Georgia Pacific v. Benjamin

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Georgia-Pacific Corporation, et al. v. Elsie L. Benjamin No. 52, September Term, 2005 HEADNOTES: Wrongful Death Statute: The discovery rule applies to cases involving occupational diseases even though the time period prescribed under the wrongful death statute is a condition precedent to liability. The terms of § 3-904(g)(2), when the cause of death was discovered are not defined by the statute. When terms are not defined, notwithstanding their ordinary meaning, the absence of a clear definition may lead to an ambiguity. Clearly, in this case, the phrase, when the cause of death was discovered is ambiguous. It could mean the claimant must have knowledge either of the clinical cause of the decedent s death (the cancer, mesothelioma) or the cause of the occupational disease (asbestos exposure) to trigger the running of the limitations period. We take into consideration the legislative history, including the preamble, bill analysis, committee reports and the specific language of the statute. We conclude that the Legislature clearly intended to graft onto subsection (g)(2) our judicially created discovery rule to be applied in cases involving injury and death caused by occupational disease. Therefore, even though death is a condition precedent to liability under the wrongful death statute, the discovery rule applies in those cases that result in death caused by occupational disease. The discovery rule, however, does not apply to claims brought under § 3-904(g)(1). Trimper v. Porter-Hayden, 305 Md. 31, 501 A.2d 446 (1985). For purposes of the discovery rule, the knowledge necessary to trigger the running of the limitations period is actual knowledge or inquiry notice. Constructive knowledge is insufficient to trigger the running of the limitations period. In the case, sub judice, the facts are in dispute as to whether the beneficiaries knew or reasonably should have known of the nexus between the decedent s exposure to asbestos and the mesothelioma in order to trigger the running of the limitations period under section 3-904(g)(2). Survival Statute: Under the survival statute, if an occupational disease was the proximate cause of a claimant s death, damages can be claimed within three years from the date the action accrues (is discovered or should have been discovered), but not later than 10 years from the date of death. Md. Code (1974, 2002 Repl. Vol.), § 5-113(b) of the Courts and Judicial Proceedings. The discovery rule applies to survival actions. In the present case, the facts are not in dispute that the decedent had sufficient knowledge, to put him on inquiry notice, prior to his death, of the nexus between his exposure to asbestos and cancer. In this case, the cause of action for personal injuries relating to the occupational disease, under the survival statute, expired prior to Mrs. Benjamin s filing the survival claim. In the Circuit Court for Baltimore City Case No. 24-X-03-000311 IN THE COURT OF APPEALS OF MARYLAND No. 52 September Term, 2005 ______________________________ GEORGIA-PACIFIC CORPORATION, ET AL. v. ELSIE L. BENJAMIN, INDIVIDUALLY, ETC. _________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. _________________________________ Opinion by Greene, J. _________________________________ Filed: August 2, 2006 In this case we must interpret Md. Code (1974, 2002 Repl. Vol.), §§ 3-904(g)(2) and 5-113(b) to determine whether the discovery rule applies to toll the limitations period for filing wrongful death and survival actions relating to an occupational disease. In the present case, both the wrongful death and survival actions were filed more than three years after the injured person s death. The Circuit Court for Baltimore City determined that both actions were barred by the statute of limitations and granted the d efendants motion f or summary judgmen t. On appeal, how ever, the intermediate appellate court concluded that although the survival action was barred, the wrongful death action was not barred by limitations. For reasons to be explained in this opinion, we affirm the judgment of the Court of Special Appe als. BACKGROUND On May 25, 1997, R obert L. Benjamin , Sr. (Mr. Benja min) die d of m esothe lioma, a type of cance r in which a high percentage of cases are caused by asbestos exposure. On March 20, 200 3, in the C ircuit Co urt for B altimore City, Mr s. Elsie Benjamin ( Mrs. Benjam in ), as perso nal represen tative of the e state of the d ecedent, Mr. Benjamin, filed a survival action against various defen dants, includ ing Geo rgia Pacific C orporation ( GP ) and Union Carbide C orporation ( UC ). In the same com plaint, Mrs. Benjamin a nd Mr. Benjam in s two su rviving child ren, Robe rt L. Benjam in, II, and Ca rol Jeffers (c ollectively the Benjamins ), filed a wrongful death action against the same defendants. Both UC and GP moved for sum mary judgment on the ground that both actions were barred by limitations. As to b oth mo tions, the trial cou rt grante d summ ary judgm ent. On June 21, 2 004, only Mrs. Be njamin, in her individual capacity and as personal representative for Mr. Benjamin, appealed to the Court of Special Appeals. On May 3, 2005, the Court of Spec ial Appeals filed its opinion, in w hich it affirmed in part and reversed in part the trial court s judgment. In affirming the trial court s judgment, the inte rmediate appellate court held that Mrs. Benjamin s survival action was barred by limitations. The court reversed a s to the wro ngful dea th action. It held that, as to that action, the evidence was insufficient, as a matter of law, to constitute inquiry notice. We granted the petition for certiorari filed by G P, UC , and M rs. Ben jamin. Georgia -Pacific v. Benjam in, 388 Md. 404, 879 A.2d 10 86 (2006). 1 1 Georgia Pacific, in its petition for a writ of certiorari, presented three questions for our review : 1. 2. 3. Did the Court of Special Appeals err by concluding that § 3-904(g) requires knowledge of the cause of the occupatio nal disease to trigger commencement of limitations in a wrongful death case? Did the Court of Spe cial Appeals err by holding the plaintiffs knowledge that Mr. Benjamin died of mesothelioma was insufficient to place them on inquiry notice? Did the Court of Special Appea ls err by ruling that the applicable limitations period for a surviv al action mu st expire prior to the deced ent s death in order to also bar a cause of action for wrongful death? Union Carbide, in its petition for a writ of certio rari, presented three issues for our review: 1. Whether the Court of Special Appeals erred in applying the discovery rule applicable to Md. Code (1974, 2002 Repl. Vol.), § 5-101 of the Cts. & Jud. Proc. Article to the wrongful death limitations period set forth in § 3904(g)(2). (contin ued...) 2 We affirm the judgment of the Court of Special Appeals and hold that application of the judicially developed discovery rule is consistent with the language contained in § 3904(g)(2) of the Cou rts and Judicial Proceedings Article. Specifically, in cases involving workplace exposure to toxic substance s, like asbestos , a claimant, inc luding a w rongful d eath claimant, is on inquiry notice of the causation element of a cause of action to recover injuries resulting from an occupational disease, e.g., mesothelioma when the claimant has knowledge that (1) the person whose injury forms the basis for the claim has been diagnosed 1 (...continued) 2. Whether the Court of Special Appeals erroneou sly concluded that the wrongful death claimants were not placed on inquiry notice, even assuming that the discovery rule applies to § 3-904(g )(2)(ii). 3. Whether the Court of Special Appeals erred in concluding that the knowledge of the person al representa tive canno t be impute d to the beneficiaries of a wron gful de ath actio n. Mrs. Benjam in, in her petition for a writ of certiorari, which we treat as a crosspetition for certiorari, presents two questions, requesting that we limit our review to the decision of the Co urt of Spe cial Appe als which affirmed the dismissal of the survival action: 1. 2. Whether, for purposes of determining when the period of limitations begins to run under the discovery rule in an asbestos injury products liability action, an injured plaintiff is charged w ith inquiry notice despite that injured plaintiff s lack of knowledge of injury, causation and defendant wrongdoing. Whether the determination of when the period of limitations begins to run under the discovery rule in an asbestos injury product liability action may be resolved through summary judgment as a matter of law where no evidence exists in the record demo nstrating that the injured plaintiff knew or should have known of a causal relationship between his disease and asbestos exposure, and wh ere no reco rd evidenc e demon strates what, if any, general state of knowledge exists concerning the relationship between asbestos expos ure and occup ational d isease. 