Christensen v. Philip Morris USA Inc.6/8/2005
of the wrong"). The effect of the discovery rule is that it "tolls the accrual of the limitations period until the time the plaintiff discovers, or through the exercise of due diligence, should have discovered, the injury." Frederick Road Ltd. P'ship., 360 Md. at 95-96. " onstructive knowledge, based on legal presumptions, will not suffice," however. Benjamin v. Union Carbide Corp., ____ Md. App. ____, No. 959, September Term 2004, slip op. at 22 (filed May 3, 2005).
Ordinarily, " ecause the term `accrues' is not defined in the statute, the question of when a cause of action accrues is left to judicial determination." Pierce, 296 Md. at 664; see Frederick Rd. Ltd. P'Ship, 360 Md. at 95; United Parcel Serv., Inc. v. People's Counsel for Balt. County, 336 Md. 569, 579 (1994); Booth, 304 Md. at 619. Depending upon the nature of the assertions with respect to the limitations plea, however, resolution of whether the action is barred may be one of law, one of fact, or one of law and fact. Frederick Rd. Ltd. P'ship, 360 Md. at 95; see also CSX Transp., Inc. v. Miller, 159 Md. App. 123, 150 (2004)(examining the distinction between accrual as a matter of law and accrual as a matter of fact, and concluding that "the question was, indeed, one of fact for the jury to resolve."), cert. granted, 384 Md. 581 (2005). If "the viability of a statute of limitations defense hinges on a question of fact ..., the factual question is ordinarily resolved by a jury, rather than by a court." Doe v. Archdiocese of Wash., 114 Md. App. 169, 178 (1997); see Moreland v. Aetna U.S. Healthcare, Inc., 152 Md. App. 288, 296 (2003). As the Sheff Court recently explained, 382 Md. at 244:
Like any other issue that is fact-dependent, if there is any genuine dispute of material fact as to when the plaintiffs possessed that degree of knowledge, the issue is one for the trier of fact to resolve; summary judgment is inappropriate. If there is no such genuine dispute, however, and the question of whether the plaintiffs were on inquiry notice more than three years before their suit was filed can be determined as a matter of law, summary judgment on that issue is, indeed, appropriate.
(Internal citation omitted).
Addressing "the nature of the knowledge necessary, under the discovery rule, to start the running of the limitations period," Poffenberger, 290 Md. at 636, the Poffenberger Court said:
Notice is of two kinds - actual and constructive. Actual notice may be either express or implied. If the one, it is established by direct evidence, if the other, by the proof of circumstances from which it is inferable as a fact. Constructive notice is, on the other hand, always a presumption of law. Express notice embraces not only knowledge, but also that which is communicated by direct information, either written or oral, from those who are cognizant of the fact communicated. Implied notice, which is equally actual notice, arises where the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him, by the exercise of due diligence, to a knowledge of the principal fact.... It is simply circumstantial evidence from which notice may be inferred. It differs from constructive notice, with which it is frequently confounded, and which it greatly resembles, in respect to the character of the inference upon which it rests; constructive notice being the creature of positive law, resting upon strictly legal presumptions which are not allowed to be controverted, whilst implied notice arises from inference of fact.
As the knowledge imputed by the just defined constructive notice, if deemed to be sufficient to activate the running of limitations, would recreate the
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