In this appeal we consider whether a tort action, filed within the general three year statute of limitations, may proceed against the State of Maryland (“State”) when the State is made a party to the suit after the three-year filing deadline specified by the Maryland Tort Claims Act (“MTCA”). Kathy Ferguson, appellant, filed a tort action in the Circuit Court for Baltimore City against State employee Georgia Bohlayer Loder, appellee, within three-years after the cause of action accrued. Loder moved to dismiss, arguing that she was entitled to qualified immunity. Ferguson then amended her complaint to add the State as a defendant, but did so after the MTCA’s three year deadline for filing a tort action against the State. Consequently, the circuit court dismissed both the State and Loder, based on tort immunity.
Ferguson does not dispute Loder’s immunity on appeal, rather, she contends that her suit should have proceeded
For the reasons that follow, we conclude that the theories suggested by Ferguson for tolling the MTCA’s three-year filing deadline lack merit, and therefore, we shall affirm the judgment.
Facts and Proceedings
On March 1, 2005, Ferguson was driving northbound on Washington Boulevard when a vehicle driven by Loder allegedly ran a red light and struck Ferguson. At the time of the collision, Loder was a State employee, operating a State-owned vehicle in the course of her employment. On March 11, 2005, the State Treasurer received a letter from counsel for Ferguson giving notice of her intent to bring a personal injury claim “as a result of negligence [by a State agent, servant, and/or employee].”
Before filing her negligence action, Ferguson pursued a workers’ compensation claim. Once that claim was resolved, Ferguson entered negotiations with the State on her personal injury claim, and ultimately rejected a settlement offer.
On December 13, 2007, Ferguson filed a single count negligence action against Loder. The State was not named in the complaint, and Loder was not identified as a State employee. The Attorney General’s office, acting on behalf of Loder, filed an answer on January 29, 2007, which included a defense of immunity.
On March 12, 2007, the Attorney General’s office filed a motion to dismiss or for summary judgment on behalf of Loder, arguing that Loder enjoyed qualified tort immunity under Maryland Code (2004 Repl. Vol., 2008 Supp.), § 12-101 et. seq. of the State Government Article 2 (“SG”) and Maryland Code (2006 Repl. Vol., 2008 Supp.), § 5-522 of the Courts and Judicial Proceedings Article (“CJ”). The timing of this motion—approximately a week and a half after the three year anniversary of the collision—was significant because the MTCA requires that a party bringing an action against the State file suit within three years after the cause of action arises. SG § 12-106(b).
Ferguson responded by filing an amended complaint on March 14, 2007, naming the State as a defendant, specifying that Loder was acting within the scope of her employment with the State, and adding a count against the State for negligent entrustment. Ferguson also filed a “Motion to Substitute Party by Interlineation” on March 26, 2007, in which she argued that LE § 9-902(d) extended the MTCA’s
At the conclusion of a hearing on May 30, 2008, the circuit court granted the motion to dismiss the amended complaint. 4 First, the court distinguished the conditions precedent for suit under the MTCA from a statute of limitations, and found that the sixty day extension under LE § 9-902(d) applied only to the latter. Second, the court found that the amended complaint did not correct a misnomer but instead added a new party and, thus, did not relate back to the original complaint. Finally, the court found that the substantial compliance argument advanced by Ferguson was insufficient “in this particular context.” This appeal followed.
Standard of Review
In reviewing a motion to dismiss, “our task is confined to determining whether the trial court was legally correct in its decision to dismiss.”
Zimmer-Rubert v. Bd. of Educ.,
Discussion
Enacted in 1981, the MTCA waived the State’s sovereign immunity from tort actions, subject to certain conditions and limitations. SG § 12—104(a)—(b);
Condon v. State,
A claimant may not institute an action under this subtitle unless:
(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim;
(2) the Treasurer or designee denies the claim finally; and
(3) the action is filed within 3 years after the cause of action arises.[ 5 ]
The sole focus of this dispute is the three year deadline for filing set by SG § 12—106(b)(3). Both parties acknowledge that § 12-106(b)(3) “is not a statute of limitations,” but is instead “a condition precedent to the initiation of an action under the [MTCA].”
See Johnson v. Md. State Police,
331
Md. 285, 290,
We have previously defined a condition precedent as a condition attached to the right to sue at all. It operates as alimitation of the liability itself as created, and not of the remedy alone. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right. Conversely, a statute of limitations affects only the remedy, not the cause of action. A condition precedent cannot 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 precedent is of course subject to abrogation by the General Assembly....