3 with mesothelio ma, and (2 ) the injured p erson wa s exposed to asbestos in the work place. Further, we hold that in a survival action, if the decedent s knowledge is sufficient to satisfy the discovery rule, the decedent s knowledge is enough to trigger the running of the limitation s period for the s urviva l action. FACTS We adopt, in large part, th e facts as set f orth by the Co urt of Spe cial Appe als in its opinion: In the complaint and in answers to interrogatories, [the respondents][2] assert[] that the decedent was employed as a laborer and carpenter while (1) in the United States Navy from 1943 to 1945, (2) work[ed] for the L.H. Benjamin Co. from 1946 to 1961, and (3) work[ed] for the R.L. Benjamin Lumber Co. from 1961 to 1971. According to [the respondents], the decedent was exposed to asbestos containing products at various times throughout his employment, including while working for the Benjamin companies, which stocked and sold severa l products c ontaining a sbestos. Th e decede nt was diagnosed with mesothelioma in early 1997, and he died on May 25, 1997. Benjamin v. Union Carbide, 162 Md. A pp. 173, 180, 873 A .2d 463, 467 (200 5). Mr. Benjam in s death ce rtificate indicate d that the cause of death was cancer (metastatic mesothelioma). The respondents testified, as revealed in the affidavits and deposition testimony filed in these proceedings, that they discovered the nexus between asbestos exposure and cancer in late 2001 to early 2002, after the decedent s daughter, Carol 2 We refer collectively to both Mrs. Benjamin, personal representative in the survival suit, and to the Benjamins, beneficiaries in the wrongful death suit, as the respondents. 4 Jeffers, read an article that stated that a high percentage of mesothelioma cases were caused by asbestos exposure. In Benjam in, the Court of Special Appeals summarized the evidence, as stated in pertinent pa rt: Sum mary of me dical repor ts, deposition s, and affida vits A medical report, dated January 27, 1997, indicates that the decedent was referred to Dr. M. Jesada because of an abnormal chest x-ray and CAT scan. The report states that the decedent had periodic chest x-rays prior to December 1996, which were normal. As a result of a fall in November 1996, the decedent had various tests. The test included a chest X -ray, which w as abnorm al, and which was followed by a CAT scan, wh ich was a bnorma l. Accordin g to the report, the decedent advised the physician that he had a history of asbestos exposure. Dr. Jesada s impression was possible mesothelioma, and a biopsy was recommended. Records from H arford M emorial H ospital revea l that the decedent was admitted on February 7, 1997, for a biopsy. An oncology report dated February 28, 1997, by Dr. Promila Suri, reflects a diagnosis of probable mesothelioma. Th e report indicates that the decedent stated that he had a history of exposure to asbestos in the workplace. A report dated March 4, 1997, by Dr. Viroon Donavanik, indicates that the decedent was admitted to the Medical Center of Delaware on March 4. The report contains a confirmation of a diagnosis of mesothelioma and a recom mendatio n that deced ent be treated with radiation and chemotherapy. The report again reveals that the decedent disclosed a history of asbestos exposure while w orking in a machine shop. The report further noted that decedent worked in the roofing and siding business. [Mrs. Benjamin], in her affidavit, stated that she routinely attended medical appointments with the decedent in the spring of 1997, and that neither she nor the decedent was informed of the causal connection between asbestos ex posure an d mesoth elioma. [Mrs. 5 Benjamin] stated that she first learned of the connection . . . [as late as] 2002, when her daughter read an advertisement which referenced the connection and told [Mrs. Benjamin] about it. [Mrs. Benjamin] testified that she never made any inquiries about the cause of mesothelioma prior to that time. At the first motions hearing held on No vember 25, 200 3, the court denied [these] motion[s] [by GP and UC and the other defendants] for summa ry judgment w ithout prejud ice, stating: Well . . . I think the motion may be premature. And the reason I say that is that Mrs. Benjamin has not been deposed, and I gathered that from reading the papers, and I think that tha t ought to be done, because I don t want to make a decision in this case based upon an affidavit. Following the hearing, [Mrs. Benjamin] was deposed on December 23, 2003. The pertinent testimony is as follows: Q. Do you remember your husband telling Dr. Jesada that he had some ex posure to a sbestos in the past? A. No. Q. And you can t pinpo int one way or the other w hether you were with your husband on January 27th, 1997 for that exam? A. I can t remember the date. * * * * Q. I m going to show you a report from Dr. Suri dated February 28th, 1997. Do you recall whether you were w ith your husband on F ebruary 28th, 1997 when h e went to s ee Dr. Su ri? A. I was with him almost every time as far as I know, every time he saw her. Q. I m going to show you the report, but there s some reference in the report to your husband being exposed to asbestos when he was a carpenter. Do you remem ber at any time when you w ent to see Dr. Suri your husband ever making any mention of the fact that he had been exposed to asbestos while he w as working as a ca rpenter? A. I do not remem ber. 6 * * * * Q. Did there come a time when your husband, as a result of his cancer, went to the Medical Center of Delaware? A. That s where he got the radiation treatments. * * * * Q. Did you accompany him to the Medical Center of Delaware A. Yes, I did. Q. for his radiation? A. Yes. Q. And there was one time when you didn t go because of the ice? A. He went, but I didn t drive him. Q. Do you know whether you accompanied him on March 4, 1997? A. I don t know. Q. I m going to show you a report dated March 4, 1997 from Viroon Donavanik. **** Q. Do you know whether you accom panied your h usband o n that date to the medical center? A. I don t know. Q. And the report, and I ve highlighted it, again makes ref erence to his being exposed to asbestos. Do you know whether during a v isit to the Medical Center of Delaware your husband ever told the doctors there that he had been exposed to asbestos? A. I don t know. **** Q. Do you rem ember [th e decedent] mentioning to the people at Union Hospital anything about asbestos exposure? A. No. Q. Now, you me ntioned that you think you were p resent when D r. Jesada told your husban d that he ha d lung can cer, correct? A. I was. Q. Did your husban d ask what cau sed his lung cancer? A. No. 7 **** Q. And you d on t recall your husb and ever asking D r. Jes ada, hey, what could hav e caused this cancer? A. No, I d on t. Q. Did you and your husband ever discuss as between the two of you what possibly could hav e caused his cancer? A. No. **** Q. When you accompanied your husband to see Dr. Suri, do you remember you or your husband ever asking Dr. Suri what may have caused his cancer? A. Well, it was discussed. Q. Tell me what was discussed with Dr. Suri regarding the cause of his cancer. A. I remember her saying she had only had one other case of this type of cancer, it was a woman and she died. Now, that s what I remember of that con versation. W e were pr etty much up set. Q. Sure. Any other discussions that you can recall with Dr. Suri by either you or your husband regard ing the cause of your hus band s cancer? A. No, I don t rem ember. Q. When did you become aware of the name of the cancer that your husband had? A. Well, I saw it on the death certificate and that might be when. **** Q. Did you ha ve any discus sions with any family members as to what may have c aused h is cance r . . . any discussions as to what could have caused it? A. No. **** Q. Did you ever, subsequent to your husband s death and prior to coming to this law firm, ever ask to see any of your hu sband s medical records? 8 A. No. Q. Did you have in your possession prior to coming to this office any of your husband s medical records? A. After he died, the VA Hospital, one of my neighbors worked in the X-ray department and he brought the X-rays home and said destroy them. I thou ght that wa s unusual, b ut I did it. **** Q. Other than those X-rays, did you ever have any other medical records relating to your husband s cancer? A. None. Significantly, not only is there no evidence that [the Benjamins] had express knowledge[3] of a causal connection between mesothelioma and asbestos, there is no evidence that [the Benjamins] had express knowledge that the decedent had been exposed to asbestos during his lifetime or at any time prior to 2002 [o r early 2002]. Robert L. Benjamin, II, testified [at the] deposition that he had no knowledge of the connection between asbestos exposure and mesothelioma until advised by his sister at the end of 200 1, early 2002. He also testified that he knew the d ecedent had can cer before death but he did not know it was mesothelioma u ntil his sister told him in late 2001. T here is no evidence that Robert L. Benjamin, II had actual knowledge of the deceden t s exposur e to asbesto s prior to late 2001. There is no eviden ce that Caro l Jeffers had knowle dge, until late in the year of 2001, that the decedent was exposed to asbestos or that his cancerous condition was caused by such exposure. According to [the respondents], this litigation occurred after Carol Jeffers read an article in late 2001 o r early 2002 ab out meso thelioma, to ld her family, and they contacted counsel. [The Benjamins] also filed [the] affidavit [of] John E. Newhagen, 3 All references herein to express or actual knowledge refers to the first prong of the discov ery rule, dis cussed at length in this op inion. See infra at 14-1 6. 