Brooks, Patricia Dart

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Recent Developments: Trimper v. Porter-Hayden: Statute of Limitations in Asbestos-Related Wrongful Death Actions

University of Baltimore School of Law

University of Baltimore Law ForumVolume 16Number 3 Spring, 1986 Article 81986Recent Developments: Trimper v. Porter-Hayden:Statute of Limitations in Asbestos-RelatedWrongful Death ActionsPatricia Dart BrooksFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationBrooks, Patricia Dart (1986) "Recent Developments: Trimper v. Porter-Hayden: Statute of Limitations in Asbestos-Related WrongfulDeath Actions," University of Baltimore Law Forum: Vol. 16 : No. 3 , Article 8.Available at: http://scholarworks.law.ubalt.edu/lf/vol16/iss3/8Leasing, Inc., 416 U.S. 663 (1974). The court then ordered the forfeiture of the Beechcraft to the United States. Both Total Time and Sundance appealed the forfeirure by protesting that they were improperly denied a jury trial, that air-planes do not constitute forfeirure propeny and that there was insufficient evidence to allow the forfeiture. The court of appeals concluded that To-tal Time and Sundance, despite making timely requests for a trial by jury in their answers to the complaint, waived this right by failing to object to the district court's decision to try the case without a jury. Both defendants "vigorously participated" in the trial without mentioning their earlier re-quest for a jury uial. Id. at 951. The court relied on its ruling in Milner tI. Norfolk & WeslernRailwayCo., 643F.2d 1005(1981), which, according to the court, stood for the proposition that basic equitable principles did not "mandate a jury trial if the plaintiff was on notice that the uial court was plan-ning to adjudicate the dispositive issues of fact in the case and did not object." U.s. tI. 1966 Beechcrafc, 777 F.2d at 951, citing Miller, 643 F.2d at 10 11, n.l. Since Total Time and Sundance were aware of the court's plan, to allow the defendants to re-quest a jury and then "ambush the trial judge" on appeal would be unfair. 777 F.2d at 951, citing Palmer v. United States, 652 F.2d 893, 897 (9th Cir. 1981). Total Time next asserted that as an "in-nocent owner" it was exempt from the "broad sweep" of the forfeiture statutes. In Calero, the Supreme Court determined that an owner would not be subject to the forfeirure statutes wbere it was shown the owner was "not only uninvolved in and unaware of any wrongful activity, but that he had done all that could reasonably be expected to prevent the proscribed use of his property." 777 F.2d at 951. Seeright's behavior in the ca e at bar was determined to be unbusinesslike as well as unwise, par-ticularly in an area "such as outh Florida where drug trafficking through the use of private aircraft flouri hes." The "conscious indifference" on the part of eeright estab-lished that Total Time failed to do "all that it reasonably could to avoid having it prop-erty put to unlawful u e." 777 F.2d at 952. Therefore, the Fourth Circuit concluded that the district court did not err in deter-mining that Total Time wa not an inno-cent owner. The £inal argument on appeal involved the sufficiency of evidence produced at the uial by the government to support the for-feiture order. Based on the te timony of Montgomery that the Beecbcraft carried co-conspirators Gerant and Coddington, as 26-The Law Forum/Spring, /986 well as the cocaine, the court upheld the for-feiture of the Beechcraft. The Government argued that the Aerostar, while not involved in carrying cocaine, facilitated the drug conspiracy by transporting two of the con-spirator to the site of the deal and, there-fore, it was forfeitable under the tatute. The circuits are divided over whether 21 U.S.C. S881(aX4}, which subjects to forfeiture "all conveyances, including air-craft, vehicles, or ves els to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment" of controlled substances, may reach aircraft only carrying the con pirators to the trans-action site. The First, Ninth, and Tenth Circuits have held that §881(aX4) Jays down a per se forfeiture of certain items of contraband but not of vehicle used in the mere transportation of suspected conspir-ators. However, the Second, Fifth and Eleventh Circuits have resolved that for-feiture is proper when a vehicle only trans-ports the drug dealer to the exchange site. In aligning it elf with the laner view-point, the court looked (0 the legislative history of the statute, which directed that the intent of the provision was to allow for-feiture of property "only if there is a sub-stantial connection between the property and the underlying criminal activity." 777 F.2d at 952. The Fourth Circuit concluded that transporting conspirators to an ex-change site establishes a C sub (anrial con-nection between the conveyance and the criminal activity sufficient to justify an or-der of forfeiture." 