  The court further noted that the language of subsection (d)(2)(i) of the Statute of Repose mirrors the language of the common law principle of strict premises liability for abnormally dangerous activities.  Because common law strict premises liability extends only to owners and occupiers of land, the court reasoned that the General Assembly did not intend to extend liability.  The court, therefore, held that this exception to the Statute of Repose’s did not apply to Bechtel.

Burns’ also argued that the asbestos materials installed by Bechtel were not “improvements” contemplated by subsection (a) of the Statute of Repose.  The Court of Special Appeals found this argument unpersuasive because of the enactment of subsection (d)(2)(ii) of the Statute of Repose.  As the court explained, subsection (a) of the Statute of Repose provides a general shield from liability for death or personal injury that occurs more than twenty years after the defective and unsafe improvement to real property.  Subsection (d)(2)(ii) was later added by the legislature to provide an exception to remove this shield of liability for personal injury or death caused by exposure to asbestos dust or fibers shed prior to or during “the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property.”  Because Burns’ alleged injury did not occur prior to or during the affixation, application, or installation of the asbestos products, this exception was inapplicable to Bechtel.  The court, therefore, concluded that the protections of subsection
(a) of the Statute of Repose applied to Bechtel.

Because Burns’ complaint was filed beyond the twenty-year statute of repose, the Court of Special Appeals found that the claims were time-barred.  The trial court’s award of summary judgment in favor of Bechtel was, accordingly, affirmed.