9 Ph.D., dated December 10, 2003 . . . . Dr. Newhagen opined tha t it would be unlikely fo r an averag e consum er to have actual knowledge of the relationship between asbestos exposure an d mesothelioma p rior to 1997 . . . . **** We see no need to summarize the affidavit . . . because [the respondents] d[id] not arg ue [that be fore 199 7] . . . [a] relationsh ip between asbestos exposure and mesothelioma was not knowable, if a reasonab le investigation had been conducte d. [Mrs. B enjamin] s s ole argument [on appeal] is that neither she, the other beneficiaries, nor the deceden t had suffic ient actual kn owledg e to place them on inquiry notice so as to charge them with the knowledge that a reasonable investigation would have revealed. Benjam in, 162 Md. App. at 180-186, 873 A.2d at 467-70. After the depos ition of Mrs. B enjamin, pe titioners mov ed for sum mary judgm ent, contending that the action was barred by limitations, and the trial court granted the motion. The court held that respondents were on inquiry notice in 1997 when Mr. Benjamin was diagnosed with mesothelioma and was aware of his exposure to asbestos. Therefore, the three-year statute of limitations period expired as to both the wrongful death and survival actions in 2000, three years after Mr. B enjamin s death. The reafter, on appeal, the Court of Specia l Appe als affir med th e trial cou rt s judg ment in part and reverse d in par t. STANDARD OF REVIEW The trial court properly grants a motion for summary judgment if the motion and the response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. Md. Rule 2-501; 10 Tyma v. Montgomery County, 369 Md. 497, 504, 801 A.2d 148, 152 (2002). If a motion for summary judgment relates to an issue involving the discovery rule and there is any genuine dispute of material fact as to when the [claimants] possessed that degree of knowledge [of the circumstances which would cause a reasonable person in the position of the claimants to undertake an investigation which, if pursued with reasonable diligence, w ould have led to knowledge of the alleged cause of action], the issue is one for the trier of fact to resolve. Bank of New Y ork v. Sheff, 382 Md. 235, 244, 854 A.2d 1269, 1275 (2004) (citing O Hara v. Kovens, 305 Md. 280, 301-02, 503 A.2d 1313, 1323-24 (1986)). Conve rsely, [i]f there is no such genuine dispute . . . and the question of whether the [claimants] were on inquiry notice m ore than three years before their suit was filed can be determined as a matter of law, summary judgment on that issue is . . . appropriate. Id. Further, [i]n reviewing the grant of summary judgment, this Court must consider the facts reflected in the pleadings, depositions, answers to interrogatories and affidavits in the light most favorable to the non-moving parties, the [claima nts]. Even if it appears that the relevant facts are undisputed, if those f acts are susceptible to inferenc es suppor ting the position of the party opposing summary judgment, then a grant of summary judgment is improper. This Court has noted th at the purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried. Summary judgment unquestionably is an important device, w ithin our court system, for streamlining litigation and ensuring the applicatio n of limited ju dicial resourc es to 11 potentially meritorious claims. Additionally, it saves the parties expense and the delays of protracted and non-meritorious litigation. Nonetheless, dismissal of the case deprives the parties of a trial and th e opportu nity to develop their claims and present them to a jury. This Co urt has theref ore been c areful to restrict application of summary judgment to cases that present no ma terial fac ts that m ay reason ably be sa id to be d isputed . Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533-34, 836 A.2d 655, 669-70 (2003) (citations omitted) (internal quotations om itted). THE DISCOVERY RULE We agree with the Court of Special Appeals that the [q]uestion in this case is when [did the Benjamins ] causes of action against the manufacturers of asbestos containing products accrue []. Benjam in, 162 Md. App. at 191-92, 873 A.2d at 474. In order to answer that question, we begin by stating the general rule that a cause of action is said to accrue at the time of the wrong. In Hecht v. Resolution Trust Corp., 333 Md. 324, 334, 635 A.2d 394, 399 (199 4), this Cou rt pointed ou t that [h]istori cally, the general rule in Maryland was that a cause of action accrued on the date the wrong was comm itted. Waldman v. Rohrbaugh, 241 Md. 137, 139, 215 A.2d 82 5 (1966); Hahn v. Claybrook, 130 Md. 179, 182, 100 A. 83 (1917). Whether the plaintiff knew or should have known of the wrong was not considered in determining accrual. This date of the wrong rule did not diff erentiate between the plaintiff who was blameles sly ignorant of his potential claim and the plaintiff who had slumbered on his rights, Harig [v. Johns-M anville Produc ts, 284 Md. 70,] 83, 394 A.2d 29 9, [306 (1978)]. It wrought harsh consequences in cases where plaintiffs claims were barred, not only before they were able to perceive any harm, but before it was possible for them to learn that the 12 negligence had taken place, such as in situations involving professional services where the plaintiff was not qualified to ascertain the injury. Waldman, supra, 241 Md. at 140, 215 A.2d 825, quoting Develop ments in th e Law, Sta tute of Limitations, 63 Harv.L.Re v. 1177, 1201 (19 50). In the absence of any statutory provision to the contrary, because of the unfairness inherent in charging a plaintiff with slum bering on rights not reas onably possib le to ascertain, th is Court adopted what is known as the disco very rule, whic h now a pplies gene rally in all civil actions, and which provides that a cause of action accrues when a plaintiff in fact knows or reason ably shou ld know of the w rong. Id. (citation omitted ). Our first recognition of the discovery rule was in the early 1900s in a medical malpractice case. Hahn, 130 Md. at 187, 100 A. at 86 (recognizing that the cause of action, although barred in that case, did not acc rue unt il an inju ry was di scover able). See Harig, 284 Md. at 83, 394 A.2d at 30 6 ( In sit uations involv ing the la tent dev elopm ent of d isease, a plaintiff s cause of action accrues [under the discovery rule] when he ascertains, or through the exercise of reasonab le care and diligence sho uld have ascertained, the n ature and cause of his injury. ). Thus, the discovery rule was adopted to resolve unfairness and injustice. Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 665, 464 A.2d 1020, 1026 (1983). The rule requires that the plaintiff must have notice of a claim to start the running of limitations. We defined such notice in Poffenberger as express cognition or awareness implied from knowledge of circumstances which ought to have put a person of ordinary prudence on in quiry [thus charging the individual] with notice 13 of all facts which such an investigation would in all probab ility have disclosed if it had been pro perly pursued. 290 M d. [631], 637, 431 A.2d 677[, 681 (198 1)]. Hecht, 333 Md. at 336 , 635 A.2d at 400 (citations omitted) (alterations in original). The discovery rule has been extended to cases of latent development of disease because [l]ike the victim of undiscoverable malpractice a person incurring disease years after exposure cannot have known of the existence of the tort until some injury manifests itself. In neither case can the tort victim be charged with slumbering on his rights, for there was no notice of the existence of a cause of action. This feature distinguishes these situations from ordinary tort cases, which require n o exception to the gen eral rule that knowledge of the wr ong is imm aterial, because usually some harm will be apparent to a reasonably diligent plaintiff. Harig, 284 Md. at 80, 39 4 A.2d at 305 (citations o mitted). Those who suffer injury due to occupational disease or their beneficiaries may, in appropriate circumstances, be blamelessly ignorant of the fact that a tort has occurred and thus, ough t not be cha rged with slumbering on rights they were unable to ascertain. Id. at 83, 39 4 A.2d at 306. ANAL YSIS WRONGFUL DEATH ACTION4 Petitioners argue that under § 3-904(g )(2)(ii) of the w rongful d eath statute, the three- 4 It is important to note that wrongf ul death an d survival a ctions are ind ependen t; separate and distinct c auses . . . with two separate and distinct claimants. Thus, disposing of one does not automatically act as a bar to the other. Benjam in, 162 Md. App. at 205, 873 A.2d at 481. See Globe American Cas. Co. v. Chung, 76 Md. App. 524, 526-27, 547 A.2d 654, 65 4-55 (1 988), vacated on other grounds, 322 Md. 713 , 589 A.2d 956 (1991)). 