777 F.2d at 953. It was further noted that the private airplane has become an important tool to drug traffick-ers, particularly by allowing for quick ar-rivals and departures, and makes their ap-prehension all the more difficult. The court's decision regarding the waiver of a jury trial shows a total di regard for the Federal Rules of Civil Procedure. Rule 38(d) states that after a proper request for a trial by jury has been made, all the parties involved must con ent before it can be with-drawn. Furthermore, Rule 39(aXl) stipu-lates that a withdrawal must be in writing or by verbal consent in open court and entered in the record. Some court hold that these rules are to be held in strict compliance and any waiver cannot occur unless within the precise terms of the rules. Palmer, 652 F.2d at 896. While some court hold that the e rule are not to be tTictIy construed, see e.g., Bass 'V. Hoagland, 172 F.2d 205, 209 (5th Cir. 1949) cere. denied, 388 U.S. 816 (1949), these courts, including the Fourth Circuit, seem to be ignoring the spirit of the rules. A right to a jury trial "occupies so firm a place in our history and jurispru-dence that any seeming curtailment of the right to jury trial should be scrutinized with (he utmost care." Dimick v. Schiedt, 293 U.S. 474, 485 (1934). How far the Fourth Circuit is willing to go to enforce 28 U.S.C. §881 remains to be seen. For now, owners of private vehi-cles need to establish step [0 ensure their property is not being used for illegal pur-poses or else risk being subject to forfeiture. A lack of knowledge of the criminal activ-ity is not sufficient under this recent de-cision. In addition, allowing ones property to be used only by the conspirators of crimes clearly jeopardizes that property. - Patricia A. Grace Trimper 'V. Porter-Hayden: STATUTE OF LIMITATIONS IN ASBESTO -RELATED WRONGFUL DEATH ACTIONS In an attempt to deal with the unique character of asbesto -related deaths and its effect on wrongful death and urvival ac-tions, the Court of Appeals of Maryland in Trimper tI. PortfJr-Haydm, 305 Md. 31, 501 A.2d 446 (1985), held that wrongful death actions for a be tos-related deaths accrue either upon the discovery of me link between death and exposure to asbestos or upon the date of death whichever occurs first. In Trimper two widows, Charlotte M. Trimper and Sylvia Sandberg, rued sepa-rate actions under the survival statutes for the wrongful deaths of their respective husbands alleging that the deaths of their husbands resulted from their exposure to asbesto and a best os dust. Both women ftled their claim within three years from the discovery of the connection between asbestos exposure and the deaths of tbeir husbands. The Circuit Court for Baltimore City dismissed both actions finding that the claims were time barred and each widow appealed to the court of special ap-peals where the cases were consolidated. Writ of Certiorari was i sued by the court of appeals before the court of pedal ap-peals had the opportunity to consider the matter. The que lion before the court was whether wrongful death and survival ac-tions for asbe to -related deaths are time barred when instituted more than three years after death or whether a discovery rule applies. The court considered the wrongful death claims apart from the sur-vival claims a they are dealt with in sepa-rate statutes. MD. CTS & JUD. PROC. CODE ANN. §3-904(g) (1984) deals with wrongful death and provides that an action for wrongful death shall be brought within three years after the death of the injured person. The appellants argued that where the decedent died not knowing that he was a victim of a wrong and that the wrong had caused his demise, the beneficiaries should have up to three years from the time they knew or should have known the cause of death, within which to bring an action for wrongful death. Just such a discovery rule was established in Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978), a latent disease case. The Trimper court distinguished the Harig case from Trimper, as the former was brought under MD. CTS. & JUD. PROC. CODE ANN. §5-l0l (1984) which is the general statute oflimitations and which provides that an action shall be filed within three years from the date of ac-crual of the cause of action. The court in Harig defined "accrual" as when a plain-tiff, "ascertains or through the exercise of reasonable care and diligence should have ascertained the nature and cause of his in-jury." 284 Md. at 83, 394 A.2d at 306. The court's definition of accrual was re-stricted to latent disease cases. The Trimper court contended that prec-edent precluded the court from applying a discovery rule to wrongful death actions. The rule in Maryland is, that since the wrongful death statute created a new liability not existing at common law, compliance with the period of limitations for such actions is a condi-tion precedent to the right to maintain the action. The period oflimitations is part of the substantive right of action. 305 Md. at 35, citing State v. Zitomer, 275 Md. 534, 542, 341 A.2d 789, 794 (1975), cert. denied, 423 U.S. 1076 (1976), citing Smith v. Westinghouse Electric Corp., 266 Md. 52, 55-56, 291 A.2d 452, 454 (1972); Dunnigan v. Coburn, 171 Md. 23, 25-26, 187 A. 881, 884 (1936); and State v. Parks, 148 Md. 477, 479-82, 129 A. 793, 795 (1925). The legislative intent behind the crea-tion of the wrongful death statute is abso-lutely clear and "there is no room for judi-cial interpretation." Trimper, 305 Md. at 36. Conversely, the survival statutes do not create a new cause of action unknown to common law, but merely alter the com-mon law under which certain actions may be brought on behalf of decedents. The statute provides that a cause of action at law, except slander, survives the death of either party. MD. CTS. & JUD. PROC. CODE