PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2263

JANET D. LEICHLING, individually, surviving spouse, and 

Personal Representative of the Estate of John G. Leichling; 

DAWN M. ROSE, surviving daughter of John G. Leichling; 

GREGORY A. LEICHLING, surviving son of John G. Leichling; 

CATHERINE L. TIMMS, surviving daughter of John G. Leichling; 

HELEN CATTERTON, surviving daughter of John G. Leichling; 

JOHN R. LEICHLING, surviving son of John G. Leichling,

Plaintiffs - Appellants,

v.

HONEYWELL INTERNATIONAL, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:14-cv-02589-RDB)

Argued: October 25, 2016 Decided: December 2, 2016

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, 

in which Judge Agee and Judge Diaz joined.

ARGUED: Jeffrey John Utermohle, LAW OFFICES OF PETER G. ANGELOS, 

P.C., Baltimore, Maryland, for Appellants. Michael David 

Daneker, ARNOLD & PORTER LLP, Washington, D.C., for Appellee. 

ON BRIEF: Gary J. Ignatowski, Patrick A. Ciociola, LAW OFFICES 

OF PETER G. ANGELOS, P.C., Baltimore, Maryland, for Appellants. 
2

Anne P. Davis, Eric A. Rey, Allyson Himelfarb, ARNOLD & PORTER 

LLP, Washington, D.C., for Appellee.
3

THACKER, Circuit Judge:

The survivors of John R. Leichling sued Honeywell 

International, Inc., alleging that Mr. Leichling’s fatal lung 

cancer resulted from exposure to toxins during his employment at 

the Dundalk Marine Terminal in Baltimore, Maryland, where 

Honeywell operates a chemical manufacturing plant. Decades 

earlier, Honeywell began using chemical refuse to create a 

landmass on which the Marine Terminal later sat. The district 

court dismissed the suit pursuant to Maryland’s 20-year statute 

of repose, which bars untimely claims for injuries resulting 

from a “defective and unsafe condition of an improvement to real 

property.” Md. Code Ann., Cts. & Jud. Proc. § 5-108(a). The 

court reasoned that, because the refuse filled otherwise aquatic 

areas and allowed development of the Marine Terminal, it was an 

improvement to real property. This appeal followed and, for the 

reasons below, we affirm. 

I.

A.1

From 1854 through 1985, Honeywell International, Inc. 

(“Appellee”) manufactured chromium, a heavy metal, at a plant in 

 1 Because we are ruling on a motion to dismiss, we assume as 

true the facts as stated in the complaint. See A Soc’y Without

A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011).
4

an area now known as Harbor Point in Baltimore, Maryland.2 This 

operation produced as much as 100,000 tons of waste per year, 

including chromium ore processing residues (“COPR”). COPR 

contains hexavalent chromium, which the Environmental Protection 

Agency classifies as a powerful carcinogen. Hexavalent chromium 

is water soluble and thus may spread through surface water, 

groundwater, and drinking water, and exposure may also occur 

through dust and dirt. The complaint states Appellee knew of 

the dangers associated with COPR as early as the 1930s. 

 Beginning in the 1940s, Appellee stockpiled COPR 

waste for extended periods at and around docks, piers, wharves, 

and other work areas at Harbor Point. During the same period, 

Appellee owned 85 acres of land adjacent to the Dundalk Marine 

Terminal. The following decade, Appellee began using COPR waste 

and other material as fill to expand this area. 

In 1967, the Maryland Port Authority bought Appellee’s 

85-acre property and used it to expand the Marine Terminal.3 The 

 2 According to the complaint, Appellee bears successor 

liability for predecessor corporations that maintained chromium 

processing and production operations at Harbor Point, including 

Mutual Chemical Company, Allied Chemical & Dye Corporation, 

Allied Chemical Corporation, and Allied Signal, Inc., the last 

of which merged with Appellee in 1999.

3 Appellee provided its agreement with the Port Authority as 

an attachment to its briefing in support of dismissal. See J.A. 

220–26. Citations to the “J.A.” refer to the Joint Appendix 

filed by the parties in this appeal.
5

contract between Appellee and the Port Authority required 

Appellee to deposit in the Marine Terminal any COPR fill 

Appellee produced at its Baltimore plant, aside from quantities 

Appellee required for its own use, or pay the Port Authority for 

failing to do so. The Port Authority continued to utilize COPR 

fill for the Marine Terminal expansion until 1976. 

B.

The survivors of John R. Leichling (“Appellants”) 

brought various tort claims against Appellee in the Circuit 

Court for Baltimore City, Maryland, asserting Mr. Leichling’s 

2012 death from lung cancer resulted from COPR exposure during 

his employment as a longshoreman from 1973 through 2001 at the 

Dundalk Marine Terminal. 

Appellee removed the case to the United States 

District Court for the District of Maryland and moved to 

dismiss, arguing Maryland’s statute of repose bars Appellants’ 

claims and, alternatively, Appellants fail to state plausible 

claims for relief. While the motion was pending, Appellants 

filed a Second Amended Complaint, to which Appellee responded 

via reply brief rather than a second motion to dismiss. The 

district court agreed with Appellee, holding Maryland’s statute 

of repose bars Appellants’ claims. The district court thus 

dismissed the claims with prejudice and this appeal followed. 
6

II.

