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Bell v. Heitkamp Inc.4/28/1999
ather. In a letter dated September 1, 1989, the State Treasurer denied his claim stating that she believed "that the State was not at fault" in his father's death. Approximately six months later, Lopez filed a wrongful death action in the Circuit Court for Prince George's County naming the Maryland State Highway Administration as a defendant. The State countered with a motion for summary judgment arguing that Lopez had failed to file his claim with the Treasurer within 180 days of his father's death and, therefore, he did not satisfy the § 12-106(b) condition precedent to bringing the action. Judge Joseph S. Casula felt constrained to accept the State's contention and granted its motion for summary judgment, although he recognized that this interpretation was "harsh" and acknowledged that he would be "very happy to be reversed" on appeal." Lopez, 327 Md. at 489 (footnote omitted).
The question presented in Lopez was narrow, viz: Did the minor plaintiff's injuries arise at the time of his father's death or at the time of the child's birth? Id. at 489-90. The SHA argued that the wrongful death claim of the minor plaintiff arose on the date of Rodriguez's death - and since notice had not been given to the Treasurer within six months of that date, the minor plaintiff's claim should be barred. The Court held that his injuries occurred at the time of the child's birth and thus his notice to the Treasurer was timely. Id. at 494. In so ruling, the Court mentioned, in passing, that the determination of paternity, pursuant to section 3-904(h) of the Courts and Judicial Proceedings Article of the Maryland Code, had nothing to do with the issue of what loss or injury the child will suffer at his or her birth. Id. at 493.
Appellees argue:
"Although Lopez addressed the 180-day provision to file a claim with the Maryland State Treasurer pursuant to MTCA [Maryland Tort Claims Act], the Court of Appeals does not then deny Lopez' right to bring his action under the Wrongful Death Statute once the initial MTCA procedures are satisfied. To the contrary, the Court of Appeals cites the identical Wrongful Death statutory provision at issue in this case, § 3-904(h). Lopez, the Court of Appeals holds, would have to prove pursuant to the wrongful death statute that he is the son of his father, since his parents were unmarried. Id. at 491. The court did not deny his right to maintain a wrongful death action although he was not a viable fetus at the time of his father's death. Viability was irrelevant because Lopez was born alive."
While it is true that the Lopez Court did not deny the minor plaintiff a right to bring a wrongful death claim, it is equally true that no one argued that the putative father had never acknowledged paternity of the minor plaintiff. Lopez, therefore, is inapposite.
E. Conclusion
The rulings of the trial court concerning the inapplicability of the doctrine of res ipsa loquitur, the rejection of appellants' punitive damage claim, and the rejection of the minor plaintiff's wrongful death claim are affirmed. The court's grant of summary judgment in favor of the appellees as to liability is reversed.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; COSTS TO BE PAID 50 PERCENT BY APPELLANTS AND 50 PERCENT BY APPELLEES.
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