14 year limitations period is triggered when death is discovered and not when the claimant discovers that the und erlying ca use of deced ent s de ath wa s an occ upation al diseas e, i.e., asbestos expos ure. See infra at 20. The p etitioners maintain that the triggering event was ultimately Mr. Benjamin s death. Further, they contend that it is immaterial that the Benjamins did not become aware, until 2001, that prior asbestos exposure caused the mesothelioma. The prem ise for this arg ument is that Mr. B enjamin d ied in 1997 as a result of can cer, and his dea th was the eve nt that trig gered th e runni ng of th e limitatio ns perio d. In addition, U C mainta ins that in Waddell v. Kirkpatrick, 331 Md. 52, 57, 626 A.2d 353, 355 (1993), this Court held that under the wrongful death statute an action commences on the date of the injured person s death. Therefore, the discovery rule does not app ly. 5 5 UC also relies on Trimper v. Porter-Hayden, 305 Md. 31, 501 A.2 d 446 (19 85). Its reliance is misplaced. In Trimper, two widow s filed wrongful de ath and survival actions, more than three years after their hu sbands d eaths, alleging that their husbands died as a result of asb estos ex posure . Id. at 32-33 , 501 A .2d at 44 7-48. In that case, we acknowledged that wrongful death claims are governed by § 3-904(g). In that regard, we refused to extend the application of the discovery rule to wrongful death actions because the legislature created the cause of a ction and im posed a tim e limit, within three years afte r the dec edent s death, for filing a w rongf ul death action. Id at 35-36, 501 A.2d at 449. The next year the Legislature revised the w rong ful d eath statu te by adding a new subse ction § 3-904(g)(2). Section 3-9 04(g)(2)(ii) pro vides: (ii) If an occupational disease was the cause of a person s death, an action shall b e filed: (1) Within 10 years of the time of death; or (2) Within 3 years of the date when the ca use of de ath was discovered, w hichever is the shorter. (contin ued...) 15 Alte rnatively, UC arg ues that even if the discovery rule applies, the family was on notice when Mr. Benjamin died of mesothelioma in 1997, and should have investigated further at that time . The Benjamins assert that the Court of Special Appeals did not err when it held that there was no evidence in the record that the beneficiaries had any express knowledge, prior to late 2001, tha t Mr. Ben jamin s dea th was linked to an occupational disease. Therefore, because summary judgment was inappropriate, their claims, although filed more than three years after Mr. B enjamin s d eath, should not be time barred. In ad dition, we n ote that a question of whether the beneficiaries had any knowledge as to the nature of the mesothelioma, other than that it was a form of c ancer, is a question for the trier of fact and not for the cou rt to deci de on s umm ary judgm ent. The trial court held that the Benjamins were on notice when Mr. Benjamin was diagnosed with m esothe lioma. Further, the trial court found that the B enjamins were aware of Mr. Benjam in s exposure to asbestos w hen he relayed that information to his doctors during the c ourse of h is medical d iagnosis an d treatmen t. The only refe rence, how ever, to the family s alleged com municatio n with M r. Benjam in s doctors w as containe d in a footn ote 5 (...continued) Thus, it is clear that the 1986 statutory changes to § 3-904(g) partially abrogated our holding in Trimper to the extent that the wrongful death statute no longer precludes us from applying the discovery rule to a wrong ful death occupati onal disease-related claim filed more than three year s after th e dece dent s d eath. 16 in the trial court s memorandum opinion which indicated that Mrs. Benjamin accompanied her husband on doctor and hospital visits. Neither the son nor the daughter were mentioned in the opinion. Additionally, Mrs. Benjamin testified that either she was never told or did not recall any discussions with the doc tors about Mr. Be njamin s previous asbestos exposure or the link b etwee n the m esothe lioma a nd that e xposu re. The intermediate appellate court held that in a wrongful death action, [i]f the decedent does not have kn owledge suff icient to satisfy the discovery rule, the [beneficiaries are] the determinative part[ies] . . . . [T]he cause of action does not accrue until the beneficiaries are on inquiry notice. Benjam in, 162 Md. App. at 201, 873 A.2d at 479. The Court of Special Appeals held that the fact that Mrs. Benjamin accompanied her husband to appointm ents was not sufficient evidence to show that she was on inquiry notice as a matter of law. Id. at 205, 873 A.2d at 481-82. Further, the evidence was insufficient to show that the respondents were on inquiry notice regarding the asbestos exposure, although they were aware of the m esothe lioma. Id. The interm ediate appe llate court held that [t]he direct evidence of express knowledge in the case before us is that [Mrs. Benjamin] and the other beneficiaries knew only that the cause of death was mesothelioma, prior to late 2001[, and] . . . the non-moving party . . . gets the benefit of all reasonable inferences. Id. A wrongful death action is designed to compensate the family of a decedent who died 17 due to the wrongful act, 6 neglect, or defa ult on an other p erson. 7 Binnix v. Jo hns-Ma nville Produc ts Corp ., 593 F.Supp. 1180, 1182 (Md. 1984) (quoting Stewart v. U nited Electric Light and Power Co., 104 Md. 332, 343, 65 A. 49, 53 (1906)). See also Eagan v. Calhoun, 347 Md. 72 , 82, 698 A.2d 10 97, 1102 (1997 ). There are two relevant inquiries necessary to determine the commencement date for a cause of action for wrongful death under § 3-904(g): (1) did the cause of action commence at the time of the decedent s death; or (2) did the cause of action commence when the beneficiaries became aware of the causal link between the decedent s illness and h is exposure to a toxic substance? In answering these questions and determining when the cause of action a rose, we m ust interpret the language of the wrongful death statute. Md. Code (1974, 2002 Repl. Vol.), § 3-904(g) of the Courts and Judicial Proceedings Article. We stated in Walton v. M ariner He alth, 391 Md. 643, 664, 894 A.2d 584, 596 (2006) 6 Pursuant to Md. C ode (197 4, 2002 R epl. Vol.), § 3-901(e) of the Courts and Judicial Proceedings Article, a wrongful act is defined as an act, neglect, or default including a felonious act which w ould have entitled the pa rty injured to ma intain an action and recover damages if death had not ensued. We interpret this section to mean that there must have been a wron gful ac t in orde r for a b enefic iary to brin g an ac tion for wron gful de ath. 7 A wrongful death action is brought by relatives of the victim and seek[s] rec overy for their loss by virtue of the victim s death . . . . [The action arises] only [by] the actual death of the victim. Benjam in, 162 Md. A pp. at 202, 873 A .2d at 480 (citations omitted); B LACK S L AW D ICTIONARY 1644 (8th ed. 2004) (A wrongful death action is defined as [a] lawsuit brought on behalf of a decede nt s survivors for their damages resulting from a tortious injury that caused the dec edent s death. ). See also Owens-Corning Fiberglass Corp. v. Gar rett, 343 Md. 50 0, 534, 682 A.2d 1143, 1159-60 (1996) (noting that the claimants under a w rongful death action are limited to a specific class of bene ficiaries). 18 that: The cardinal rule of statutory interpretation is to ascertain and effectuate legislative inten t. O Connor v. Baltimore C ounty, 382 Md. 102, 113, 854 A.2d 1191, 1198 (2004); Privette v. State, 320 Md. 738, 744, 580 A.2d 188, 191 (1990) (citations omitted). We may consider the general purpose and aim of a statute in an effort to disce rn legisla tive inten t. Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987). Our long -standing ru le is that if the language use d in the statute is clear, unam biguous, a nd consiste nt with its objective, the words will be accorded their ordinary meaning. Ayres v. Townsend, 324 Md. 666, 672, 598 A.2d 470, 473 (1991) (citations om itted); see G. Heileman Brewing Co., Inc. v. Stroh Brewery Co., 308 Md. 746, 755, 521 A.2d 1225, 1230 (1987 ). In contrast, if the statutory language is ambiguous, we have maintained, that [i]n determinin g the mea ning of a s tatute, we consider the statute s structure, including the title, and how the statute relates to other law s. Witte v. Azarian, 369 Md. 518, 525-26, 801 A.2d 160, 165 (2002). We look first to the plain meaning of the language chosen by the Legislature. If the plain language of the statute is ambiguous, we analyze the case law, legislative histo ry, and statutory functio n. Comptroller v. Phillips, 384 Md. 583, 591, 865 A.2d 590, 594 (2005) (citing Deville v. Sta te, 383 Md. 217, 223 , 858 A.2d 484 , 487 (2004)). Stouffer v. Pearson, 390 M d. 36, 46 -7, 887 A.2d 6 23, 629 (2005 ). We may review the relationsh ip of new amendm ents to any earlier statutory language and other materia ls to asce rtain leg islative p urpose or goal . Wynn v . State, 313 Md. 533, 539, 546 A .2d 465 , 468 (1 988). In an attempt to determine legislative intent, it is well settled that preambles to a 19 statute m ay be con sidered . McAlear v. McAlear, 298 Md. 320, 343, 469 A.2d 1256, 1268, 1284)(1984) (noting that a preamble to a statute may be considered in determining legislative intent). See Dillion v. Sta te, 277 Md.57 1, 583, 357 A.2d 36 0, 367-68 (1976) ( T he recitals set forth by the legislature in a preamble may be resorted to as an aid in construction of a statute. ) (abrogated o n oth er groun ds by Barnhard v. State, 325 Md. 602, 602 A.2d 701 (1992)). But see Comptroller of the Treasury v. Glenn L Martin Co., 216 Md. 235, 249, 140 A.2d 288, 295 (195 8) ( Pream bles are not o perative pa rts of the statute . ); Gibson v . State, 204 M d. 423, 4 32, 104 A.2d 8 00, 805 (1954 ). Before the 1986 r evision, the w rongful d eath statute req uired that a w rongful d eath action must be filed within three years after the death of the injured person. Md. Code (1974 , 1984 R epl. Vo l.), § 3-90 4(g) of the Co urts and Judicia l Proce edings Article. In May 1986, the General Assembly of Maryland, by way of Senate Bill 864, approved a revision to § 3-904(g) of the Courts and Judicial Proceedings Article. The statute, as revise d, provides : § 3-904 Action for wrongful death. (g) Action to commence within three years; deaths caused by occupational disease. (1) Except as provided in paragraph (2) of this subsection, an action under this subtitle shall be filed within three years after the death of the injured person. (2) (i) In this paragraph occupational disease means a disease caused by exposure to any toxic substance in the person s workplace and contracted by a person in the cours e of the pe rson s em ployment. 20 (ii) If an occupational disease was the cause of a person s death, an action shall b e filed: (1) Within 10 years of the time of death;8 or (2) Within 3 years of the date when the cause of death was discovered, w hichever is the shorter. Md. Code (1974, 2002 Repl. V ol.), § 3-904(g) of the Courts and Judicial Proceedings Article. See also 1986 Md. Laws, Chap. 374. Before we determine whether the disco very rule applies, we must first determine whether 3-904(g)(2) is a condition precedent to maintaining a cause of actio n or a sta tute of lim itations, per se. Condition Precedent or Statute of Limitations Hist orically, we have construed the limitation period prescribed in § 3-904(g) as a condition precedent to maintaining a cause of action, rather than as a statute of limitations. See Wadde ll, supra, 331 Md. at 57, 626 A.2d at 355 (cases cited therein). In Wadd ell, we held that the limitation s period pre scribed in § 3-904(g) is a condition precedent to maintaining a cause of actio n. Id. In Wadde ll, an adult filed a wrongful death action approxim ately seventeen years after her father died from injuries sustained when his car collided with a tr actor tra iler. Id. at 54, 626 A.2d a t 354. At the time of her father s death, the daughter was a minor. Id. The defendants moved to dismiss the wron gful death claim because it was filed more than thre e years after the decedent s death. The trial court granted 8 The original 1986 language of § 3-904(g)(2)(ii)(1) was [w]ithin 5 years of the time of death . . . . 1986 Md. Laws, Chap. 374. In 1987, however, the Legislature further amended Sec. 3-904(g)(2)(ii)(1) to its current form and language. 1987 Md. Laws, Chap. 629. 21 the motion to dism iss. Id. On appeal the daughter argued, among other things, that the 1971 changes to § 3-904(g)(1), amending the statute from a two year limitations period to three years, changed the time perio d of the sta tute from a condition precedent to a statute of limitations. W e disagreed and expla ined: In [State v. Parks, 148 Md. 477, 129 A. 793 (1925),] the issue was whether the requirement in the wrongful death statute then in effect, Maryland Code (1912) Art. 67 § 2, requiring that every such action shall be commenced within twelve calendar months a fter the death of the d ecease d perso n, is a condition essential to the right to maintain the action given by the statute, or merely a limitation of the rem edy which m ust be pleaded to defeat the action. Id. at 58, 626 A.2d at 356 (quoting Parks, 148 Md. 477-78, 129 A. at 793 (noting that in 1925, a claimant had twelve months to bring a wrongful death action today, a claimant has ten years, or three years from the date cause o f death is discovered)). Further, we explained that the wrongful death [statute] create[s] a new legal liability, with the right to suit for its enforcement, provided the suit is brought within [the statutory tim e presc ribed], a nd not o therwi se. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to th e right to sue a t all . . . . Time has been made of the essence of the right and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated a s limitations of the right. Id. at 59, 626 A.2d at 3 56 (alterations in original) (alterations added). In 1985, in Trimper, we held th at the unam biguous la nguage o f the wro ngful dea th 22 statute leaves no roo m for ju dicial inte rpretatio n . . . of the d iscove ry rule. Trimper, supra at n.7 at 17, 305 Md. at 36, 501 A.2d at 449. The three-year period after the date of death for filing a wrongful death claim stood as an objectively determinable event or starting point. Id. at 34, 501 A.2d at 448. In addition, the wrongful death statute created a new liability not existing at common law . . . . The period of limitations is part of the substantive right of action. Id. at 35, 50 1 A.2d at 449 ( citations omitted ). Further, this Court has held that [a] condition precedent ca nnot be waived under the common law and a failure to satisfy it can be raised at any time because the action itself is fatally flawed if the condition is not satisfied. This requirement of strict or substantial compliance with a condition preceden t is of course subject to ab rogation by th e Gen eral A ssem bly. Rios v. M ontgom ery Cou nty, 386 M d. 104, 1 27-28 , 872 A .2d 1, 14 (2005 ). The statute of limita tions, howev er, is differen t.9 Judge Cole w riting for this Court in Pennw alt stated: Statutes of limitations have existed in Maryland and in other common law jur isdiction s for hu ndreds of years. See Ferguson, The Statutes of L imitation Sa ving Statu tes, 12-14 (1978). The statutes were enacted in an effort to balance the competing 9 Maryland s general statute of limitations is applicable to most civil actions and provides: A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be comm enced . Md. Code (1974, 2002 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article. 23 interests of pote ntial plain tiffs, po tential de fenda nts, and the public. The statutory period provided by a statute of limitations represents a compromise of these interests and reflects a policy decision regarding what constitutes an adequate period of time for a per son o f ord inary diligence to pur sue his c laim. Goldstein v. Potomac Electric Power Co., 285 Md. 673, 684, 404 A .2d 106 4, 1069 (1979 ). By creating a limitations period, the legislature determined that a plaintiff should have only so long to bring his ac tion before he is deemed to have w aived his right to sue and to have acquiesced in the defendant s wron gdoing . Limitations statutes therefore are designed to (1) provide adequate time for diligent plaintiffs to file suit, (2) grant repose to defendants when plaintiffs have tarried for an unreason able period of time, and (3) serve socie ty by promoting judicial e conom y. Pierce, 296 Md. at 665, 464 A.2d at 1026. Pennw alt, 314 Md. a t 437-3 8, 550 A .2d at 11 57-58 . See State v. Sha rafeldin, 382 Md. 129, 140-41, 854 A.2 d 1208, 1 214 (200 4). Further, in contrast [to a condition p recedent to maintaining an action], a statute of limitations affects only the remedy, not the cause of action. Wadde ll, 331 Md. at 59, 626 A.2d at 353. The defense of limitations may b e waived; howev er, a condition preceden t to liability may not be waiv ed. Rios, 386 