Id.
at 127-28,
As a result of this distinction, the Court of Appeals has repeatedly held that statute of limitations tolling principles are inapplicable to conditions precedent.
See, e.g., State v. Sharafeldin,
1. Labor and Émployment Article § 9-902(d)
Ferguson first contends that LE § 9-902(d) extends the MTCA’s three year deadline by two months. Title 9, subtitle 9 of the Labor and Employment Article addresses actions against third parties for injuries covered by worker’s compensation. The statute gives parties paying a worker compensation claim the exclusive right to sue a responsible third party for a period of two months after an award of compensation. LE § 9-902(c). Accordingly, LE § 9-902(d) suspends the limitations period applicable to the injured worker’s cause of action during the time when the payor has the exclusive right to sue: “The period of limitations for the right of action of a covered employee or the dependents of the covered employee against the third party does not begin to run until 2 months after the first award of compensation made to the covered employee or the dependents under this title.”
Ferguson argues that this provision should be read broadly as applying to all time-restricted rights, not just statutes of limitations. Specifically, Ferguson asserts that the use of the more general term “limitations” (as opposed to “statute of limitations”), and the preceding phrase “for the right of action,” demonstrates a legislative intent to extend both time restricted remedies and rights. Ferguson notes that this reading is consistent with the legislature’s mandate that MTCA “be construed broadly, to ensure that injured parties have a remedy.” SG § 12-102;
Condon,
The State responds with two points. First, the State argues that reading LE
Whether the legislature intended LE § 9-902(d) to apply to conditions precedent is not clear from the plain language of the statute. “Where a statute is plainly susceptible of more than one meaning and thus contains an ambiguity, courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment.”
Tucker v. Fireman’s Fund Ins. Co.,
The interpretive aids offered by Ferguson are of little assistance. The legislative mandate to construe the MTCA broadly has no application to our interpretation of LE § 9-902(d), which is contained in an entirely different act. We also give no weight to Court of Appeals’ references to conditions precedent as “limitations.” Sharafeldin, which Ferguson cites for this proposition, explained the use of this term while addressing the counterpart , statute to the MTCA for contract actions against the State:
Perhaps keying on the word “limitátions” used by the [Report of the Governor’s Commission to Study Sovereign Immunity], but without any documented critical analysis, the Legislature used that word in the title to the bill. The descriptive title stated the purpose of the bill to be to provide that the State and its various units may not raise the defense of sovereign immunity in the courts of this State in an action in contract based on certain written contracts, and “to set forth certain exclusions and limitations applicable to such actions.”
Several “exclusions and limitations” were provided in the bill: the waiver applied only to breaches of written contracts executed by an official or employee acting within the scope of his/her authority; there would be no liability for punitive damages; and the action was barred if not filed within the one-year period. The best that can be said for this, from Sharafeldin’s point of view, is that the Legislature used the word “limitations” as a generally descriptive term that probably included the requirement of bringing suit within one year, but not in the technical sense of a true statute of limitations. In Frankel v. Board of Regents,361 Md. 298 , 308,761 A.2d 324 (2000), we referred to § 12-202 as providing a “period of limitations,” again as a generally descriptive term, and in [Baltimore County v. RTKL Associates,380 Md. 670 ,846 A.2d 433 , (2004) ], we referred to a similar statute, applicable to actions against chartered counties, as a statute of limitations but noted that wedid so as a matter of convenience and expressed no view whether it, or its counterparts, such as § 12-202, ‘are true statutes of limitations or conditions on the right to sue.’ RTKL, supra, 380 Md. at 677, n. 1 ,846 A.2d 433 . In neither case was the issue now before us presented.
Sharafeldin
went on to hold that the “limitations” in SG § 12-202 were in fact conditions precedent to the right of action.
Id.
at 148,
Nonetheless, Ferguson’s argument that the phrase “limitations for the right of action” makes LE § 9-902(d)’s tolling provision applicable to all time restricted rights has some
facial appeal. The two month tolling provision now contained in LE § 9-902(d) was added to the Workers’ Compensation Act in 1955 as a second paragraph to Maryland Code (1951), § 59 of Article 101.
