Avoiding Wrong Turns (Continued from page 21)
discussion of the applicable statutes of limitations. The Wrongful Death Act provides that
“an action under this subtitle shall be filed within three years after the death of the injured person,” with a single exception for cases of occupational disease. The limitations period specified in the Act has been described as substantive, rather than procedural in nature, and commencing the action within that period is a condi- tion precedent to the right to maintain the action. State v. Zitomer, 275 Md. 534, 542, 341 A.2d 789, 794 (1975); State to
use of Stasciewicz v. Parks, 148 Md. 477, 129 A. 793 (1925). The substantive nature of the three
year limitations period precludes exten- sion of the “discovery rule,” See Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 667, 680 (1981), to wrongful death actions, so as to extend the period for commencing the action beyond three years after the death of the injured per- son. Trimper v. Porter-Hayden, 305 Md. 31, 35-36, 501 A.2d 446, 448-49 (1985). The Court of Appeals has carved out a single exception to this general rule in cases where a defendant fraudulently keeps the beneficiaries in ignorance of the grounds for a wrongful death action, un-
der Md. Cts. & Jud. Procs Code Ann. § 5-203. Geisz v. Greater Baltimore Med. Ctr., 313 Md. 301, 545 A.2d 658 (1988). To avail themselves of § 5-203, the Court in Geisz required the plaintiffs to show that the defendant’s allegedly fraudulent statements were “in fact untrue and . . . made with a reckless disregard for their truth or falsity,” a standard illustrated in Brack v. Evans, 230 Md. 548, 187 A.2d 880 (1963). See Geisz, 313 Md. at 331- 32, 545 A.2d at 672-73. Because any defense against the dece- dent (such as contributory negligence or assumption of the risk) may be raised by a defendant in a wrongful death action, the practitioner must also consider whether the underlying limitations period had expired as of the time of death. In this regard, the statute defines “wrongful act” as “an act, neglect, or default . . . which would have entitled the party in- jured to maintain an action and recover damages if death had not ensued.” § 3- 901(e). Accordingly, if limitations has expired against the decedent prior to death for the wrongful act causing death, then no ac- tion for wrongful death may be maintained. Rivera v. Edmonds, 347 Md. 208, 216-17, 699 A.2d 1194, 1198-99 (1997) (“one first determines whether the [decedent’s] claim was time barred on the date of death. If the claim was not time barred on the date of death, then, under CJ § 3-904(g)(1), the wrongful death claimants have three years from the date of death within which to file the Lord Campbell’s action”).9
9
The Court of Appeals in Rivera left open the question of whether applying the five year medical malpractice statute of repose, Md. Cts. & Jud. Procs. Code Ann. § 5-109(a)(1), might ever shorten the three year limitations period in § 3-904(g)(1). Rivera, 347 Md. at 217 n.7, 699 A.2d at 1199 n.7. Therefore, it remains unclear whether the statute of re- pose would bar a claim filed within three years of death, but more than five years after the statute of repose began to run.
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