Md. at 127-28, 872 A.2d at 14. We must determine the legislative intent of the phrase statute of limitations in the 1986 revision s to § 3-9 04(g). The Legislature stated that before 1986, under the wrongful death statute, occup ational diseas e involved latent or do rmant ph ases that m ay be undiscov erable beyond the 3-year statute of limita tions. Senate Judicial Proceedings Committee, Summary of Committee Report, S.B. 864 at 1 (Md. 1986) (emphasis added). The legislative purpose of the revisions was that the statute of limitations [would start to 24 run] . . . [from] the d iscovery of fa cts from w hich it becomes known or reasonab ly should become known that the occupational disease was a cause of death. Id. at 2. U nfortunately, the General Assembly did not define the phrase statute of limitations before or after its revisions, however it acknowledged that the wrongful death statute runs from the date [of death] . . . . Id. at 2. No outward declaration was made that § 5-101 would apply to the wrongful death statute, thus we presume that the Legislature meant that the limitations period provid ed with in § 3-9 04(g)(2 ) wou ld apply. See supra at note 1 1. We were faced with the same issue in 1971, when the Legislature changed the time period to bring a wrongful death action from two years to three years, and used the phrase statute of limitations in the pr eamb le. Wadde ll, 331 Md. at 61, 626 A.2d at 357; 1971 Md. Laws, Chap. 784. Judge Bell (now Chief Judge), writing for the Court in Wadde ll, conclude d that although [the Legislature] referred to that time period as a statute of limitations in the process, that does not suffice to effect so considerable a change to render what had once been a condition precedent a statute of limitations. Had the Legislature intended such a radical change, it easily could have done so; it certainly knew how to do it. Id.; Geisz v. Greater Baltimore, 313 Md. 301, 322, 545 A.2d 658, 668 (1988) ( Even a change in the phraseology of a statute by codification will not ordinarily modify the law unless the change is so material that the intention of the General Assembly to modify the law appears unmistakably from the language of the Code. ) (quoting Rohrbaugh v. Estate of Stern, 305 Md. 443, 449, 505 A.2d 113, 116 (1986)). 25 In Waddell, the Court explained that the time period prescribed in § 3-904(g) has been construed by this Court to be a condition precedent to maintaining the action, rather than a statute of limitations. Id. The Court in Wadde ll interpreted the limitations period contained in subsectio n (g) as con dition prece dent to maintaining a cause of action. It also noted that the Legislature created a different time period in which to bring a wrongful death claim for deaths caused by occupational disease: Prior to 1986, subsection (g) provided only one time period in which to bring a wrongful death action. In that year, the Legislature amended that subsection to include what is now paragraph (2), providing a different time period in which to bring a wrongful death action when the death is alleged to have been caused by occupational disease. Id. at 63, 626 A.2d at 357 (emphasis added) (citation omitted). No sound reason has been advanced for us to now change our prior interpretation of § 3-904(g)(2). The limitations period prescribed in § 3-904(g)(2) is a condition precedent to maintaining a cause of action when death is alleged to have been caused by occupational disease. The limitations period prescribed in § 3-904(g), providing that an action shall be filed within three years after the death of the injured person, is similarly a condition precedent to maintaining a cause of action for wrongful death in all other cases. Further, we hold that because the Legislature, pursuant to § 3-904(g), provided a different time period for the commencement of a wrongful death action, the general statute of limitations specified in § 5-101 does not apply. Our holdings herein are consistent with our observations in Waddell. Aside from our conclusion that the limitations period prescribed by this statute is 26 a condition precedent to maintaining a cause of action, our construction of § 3-904(g)(2) alone, pursuant to the rules of statutory interpretation, is consistent with the notion that the Legislature intended to incorporate[] the discovery rule as judicially developed. Benjam in, 162 Md. App. at 197-98, 873 A.2d at 477. Interpretation of § 3-904(g)(2) Most of the lang uage in § 3 -904(g) is n ot at issue. Th ere is no disp ute as to the plain meaning of subsection (g)(1) that a wrongful death action must be filed three years after the death of the injured person[] unless a claimant falls unde r an exception provided under subsection (g)(2) of the statute. The provisions in section 3-904(g)(1) are a condition preced ent to br inging a cause of actio n. The language of (g)(1) provides that an exception to the general rule exists. Before the 1986 revision, however, no exception was provided. Subsection (2)(I) defines occupational disease as a disease caused by exposure to any toxic substance in the person s workplace and contracted by a person in the course of the person s employment. Subsection (g)(2)(ii) provides that if an occupational disease was the cause of a person s death a wrongful death action shall be filed 1. [w]ithin 10 years of the time of death; or 2. [w ]ithin 3 years of the date when the cause of death was discovered, whichever is shorter. The Legislature set a mandatory ceiling on how long a claimant has to file a w rongf ul death action. If a claimant discovers, ten years and four months after death, that the injured person s death was ultimately caused by asbestos exposure, the claima nt is barr ed from bringin g an ac tion un der the s tatute. 27 Subsection (2)(ii)(2) does not specify the meaning of the phrase when the cause of death was discovered. The drafters provided no definition in either the statute itself, or within the Subtitle, for the phr ase ca use of death. 10 See Md. Cod e (1974, 2002 R epl. Vol.), § 3-901 of the C ourts an d Judic ial Proc eeding s. See Title 3, Subtitle 9 of the Courts and Judicial Procee dings. In Mr. B enjam in s case , the term cause of death could mean mesothelioma, as indicated in the death certificate; or the term could mean, exposure to asbestos which caused or contributed to the meso thelioma. T he term c ause of d eath is therefore ambiguo us. Notw ithstanding th e ambigu ity within the sta tute itself, we have had occasion to interpret the word discovered as used in other limitations statutes. The ordinary meaning of the word disco vered, or in the presen t tense d iscove r, is to ma ke kno wn (so methin g secre t, hidden , unknown, or previously unnoticed). W ebster s Third New International Dictionary 647 (2002). In Piselli v. 75th Street Medical, 371 Md.188, 193 -94, 808 A.2d 5 08, 510-11 (200 2), the United States Co urt of Appeals for the Fourth Circuit presented to this Cou rt a certified question as to whe ther the word discovered within the meaning of the medical malpractice statute of limitations incorporate d the discov ery rule. The lan guage of the statute pro vided, in relev ant part: (a) Limitations. An action for damages for injury arising out of the rendering of or failure to render professional services by 10 The petitioners argue that the plain language of the statute states that the cause of death in this case is mesothelioma, and as such, one does not have to look further for a definition. To the co ntrary, the Ben jamins con tend that the p lain langua ge of the sta tute means that the latent cause of death was asbestos exposure. As a result, they were not on notice a s to the lin k betw een m esothe lioma a nd the a sbestos expos ure unt il 2001 . 