Smith v. Bethlehem Steel Corp.,
When any employee has a right of action under this section against a third party, the period of limitations for such action, as to such employee, shall not begin to run until two months after the first award of compensation made to such employee under this article, and this section shall apply to past and future rights of action under this section. 6
Id.
at 216,
Prior to the enactment of this provision, the Court of Appeals held in
State use of Stasciewicz v. Parks,
Though there is no legislative history associated with the 1955 enactment of the tolling provision,
Smith,
For one, the MTCA was not enacted until 1981—nearly 30 years after the addition of the tolling provision to the Workers’ Compensation Act. Thus in order to apply LE § 9—902(d) to the MTCA, we would have to conclude that the legislature used the phrase “right of action” with the intent to apply the two month tolling period
The characterization of LE § 9-902(d) as an exception to the general statute of limitations set by CJ § 5-101 also precludes its application to the MTCA.
See Hayes,
Waddell
addressed the question of whether CJ § 5-201, which tolls the general period of limitations in CJ § 5-101, also tolls the time limitation in the Wrongful Death Statute, CJ § 3-904(g).
In
Johnson,
the Court cited
Waddell
to hold that CJ § 5-201 did not extend the MTCA’s then 180-day administrative claim requirement.
7
We similarly lack sufficient indication, “either directly or by necessary implication,” of an intent by the Legislature to apply LE § 9-902(d) to the MTCA’s three year filing deadline, and thus we refuse to give it such an application by “judicial fiat.”
2. Relation Back
Ferguson next contends that her amended complaint should relate back to the filing date of her original complaint because it merely corrected a misnomer of the proper defendant. Indeed, an amendment that corrects the name of a party relates back to the original filing date.
Williams v. Hofmann Balancing Techniques, Ltd.,
Under Ferguson’s theory, “[tjhe corrected misnomer relates back to the original filing, because all parties—plaintiff and defendant—knew prior to the running of the statutory deadline that the correct defendant had been misnamed.” The State counters by arguing that the relation back doctrine does not apply to a condition precedent, and that the amended complaint did not correct a misnomer, but instead, it added a new party.
The parties have not cited any case law as to whether the relation back doctrine applies to a condition precedent, nor are we aware of any decision by a Maryland court that directly addresses this question.
See Knauer v. Johns-Manville Corp.,
The federal courts appear to allow relation back in suits under the Federal Tort Claims Act (FTCA), which is similar in many respects to the MTCA.
8
Most recently, the Seventh
Circuit permitted relation back in an FTCA suit involving circumstances much like those here.
Jackson v. Kotter,
The Seventh Circuit’s decision to allow relation back in a FTCA suit relied heavily on
Scarborough v. Principi,
In response to the government’s argument that the EAJA’s waiver of sovereign immunity for fees was conditioned on strict compliance with the filing requirements, the Court recounted its decisions in
Irwin v. Department of Veterans Affairs,
Invin involved an untimely filed Title VII employment discrimination complaint against the Government. Although the petitioner had missed the filing deadline, we held that Title VII’s statutory time limits are subject to equitable tolling, even against the Government. Similarly, in Franconia, we rejected an “unduly restrictive” construction of the statute of limitations for claims filed against the United States under the Tucker Act.
In those decisions, we recognized that “limitation principles should generally apply to the Government ‘in the same way that’ they apply to private parties.” Once Congress waives sovereign immunity, we observed, judicial application of a time prescription to suits against the Government, in the same way the prescription is applicable to private suits, “amounts to little, if any, broadening of the congressional waiver.” We further stated in Invin that holding the Government responsible “is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation.”
Scarborough,
A number of other federal courts of appeal have either expressly allowed relation back under the FTCA where the United States was substituted for an improperly named defendant, or have implicitly recognized the possibility of relation back under the FTCA but refused to apply it based on a failure to give timely notice to the United States.
9
See, e.g.,
Roman,
Federal decisions refusing to allow relation back have done so in the context of amendments that sought to add new claims or parties to the initial administrative claim, rather than the subsequent district court complaint.
See, e.g., Lee v. United States,
Notwithstanding the federal practice of allowing relation back under the FTCA, several considerations compel us to reach an opposite result regarding the MTCA. First, we have described federal cases involving the relation back of amendments as having “limited value because Federal Rule 15(c) contains an express relation back provision, while the Maryland rules do not.”
