Exemplifying the power of the statute of repose as a defense to claims based on decades-old conduct under Maryland law, the Fourth Circuit held that claims stemming from hazardous improvements to real property were barred by the state’s 20-year statute of repose. See Leichling v. Honeywell Int’l, Inc., 842 F.3d 848 (4th Cir. 2016).
Beginning in the 1950s, the Defendant used chromium ore processing residues (“COPR”) waste, which contains carcinogenic hexavalent chromium, as fill for 85 acres of land that the Maryland Port Authority later purchased to expand the Dundalk Marine Terminal. Defendant continued to supply COPR fill until 1976. Id. Plaintiffs – survivors of a longshoreman who worked at the terminal from 1973 to 2001 – alleged COPR exposure caused the decedent’s death from lung cancer. The U.S. District Court for the District of Maryland dismissed the claims as barred by Maryland's statute of repose, which limits to 20 years the period for actions for personal injury “resulting from the defective and unsafe condition of an improvement to real property.”
At issue on review was whether the decedent’s injuries resulted from an “alleged defective and unsafe condition of ‘an improvement to real property’” for the purpose of the statute of repose. Plaintiffs argued the statute of repose does not apply to claims arising from hazardous conditions that made the land “unsuitable for human use.” The use of COPR, Plaintiffs argued, therefore could not be considered an “improvement” covered by the statute of repose.
The court found that nothing in the statute’s text or legislative history indicated that hazardous conditions are excluded from the repose provision. The court noted the legislature had amended the statute to exclude asbestos alone. Significantly, the court considered the fill an “integral component” of the Marine Terminal expansion, settling its status as an improvement covered by the statute of repose. The court thereby embraced a “common sense” approach to defining an improvement to real property, focusing on actually existing indicia of added value. Accordingly, the court affirmed dismissal.