28 a health care pro vider . . . sh all be file d withi n . . . . * * * * (2) Three years of the date the injury was discovered. Md. Code (1974, 1998 Repl. Vol.), § 5-109(a)(2) of the Courts and Judicial Proceedings Article (emphasis add ed). In construing the term discovered, we held that the unambiguous language of § 5109(a)(2) does embody the traditional Maryland discovery rule . . . . Piselli, 371 Md. at 203, 808 A.2d at 517. Application of the discove ry rule involves a two-pron g test. The first prong, sufficiency of the actual knowledg e to put the claimant on inq uiry notice, concerns the nature and extent of actual knowledge necessa ry to cause an ordinarily diligent plaintiff to make an inquiry or investig ation tha t an injur y has bee n sustain ed. Benjamin, 162 Md. App. at 193-94, 873 A.2d at 475. See O Hara, 305 Md. at 302, 503 A.2d at 13 24; Pennwalt v. Nasios, 314 Md. 433, 453, 550 A.2d 1155, 1165-66 (noting that a plaintiff must have notice of the nature and cause of his or her injury). For inquiry notice, a person must have actual notice, either express or implied. Express know ledge is direct, whether written or oral, from sources cognizant of the fact[s]. Poffenberger, 290 Md. at 636-37, 431 A.2d at 681 (citation omitted). Implied no tice occurs when a plaintiff gain s know ledge suff icient to prom pt a reasonab le person to inquire further. Pennw alt, 314 M d. at 447, 550 A.2d at 1163. Constructive notice or knowledge will not suffice for inquiry notice. See Poffenberger, 290 29 Md. a t 637, 43 1 A.2d at 681. In Pennw alt, we discussed that actual notice was necessary to satisfy the first prong of the disco very rule: We stated in Poffenberger that a cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong. The defendant conceded that the plaintiff did not have express knowledge of the wrong . . . but instead argued that the plaintiff should have known of the wrong at th[e] time [of the injury]. In particu lar, the defen dant argued that the plaintiff had constructive knowledge of the defendant s breach and negligenc e . . . . We rejected this argum ent holdin g that constructive notice is insufficient to give a plaintiff knowledge of the wrong. Instead, we ruled that actual knowledge, either express or implied, is necessary. We defined implied actual knowledge as that know ledge that w ould in all probab ility have resulted from a reasonably diligent investigation pursued upon awareness of circumstances that would cause a reason able person to inves tigate. We rem anded the case to the trial court in order to resolve a factual dispute regarding whether . . . the plaintiff possessed knowle dge from which ac tual notice co uld be inferred. In other words, it was debatable whether the plaintiff had kno wledge o f sufficien t facts to caus e a reasona ble person to investigate further. In sum, Poffenberger extended the ameliorative effects of the discovery rule . . . and set the stage for future discussions regarding the function of implied knowledge in relation to the workings of the discovery rule. 314 Md. at 44 2-43, 550 A.2d at 1160 (citation omitted) (alterations adde d). The second prong, the sufficiency of the knowledge that would have resulted from a reasonable investigation, requires that after a reasona ble inve stigation of fac ts, a reasonably diligent inquiry would have disclosed whether there is a causal connection 30 between the injury and the wrongdoing.11 Benjam in, 162 Md. App. at 193, 873 A.2d at 475; O Hara, 305 M d. at 302, 50 3 A.2d at 1324 . See Pen nwalt, 314 Md. at 452, 550 A.2d at 1165; Baysinger v. Schmidt, 307 Md. 361, 367-68 514 A.2d 1, 4 (1986). The requirement for inquiry notice is that if a perso n investigate s diligently, the cau sal connec tion wou ld be revealed. In Re M offett, 28 F.2d 523, 525 (Md. 19 28) ( [N ]otice of fac ts which w ould incite a person of re asonable p rudence to inquire is no tice of all facts which re asonably diligent inquiry would develop . ). In Lumsden v. Design Tech Builders, Inc., 358 Md. 435, 444, 749 A.2d 796, 803 (2000), this Court applied the disco very rule to a rea l property statute. T he statute, in pertinent part, provided: (d) Limitations of actions. Any action arising under this subtitle shall be commenced within two years after the defect was discovered or should have been discovered . . . . Md. Code (1974, 1996 Repl. Vol., 1999 Cum. Supp.), §1 0-204(b)(3 )(d) of the R eal Property Article (emph asis add ed). The Court in Lumsden interpreted the term discovered to mean that the cau se of ac tion acc rued up on disc overy of the wro ng. Id. at 441, 749 A.2d at 799 ( Section 10-204(d) mandates that the period for a cause of action und er this subtitle comm ences w hen the cause o f action was d iscovered or sh ould ha ve bee n disco vered. ). In the present case, petitioners contend that because the word accrue was omitted 11 The issue of whether the seco nd pro ng of th e disco very rule w as satisf ied, sub judice, was not raised on appeal in the Court of Special Appeals. Other tha n a preliminary introdu ction, the issue w ill not be discuss ed in this opinio n. 31 from § 3-904(g)(2)(ii)(2), and from the survival statute § 5-1 13(b), the discovery rule does not apply to either statute. In answering this contention, we find the analysis of the Court of Special Appeals in this case most persuasive. The intermediate appellate court explained: In 1987, the 5-year period that was in the original enactment was changed to the current 10 years. Also in 1987, the legislature enacted section 5-113 . . . . In 1988, the enactment was amended to add § (c), defining proximate cause. While the language in the two limitations/repose provisions is not the same, i.e., section 5-113(b) provides that a claim has to be filed within 3 years of the discovery of facts from which it was known or reasonably should have been known that an occupational disease was the proximate cause of death, and section 3-904(g)(2)(ii)(2) provides that a claim has to be filed [w]ithin 3 years of the date when the cause of death was discovered, we conclude that, in each instance, the legislature incorporated the discovery rule as judicially developed. Benjam in, 162 Md. App. at 197-98, 873 A.2d at 477 (citations omitted). We agree. In our view, the Legislature incorporated the discovery rule into the wrongful death statute, § 3-904(g)(2), by using the phrase when the cause of death was discovered. This implies that the person maintaining a claim for wrongful death has a duty to discover the wrongful act (asbestos exposure) and the antecedent disease leading to the decedent s death (mesothelioma). This interpretation of the statute is consistent with the notion that the prescribed limitations per iod will com mence w hen the claim ants (benef iciaries) obtain knowledge of the injury and the cause of that injury which resulted in the de cedent s death. Further, our investig ation of the legisla tive intent reve als that the 19 86 pream ble to Senate Bill 864, now cod ified as § 3-904(g)(2)(ii), states that [a]s a matter of fundamental 32 fairness, a cause of action shou ld not be de emed to have accrued until the date that knowledge of the wr ong upo n which the action is based is discovered or should be discov ered. Ch. 374 of the Laws Maryland 1986. Consistent with our interpretation of the statute in Wadde ll, we review the language contained in the preamble and conclude that the Legislature intended th at an occu pational disease-related wrongful death action accrues when knowledge of the wrong upon which the action is based is discovered or should be discovered. Wadde ll, 331 M d. at 62, 6 26 A.2 d at 358 . The legislative intent is further clarified in the Senate committee report, which states that: Under this bill, the statute of limitations would not begin to run until facts are disc overed fro m which it becomes known or should become known that the occupational disease was the cause o f death . . . . * * * * The [legislative] intent of this bill is to provide that the 3-year statute of limitations in a wrong ful death a ction for a d eath caused by an occupational disease does not b egin to run until the discovery of facts from which it becomes known or reasona bly should become known that the occupational disease was the cause o f death . Senate Judicial Proceedings Committee, Summary of Committee Report, S.B. 864 at 1-2 (Md. 1986). Further, the Senate Bill Analysis stated that the ame ndment, [r]equires th at a wrongful death action be filed w ithin 3 years after the death of the injured person or th e date the dependents know or should have known of the wron gful ac t, which ever da te is later. 33 Senate Judicial Proceed ings Comm ittee, Bill Analysis, S.B. 864 at 1 (Md. 19 86). The Le gislature inten ded that the discovery rule apply to § 3-904(g)(2), in cases of wrongful death cau sed by occu pational dise ase, as indica ted in the language of the preamble, the bill analysis, and the committee report. Finally, we review the decisions of other jurisdictions that have determined that the discove ry rule applies to wrongful death statutes on the th eory that th e injury w as disco vered a fter the e xpiratio n of the limitation s period . The federal district court questioned w hether the discovery rule applied to the Illinois wrongful death statute, which provided that an action shall be commenced within two years after the death. In the Johns-Manville Asbestos Cases, 511 F.Supp. 1235, 1236 (1981). The longstanding rule in Illinois was that the limitations period prescribed in the wrongful death statute constituted a condition precedent, thus was a condition of liability, and operate[d] as a limitation of the liability itself, and not the remedy alone. They are grounded on the fact that the wrongful death action is considered wholly statutory a cause of action created by the General Assembly where none existed at common law. So the time period specified in [the wrongful death statute] is considered a condition attached to the right to sue and . . . not merely a statute of limitations. Id. (citations omitted) (alterations added). In Johns-Manville, several