Williams,
Second, we question the Seventh Circuit’s conclusion that “Supreme Court precedent [established by
Scarborough
] applies with equal force to the judicial application of [the federal relation back rule] to an FTCA action against the United States.” The Supreme Court observed that the statutory
requirement at issue in
Scarborough
was a “think twice prescription that stems the urge to litigate irresponsibly” and did not “serve an essential notice giving function.”
Scarborough,
Finally, while the Supreme Court in
Irwin
recognized that a jurisdictional prerequisite to the federal government’s waiver of sovereign immunity may be subject to equitable tolling, the Court of Appeals of Maryland declined to follow
Invin
with respect to conditions precedent under Maryland law. As noted above, in
Sharafeldin
the Court considered whether SG § 12-202’s one-year filing deadline for contract actions against the State was a statute of limitations waivable by State agencies, or a condition to the right of action itself.
Prior to Irwin, both [of 28 U.S.C. 2401(b)’s limitations] requirements had been regarded as jurisdictional, and the failure to comply with either one doomed the action. There are now conflicting decisions as to whether equitable tolling may excuse a failure to comply with either or both.
Irwin did not involve or directly address statutes such as 28 U.S.C. § 2401, and much of the language in the opinion was thus essentially obiter dicta with respect to that statute. Most of the lower Federal courts [that] have given credence to that language; however, have shifted their previously-held ■view, and have applied equitable tolling principles to untimely claims made to the administrative agency or to untimely lawsuits after denial of the claim. Not all of the Federal courts have taken that approach, and there appears to be a split in some of the circuits.
Id.
at 146,
The Court, however, ascribed only limited relevance to this line of federal jurisprudence:
We are not bound, of course, by any of these Federal decisions, including Irwin. Their only relevance is in how they might impact our view of the legislative intent behind SG § 12-202, which is the controlling consideration. If that statute had been enacted after 1990, we might embrace the fiction that the Legislature was aware of the Supreme Court’s analysis in Irwin and construe § 12-202 in accordance with it. The fact is, however, that when the Legislature first waived immunity in contract actions in 1976 and later re-enacted that waiver as part of the State Government Article, the Federal decisions, including the Supreme Court’s decision in Soriano[ v. United States,352 U.S. 270 ,77 S.Ct. 269 ,1 L.Ed.2d 306 (1957) ], were nearly all to the effect that the analogous time limitations were, indeed, conditions to the waiver of immunity and were not subject to waiver or tolling. For our purposes, therefore, the relevant Federal law is that which existed before Irwin. Allied with the principle applied in the pre-Irwin decisions, arising from the language of the statute itself, is the well-recognized but more general rule, to which we have adhered, that, where a statute creates a new cause of action and fixes a time within which a suit under the statute must be filed, “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.”
Id.
at 146-17,
Thus,
Sharafeldin
established a bright line between the treatment of conditions precedent under Maryland law, and the more liberal treatment of jurisdictional requirements under the FTCA and similar statutes by recent federal court decisions. Moreover, like SG § 12-202, SG § 12-106 was enacted prior to the Supreme Court’s decision in
Irwin,
thus we cannot impute an awareness of
Irwin
onto the legislature at the time of the enactment.
10
We, therefore,
Even if we were to apply the relation back doctrine to SG § 12-106, Ferguson’s amended complaint did not correct a misnomer and, thus, does not relate back to the original filing date. As the State points out, Ferguson’s amended complaint “added an entirely new party, the State of Maryland, and ...
the State is a legal entity separate and apart from its employee.”
See Nam v. Montgomery County,
3. Substantial Compliance
Ferguson finally contends that her case should be allowed to proceed because she substantially complied with the MTCA. Ferguson argues that we should recognize substantial compliance under the MTCA in this case because within the three year deadline the State was aware of the claim against its employee, knew the action should have been filed against the State, and answered the complaint on behalf of its employee.
We have defined substantial compliance as a “communication that provides the State requisite and timely notice of facts and circumstances giving rise to the claim.”
Candelero,
“The doctrine of substantial compliance, however, is not license to ignore the clear mandate of the MTCA,” Chinwuba[ v. Larsen],142 Md.App. 327 , 355,790 A.2d 83 (2002), and “cannot serve as a springboard for judicial legislation. Provisions such as this, and the canon of construction favoring a liberal interpretation of remedial legislation, are helpful in resolving ambiguities in statutes, but do not permit us to expand the statute to afford relief where the words of the statute bar that relief.” Simpson v. Moore,323 Md. 215 , 227,592 A.2d 1090 (1991).
