October 1 Brings New Wrongful Death Limitations Accrual for Acts of Criminal Homicide
October 1 is around the corner, which in Maryland means that several new laws from the spring legislative session will take effect. One such law will change (or perhaps clarify) when the 3-year statute of limitations period begins to accrue in wrongful death and survival actions where the underlying tort is the result of an act of criminal homicide. In effect, the statute attempts to remove the shield of limitations from not just the murderers who get caught quickly, but also from those who those who avoid detection for many years.
Under the previous laws, the limitations period began to accrue at the time that the cause of action arose, i.e. the death. The only defined exception was under MD Code, Courts & Judicial Proceedings 5-203, which states that if knowledge of the accrual of a cause of action is kept from a party due to the fraud of an adverse party, the cause of action would not begin to accrue until the moment that the party discovered, or by the exercise of ordinary diligence should have discovered the fraud. In rare instances when a wrongful death action was premised upon a criminal act, such as murder, section 5-203, by its terms, did little to help the victim’s estate or surviving relatives. For example, if a person was murdered, but the identity of the killer was not known, it would generally not be the result of fraud by the perpetrator that prevented the injured party from discovering the cause of action. After all, not admitting to committing a crime is different from committing a fraud to prevent one from discovering the crime’s existence. Many jurisdictions have similar laws to Maryland regarding limitations accrual, either by statute or common law, and have had occasion to face the same problem, such as when the police arrest a suspect 10 years after a murder. There has generally been no firm legal position to protect the injured estate or dependent from the limitations period expiring in these situations before they could ever discover the perpetrator of the crime. Having dealt with this issue before the trial courts and research appellate cases from across the country that have dealt with this issue, I can tell you that the solutions found by courts has largely been to completely ignore the laws as written and create whatever new rule was required under the circumstances to allow the plaintiff to defeat a defendant’s limitations argument. Often, these rulings have been flatly inconsistent with clear and established laws of the jurisdiction. The Maryland legislature has now passed a law that will directly deal with the accrual problem in the cases of criminal homicides, which should prevent the courts from having to choose between butchering the law or allowing an alleged murderer to avoid the prospect of civil liability simply because he/she was good at covering their tracks.
Under the new law, which amends section 3-904(g) of the Courts Article and adds new section5-203.1 to the Courts Article, the legislature has clarified when the accrual period will begin to run when the cause of action is brought on by a criminal homicide. New 3-904(g) maintains the three-year statute of limitations for wrongful death, but for wrongful death actions arising from a criminal homicide under state or federal law, the new statute states that if knowledge of a cause of action or the identity of a person whose wrongful act contributed to a homicide is kept from a party by the conduct of an adverse party or an accessory or accomplice of an adverse party, the cause of action shall be deemed to accrue at the time the party discovered or should have discovered by the exercise of ordinary diligence the homicide and the identity of the person who contributed to the homicide. Under the statute, a presumption will exist that the party should have discovered the identity of the person who contributed to the criminal homicide after a charging document has been filed against the adverse party and made available to the public. Section 5-203.1 enacts the exact same rules of accrual with respect to survival actions. The new legislation takes effect quasi-retroactively, in that it applies to any case where the limitations period would not be expired until after October 1, 2012. However, it will not be retroactively applied to limitations periods that will have expired before October 1, 2012.
Looking at the new statute, there does not appear to be much difference with it and the fraud rule found in section 5-203. The only real difference is that under 5-203, the concealment of the conduct must be ocassioned by “fraud” of the adverse party, whereas under the new statutes, the concealment need only resulted from the “conduct” of the adverse party. Again, though, does this change really alter the accrual period where a person commits a homicide and does nothing to conceal his/her identity other than not confess to authorities? I would argue that the new statute has been poorly worded if that was the intent. However, I have no doubt that the courts will interpret the new statutes so as to favor the plaintiffs who bring the action.