ANN. §6-401(a) (1984). Limita-tions on survival actions are provided by the general statute of limitations. Appellants, as personal representatives, relying on Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981), which estab-lished discovery as the general test for ac-crual, argued to the court that the survival claims did not accrue until each woman knew or should have known of the condi-tion between her husband's exposure to as-bestos and the resulting diseases suffered by the decedents. In response to this argument, appellees argued that if no cause of action accrued until it was discovered after the decedents' respective deaths, then the decedents had no cause of action at the time of death and therefore no action may be brought on be-half of the decedents under the survival statutes. The court distinguished Poffenberger from the case at bar in that the former never dealt with an injured person who subsequently died either from the injury complained of or from other causes with-out having instituted a right of action for the injury. Rather, Poffenberger focused upon the injured person who discovered the wrong inflicted upon him while living but after the prescribed three years had ex-pired. The court also rejected appellees' argu-ment that appellants' claims necessarily fail if a discovery rule is applied. An injured party need not know that he has suffered a legally recognized wrong which has re-sulted in harm in order to have a complete cause of action. The court further con-tended that the discovery rule limits the period of time in which an injured plaintiff may bring an action for the wrong commit-ted, "but it does not change the time when a cause of action becomes conceptually complete." Trimper, 305 Md. at 42. Ac-cordingly, the court held that the decedents in these cases have a cause of action which survive their deaths. The court then turned to the question of how long the causes of action exist. Upon considering a series of case law dealing with statutory time bars to wrong-ful death and survival actions, from which no general principle regarding the same could be drawn, the court held that sur-vival actions must be brought within three years of the discovery of a link between the fatal disease and the exposure to asbestos. The court explicitly limited the application of the Qiscovery rule in survival actions to latent disease cases which are instituted initially as survival actions rather than wrongful death actions. The court sup-ported its decision by referring to the workers compensation statute dealing spe-cifically with latent occupational diseases. The statute contains a provision whereby an action for disability or death from pul-monary dust disease must be brought within three years from the date of disable-ment or death or the date on which the em-ployee or his dependent discovered the link between the disablement or death and his employment. MD. ANN. CODE art. 101, §26(a)(4) (1985). Thus considering the legislative intent of the wrongful death statute, the discovery rule established in Harig, and the workers compensation statute, the Trimper court concluded that in situations involving the latent development of disease, a cause of action accrues either when a person discov-ers or reasonably should have discovered the nature and cause of the injury, or at death whichever first occurs. Judgments of the Circuit Court for Baltimore City were affirmed. - Patricia Dart Brooks Mayor and City Council of Baltimore v.lndianapolis Colts, Inc.: THE DEMISE OF THE PUBLIC USE DOCTRINE In 1982, California acknowledged a sov-ereign's latent power to condemn a profes-sional sports franchise through eminent do-main. City of Oakland v. Oakland Raiders, 32 Cal. 3d 60,183 Cal. Rptr. 673, 646 P.2d 835 (1982). Recently in Mayor and City Council of Baltimore v. Indianapolis Colts, Inc., 624 F. Supp. 278 (D.Md. 1985), the City of Baltimore sought to test this power in an attempt to enjoin the Colts football franchise from relocating to Indianapolis. Prompted by ailing negotiations between the City and Colt's owner Robert Irsay, the Maryland Senate on March 27, 1984 passed emergency legislation authorizing the City of Baltimore to condemn the Colt's NFL franchise. In response, Mr. Irsay im-mediately began shipping all of the team's physical possessions to Indianapolis. Crews worked throughout the night of March 28, and by early morning the loaded May-flower vans had left Maryland. On March 30, 1984, the Maryland Leg-islature finalized Emergency Bill No. 1042, 1984 Md. Laws Ch. 6. Emergency Ordi-nance No. 32 was thereafter enacted by the city authorizing the condemnation of sport franchises. A condemnation petition was immediately filed in the Circuit Court for Baltimore City seeking to acquire the Colts by eminent domain. On April 2, 1984 the Colts removed the case to the federal district court on the basis of diversity jurisdiction. The law of eminent domain authorizes a sovereign to take property for public use without the owner's consent upon making just compensation. Nichol's on Eminent Domain (3rd ed. 1980) §1.l1 pp. 1-10. The majority of the case law defining the Spring, 19861The Law Forum-27 

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Recent Developments: Trimper v. Porter-Hayden: Statute of Limitations in Asbestos-Related Wrongful Death Actions

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