Id.
at 196-97,
To illustrate this point, we compared
Simpson
with
Conaway v. State,
In Simpson, the case was dismissed because the claimant failed to file a written claim within 180 days after the accident. The claimant argued that the legislature intended the—notice requirement in SG § 12-106(b)(l) to contain the same provision as that contained in [CJ § 5-306] permitting waiver of the notice requirement, under certain circumstances, in a case filed under the Local Government Tort Claims Act. The Court of Appeals declined to incorporate that waiver provision into SG § 12-106, stating that the legislature could have done so, if it wanted, by amendment. Thus, because there was an “outright failure” by the claimant to file a written claim, and compliance was “a condition precedent to the maintenance of a claim against the State,” the doctrine of substantial compliance was not applicable. Simpson, 323 Md. at 228-29 ,592 A.2d 1090 .
In Conaway, a prisoner filed a timely claim with the Treasurer, but did not demand specific damages as required by SG § 12-107(a). Applying the doctrine of substantial compliance, we held that while the claim “did not literally comply with all of the requirements of SG § 12-107(a),” it provided the State with “sufficient written notice of the circumstances” of the accident to allow it to “investigate the claim and respond either by settlement or defense.” Conaway,90 Md.App. at 250 ,600 A.2d 1133 (quoting Adams v. United States,615 F.2d 284 , 289 (5th Cir.1980)). In so holding, we distinguished Simpson, stating that the claimant in that case had “provided no notice to the State.” Conaway,90 Md.App. at 241 ,600 A.2d 1133 .
Id.
at 197-98,
Following
Simpson,
we concluded in
Candelero
that substantial compliance did not apply because untimely submission of notice amounts to “an outright failure to comply.”
Id.
at 198,
More recently, the Court of Appeals affirmed our rejection of a substantial compliance argument where the claimant failed to provide written notice to the State Treasurer within one year of the injury.
Pope,
This case is not precisely analogous to
Pope, Simpson
and
Candelero
because it involves SG § 12-106(b)(3)’s deadline for filing the action, rather than SG § 12-106(b)(l)’s notice requirement. Nonetheless, the same rationale applies here. There is nothing ambiguous about the three-year filing deadline set by the legislature. Thus, we cannot use substantial compliance as “a license to ignore the clear mandate of the MTCA.” Ferguson’s failure to sue the State within three years of the date of her accident was an outright failure to
comply with the MTCA, and the
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. These theories are reflected in the following questions presented by Ferguson:
1) Whether [LE § 9-902(d) ] extends the deadline to file suit in third party actions against the State of Maryland.
2) Whether amending by interlineations to substitute the State for its employee relates back to the date the lawsuit was filed.
3) Whether filing a lawsuit against a State employee within three years for tortious conduct committed in the course of State employment substantially complies with the MTCA, if the State Attorney General enters his appearance within three years of the date of the accident.
. The MTCA is codified in Title 12, Subtitle 1 of the State Government Article.
. Loder also joined in the motion, and repeated her claim of qualified immunity under the MTCA.
. The circuit court denied the original motion to dismiss at a prior • hearing on April 21, 2008, finding that Ferguson's amended complaint rendered the motion moot.
.
Condon,
. The provision was later moved to § 58 of Art. 101, and eventually recodified without substantive modifications as LE § 9-902(d).
Smith,
. This claim requirement has since been extended to one year. See SG § 12—106(b)(1).
. Like the MTCA, ‘Ttjhe FTCA waives the sovereign immunity of the United States with respect to tort claims,
see
28 U.S.C. § 2674, and
provides the exclusive remedy to compensate for a federal employee's tortious acts committed within his or her scope of employment.
See
28 U.S.C. § 2679.''
Roman
v.
Townsend,
. Fed. R. Civ. Pro. 15(c)(1)(C) stipulates that an amendment changing a party name relates back only when the party being brought in by the amendment receives notice of the action within the period specified by Fed. R. Civ. Pro. 4(m) for serving the summons and complaint.
. SG § 12-106(b) was twice amended after Irwin, but neither of those amendments reflect a response to the Supreme Court’s decision. The 1994 amendment modified SG § 12-106(b)(3)'s filing deadline, and the 1995 amendment extended SG § 12-106(b)(l)’s deadline for submitting a claim to the State Treasurer. See 1994 Md. Laws 2640; 1995 Md. Laws 2612.