concurring:
I concur in the reasoning expressed as well as in the result reached in the opinion written for the Court by Judge Moore. I am concerned, however, about the problems which have arisen in the past, and may continue to arise, because of the concept that the time limitation contained in the wrongful death statute is not a true statute of limitation, to be applied only to the remedy, but is a substantive element of the cause of action, or a condition precedent to the right to maintain the action.
When the Court of Appeals first applied this interpretation, in State v. Parks, 148 Md. 477, 129 A. 793 (1925), following the overwhelming weight of authority throughout the country, the built-in time period was twelve *731months. The statute, patterned after the so-called Lord Campbell’s Act in England, had been enacted as Chapter 299, Laws of Maryland, 1852. It had created a new cause of action, one which did not exist at common law, and there was logic in holding that all of the provisions of the statute were substantive elements of the right it created.
It may be that the same logic continued to apply through a series of amendments over the years which changed the time for commencing the action, first to 18 months, then to two years, which enlarged the classes of persons who could assert the cause of action, and which broadened the measure of damages which could be recovered. But those changes signal a trend in legislative policy in the direction of bringing the tort of wrongful death more in line with other torts, at least remedially and procedurally.
By its enactment of Chapter 784 of the Laws of Maryland, 1971, the General Assembly further enlarged the time for commencement of an action for wrongful death from two years to three years. That change now appears in the Code as § 3-904 (f) of the Courts Article. Section 2 of Chapter 784 stipulated that its provisions be applied prospectively and retrospectively. The Court of Appeals held in Smith v. Westinghouse Electric, 266 Md. 52, 291 A. 2d 452 (1972) that retrospective application to revive a liability which ceased to exist before the effective date of Chapter 784 was a deprivation of the equal protection of the laws, and was unconstitutional because it violated the 14th Amendment to the Federal Constitution, and Article 23 of the Declaration of Rights of Maryland.
What gives rise to my concern is that the preamble to Chapter 784, quoted in full by Judge Moore in the opinion of the Court in the present case, tells me clearly that it was the wish of the General Assembly to do away with all differences between the time limitations applicable to wrongful death actions and those applicable to other torts.
If I correctly read what the General Assembly wanted to accomplish, I feel it is appropriate to point out that significant differences remain, and how they may be eliminated. The time limitation, although it is now the same *732in duration as the three year period fixed in Courts Article, § 5-101 for civil actions at law generally, remains in the statute which creates the cause of action. It therefore remains substantive, not procedural. It remains a condition precedent to the right to maintain the action, and is not a true statute of limitations. State v. Parks, supra, Smith v. Westinghouse Electric, supra.
A plea of limitations, filed timely (Maryland Rule 342 d 2), is not required in order to attack a wrongful death action filed late; the question may be reached by a demurrer, or by a motion for summary judgment, and no doubt could be raised for the first time at trial. The disabilities of infancy and insanity, Courts Article, § 5-201, which extend the time limits fixed in § 5-101 and other sections of the same subtitle, do not extend the time for filing a wrongful death action.
Elimination of — the built-in time period, consistently construed as a substantive element of the cause of action, would make a wrongful death action merely one of the many civil actions at law subject to the true statutes of limitation.1 If the General Assembly wishes, as it indicates in the preamble to Chapter 784 that it does, to remove the differences by which “citizens may be misled to their detriment by the variance between the respective statutes of limitations resulting in an undue forfeiture of rights”, it can do so by amending Courts Article, § 3-904 (f) to make it say, “An action under this subtitle accrues upon the death of the injured person.”
. It should be noted that if the wrongful act which caused the death was assault and battery, the one year period fixed in Courts Article, § 5-105, would appear to apply.