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The Statute of Limitations

The Act specifically 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. This limitations period is substantive (rather than procedural) in nature, and com- mencing the action within that period is a condition 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).10

The substan-

tive nature of the three year limitations period precludes extension of the “discov- ery rule,” see Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 667, 680 (1981), to wrongful death actions, so as to extend

• The details of every other client’s participa- tion in the aggregate settlement or the result of the aggregated agreement, whether it be their settlement contributions, their settle- ment receipts, the resolution of their crimi- nal charges, or any other contribution or re- ceipt of something of value as a result of the aggregate resolution. For example, if one cli- ent is favored over the other(s) by receiving non-monetary remuneration, that fact must be disclosed to the other client(s).

• The total fees and costs to be paid to the lawyer as a result of the aggregate settlement or the result of the aggregated agreement, if the lawyer’s fees and/or costs will be paid, in whole or in part, from the proceeds of the settlement or by an opposing party or par- ties.

• The method by which costs (including costs already paid by the lawyer as well as costs to be paid out of the settlement proceeds) are to be apportioned among them. These detailed disclosures must be made in the context of a specific offer or demand. Accordingly, the informed consent required by the rule generally cannot be obtained in advance of the formulation of such an offer or demand. ABA Standing Committee on Ethics and

Professional Responsibility, “Lawyer Propos- ing to Make or Accept an Aggregate Settle- ment or Aggregated Agreement,” Formal Op. 06-438, at 4-5 (Feb. 10, 2006) (specifi- cally rejecting the holding in Scamardella). In negotiating wrongful death claims for multiple beneficiaries, therefore, the practi- tioner should take care to comply with the requirements of Rule 1.8(g).


In addition, the statute of limitations is not extended for minors or others under a dis- ability. Waddell v. Kirkpatrick, 331 Md. 52, 59-60, 626 A.2d 353, 356 (1993).

Spring 2006

the period for commencing the action beyond three years after the death of the injured person. Trimper v. Porter-Hayden, 305 Md. 31, 35-36, 501 A.2d 446, 448- 49 (1985). A single exception to the application of a strict three-year limitations period ex- ists 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 plain- tiffs in Geisz were required to show that the defendant’s allegedly fraudulent state- ments were “in fact untrue and . . . made with a reckless disregard for their truth or falsity,” a standard illustrated in Brack v.


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.

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 action 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”).11

“Ajury consists of twelve persons chosen to decide

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