plaintiffs filed wrongful death actions seeking damages after the two-year limitations period had run, and argued that the discove ry rule should a pply because the injury was discovered after the limitations period. Id. The def endants asserted that application of the discovery rule would be at odds with the statutory directive and the 34 statute should be strictly c onstrue d. Id. at 1237. The court in Johns-Manville discussed several cases, including two Illinois wrongful death cases in which the discovery rule was applied after the two-yea r limitatio ns perio d had e xpired . Id. See Fure v. Sherman Hospital, 380 N.E.2d 1 376, 138 5 (Ill. 1978) (holding that the discovery rule should not be barred for wrongful death, if allowed for m ere wounding or injury ); Praznik v. Sport Aero, Inc., 355 N.E.2d 686, 690 (Ill. 1976) ( While a wrongful death action is a right created by statute, and . . . may not be ign ored, we a re not conv inced that in a ll cases the tw o-year period m ust begin to run at the moment o f death . . . . ). The Court in Johns-M anville considered the latent disease factor and held that [w]e are of the opinion that in a case such as this, where the injury occurred over a long period of time and not as a result of one sudd en trauma tic event, the p referred rule is that the cause of action accrues when the plaintiff knows or should know of an injury and that injury was probably caused by the wron gful acts of another. Id. at 1238 (citation omitted); Eisenmann v. Cantor, 567 F.Supp. 1347, 1354 (1983) (holding that although the Illinois wrongful death sta tute was a condition precedent to liability, the discovery rule applied ); White v. Jo hns-Ma nville, 693 P.2d 687, 693 (1985) (en banc) (holding, in a case involving mesothelioma, asbestos exposure, a condition precedent to the wrongful death statute and the discovery rule, that the wrongful death action accrues at the time the decedent s personal representative discovered or should have discovered the cause of action ). Acc ordingly, we hold that a person bringing a wrongful death action under § 3- 35 904(g)(2) has ten years from the time of the decedent s death to bring an action, or three years from the time the claimant(s) discover or should have discovered that an occupational disease contributed to or caused the decedent s death. Further, sufficient evidence existed to generate a genuine dispute as to the material facts. The evidence submitted was that Mrs. Benjamin, Carol Jeffers, and Robert Benjamin, III, were on inquiry notice for the first time in 2001 when Carol Jeffers discovered the connection betw een asbestos expo sure and mesothelioma. Mrs. Benjamin s knowledge of her husband s cancer diagnosis and the asbestos exposure are ma tters in dispute and are not subject to resolution by summary judgment. Thus, we affirm the Court of Special Appeals holding that the trial court erred when it granted the petitioner s motion for sum mary judgment on the wrongful death action. SURVIVAL ACTION Mrs. Benjamin, personal representative on behalf of the Estate of Robert L. Benjamin, Sr., contends that the intermed iate appellate court erred wh en it held that sufficient evidence existed to imply that M r. Benjam in was on inquiry notice. A ccording to Mrs. Be njamin, simply because Mr. Benjamin discussed his previous asbestos exposure with his physicians and he had express knowledge of the mesothelioma, does not equate to notice sufficient for a reasonable person to conduct an investigation to find a link between asbestos exposure and mesothelioma. Mrs. Benjamin maintains that the decedent did not have actual notice that the mesothelioma was caused b y his exposure to asbestos. Therefore, she concludes that the first 36 prong of the discovery rule was not satisfied. The trial court determined that evidence in Mr. Benjamin s medical report indicated specific examples and several references to asbestos exposure and the diagnosis of mesothelio ma. The tria l judge fou nd that the e vidence w as sufficien t to put Mr . Benjam in on inquiry notice, and held that [w]hen a patient volunteers information about his condition there can be no explanation other than he believes it is significant. The proffered f acts may or m ay not be relev ant to the patient[ ]s dis ease but he has a duty to investigate. He cannot raise the issue then ignore it. The Court of Special Appeals reviewed the trial court s finding regarding the survival action and held th at Mr. Be njamin had express knowledge of his mesothelioma and asbestos exposure, and the evidence was sufficient for the trial court to find that the decedent was on inquiry notice prior to his death in 1997.12 Benjam in, 162 Md. App. at 205, 873 A.2d at 481. The court held that a reasonable person would have investigated and discovered a causal 12 The Court of Special Appeals also addressed the issue of w hether the su rvival suit could be broug ht by Mrs. B enjamin in 2001, sinc e Mr. Be njamin died in 1 997. Benjam in, 162 Md. App. at 190-91, 873 A .2d at 473. [Mr. Benjamin] discovered his cause of action in early 1997 and died in May of the same year. Id. Thus, at the time of decedent s death, the statute of limitations had not yet run on his claim . Id. Mrs. Benjamin, as personal representative, brought the decedent s action for personal injuries when she discovered the causal connection between asbestos exposure and mesothelioma, more than three years after her husband s death . Id. If Mr. Benjamin had lived, the last date on which he could have brought a claim against the defendants for personal injuries relating to his occupational disease would have b een ea rly 2000. Accord ingly, we agre e with the intermed iate appellate court that Mr. Benjamin s survival action accru ed before his death, b ecause the claim [arose] out of personal injuries sustained by the deced ent during h is lifetime. Id. at 203, 873 A.2d at 480. Th us, the kno wledge o btained by M r. Benjam in during his lifetime cut short the limita tions pe riod w hich co ntinued to run f ollowi ng his d eath. 37 connection between mesothelioma and asbestos exposure by the state of general knowledge of occ upation al diseas es and a sbestos expos ure at the time. See id. Under the survival statute, if an occupational disease was the proximate cause of a claimant s death, damages can be claimed within three years from the date the action accrues but not later than 10 years f rom the da te of death . Md. C ode (197 4, 2002 R epl. Vol.), § 5-113 o f the Cou rts and Judic ial Proceedings. Maryland has applied both the discovery rule and the statute of limitations to survival claims for close to a century. See Geisz, supra, 313 M d. at 306 , 545 A .2d at 66 0 (and c ases cite d therein ). See Trimper, supra, 305 Md. at 35-36, 501 A.2d at 457-58 (holding that the statute of limitations applie s to survival actions). Mr. Benjamin s express knowledge of his exposure to asbestos products, coupled w ith his express kn owledg e of his diagnosis of mesothelioma, was sufficient to put him on inquiry notice during his lifetim e. See O Hara, supra, 305 Md. at 302, 503 A.2d at 1324 (noting that a plaintiff is on notice when he has knowledge of circumstances which would cause a reasonab le person in the position of the plaintiff[ ] to undertak e an investig ation whic h, if pursued with reasonable diligence, would have led to knowledge of the alleged [tort]. ). We agree with the Court of Special Appeals that, given the state of the general knowledge of occupational diseases and asbestos exposure in 1997, [a]ll of the facts necessary to make a claim were in existence at the time of th e diagnos is of meso thelioma, an d a reason able inquiry would have disclosed a cause of action. Benjam in, 162 Md. App. at 204, 873 A.2d 38 at 481; See Globe American, supra, 76 Md. App. at 534, 547 A.2d at 658 (noting that in a survival action, the cause of action accrues du ring the victim s lifetime); Trimper, 305 Md. at 52, 501 A.2d at 457-58 ( [I]nvolving latent development of disease, any cause of action of the injured person accru es either (1) when he ascertains, or through the exerc ise of reasonab le care and diligence should have ascertained, the nature and cause of his in jury, or (2) at d eath, w hichev er first oc curs. ). The decedent s cause of action for personal injuries accrued in 1997, du ring his lifetime, when he was placed on inquiry notice. The survival action was not filed until 2003. The person al repre sentativ e s cau se of ac tion, filed on beh alf of M r. Benjamin, under the survival statute, is barred by limitations because the claim w as brought more tha n three years after the date of accrual. Accordingly, the trial court did not err in granting petitioners motion for sum mary jud gmen t conce rning th e surviv al action . JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. THE PARTIES ABIDE THEIR CO STS. 39

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