Dismissal under Federal Rule of Civil Procedure 

12(b)(6) is subject to de novo review. See King v. Rubenstein, 

825 F.3d 206, 214 (4th Cir. 2016). An affirmative defense 

permits 12(b)(6) dismissal if the face of the complaint includes 

all necessary facts for the defense to prevail. See Goodman v. 

Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). A court 

passing on a motion to dismiss may consider attachments to a 

complaint or the motion to dismiss if “integral to the complaint 

and authentic.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 

180 (4th Cir. 2009). Because this is a diversity case, Maryland 

law applies. See 28 U.S.C. § 1652; Erie R.R. Co. v. Tompkins, 

304 U.S. 64, 78 (1938).

III.

In the 1960s and 1970s, the demise of privity of 

contract as a defense and the introduction of the discovery rule 

increased liability for defective or unsafe conditions in 

improvements to real property. See Rose v. Fox Pool Corp., 643 

A.2d 906, 912–13 (Md. 1994). In response, states enacted 

statutes protecting those who would be particularly susceptible 

to claims arising from such improvements; Maryland’s statute of 

repose is one such statute. See id. The statute provides, with 

limited exceptions,
7

no cause of action for damages accrues and a person 

may not seek contribution or indemnity for damages 

incurred when wrongful death, personal injury, or 

injury to real or personal property resulting from the 

defective and unsafe condition of an improvement to 

real property occurs more than 20 years after the date 

the entire improvement first becomes available for its 

intended use. 

Md. Code Ann., Cts. & Jud. Proc. § 5-108(a). After courts 

applied the statute to bar claims against asbestos 

manufacturers, the Maryland General Assembly adopted an 

amendment to exclude asbestos from the protection of the statute 

of repose. This exception was adopted only after “considerable 

debate within the legislature.” Rose, 643 A.2d at 914 

(discussing § 5-108(d)(1)). 

Otherwise, the statute bars suits in which (1) a 

plaintiff’s alleged injuries resulted from an “alleged defective 

and unsafe condition of ‘an improvement to real property’”; and 

(2) 20 years have elapsed “since the ‘entire improvement first 

be[came] available for its intended use.’” Rose, 643 A.2d at 

910 (alteration in original) (quoting § 5-108(a)). Here, 

Appellants only challenge the district court’s analysis of the 

first prong. 

To determine whether an item is an “improvement,” 

courts apply a “common sense” test, which defines an improvement 

as 

[a] valuable addition made to property (usually real 

estate) or an amelioration in its condition, amounting 
8

to more than mere repairs or replacement, costing 

labor or capital, and intended to enhance its value, 

beauty or utility or to adapt it for new or further 

purposes. Generally has reference to buildings, but 

may also include any permanent structure or other 

development, such as a street, sidewalks, sewers, 

utilities, etc. An expenditure to extend the useful 

life of an asset or to improve its performance over 

that of the original asset. Such expenditures are 

capitalized as part of the asset’s cost.

Rose, 643 A.2d at 918 (alteration in original) (quoting Black’s 

Law Dictionary 757 (6th ed. 1990)). In making this 

determination, courts consider “the nature of the addition or 

betterment, its permanence and relationship to the land and its 

occupants, and its effect on the value and use of the property.” 

Id. (citing Allentown Plaza v. Suburban Propane, 405 A.2d 326, 

332 (Md. 1979)). 

Courts should not “artificially extract each component 

from an improvement to real property and view it in isolation.” 

Hickman, ex rel. Hickman v. Carven, 784 A.2d 31, 38 (Md. 2001) 

(quoting Hilliard v. Lummus Co., 834 F.2d 1352, 1356 (7th Cir. 

1987)). Instead, an item may be “an improvement if it is an 

integral component of a project that itself would qualify as an 

improvement.” Id.4 For example, in Hickman, ex rel. Hickman v. 

 4 Although the Hickman court merely assumed that the 

integral component doctrine applied for purposes of resolving 

that case, the doctrine has been widely accepted in other 

jurisdictions. See, e.g., Associated Elec. & Gas Ins. Servs. v. 

BendTec, Inc., 822 F.3d 420, 424 (8th Cir. 2016); Ambrosia Land 

Invs., LLC v. Peabody Coal Co., 521 F.3d 778, 781–83 (7th Cir. 

(Continued)
9

Carven, the Maryland Court of Appeals held that the statute of 

repose did not bar claims of residential subdivision lot owners 

against subdivision developers for demolishing a burial site. 

See id. at 38–39. The court reasoned that, though the 

developers may have removed the burial site while developing the 

land, doing so was not only unnecessary for development but also 

illegal and thus not an integral component of development. See

id. Conversely, Rose applied the statute to bar a swimmer’s 

claims for injuries against a pool manufacturer because the pool 

was “a permanent addition, excavated and built into the real 

property, which enhances the value of the entire premises.” 643 

A.2d at 918.5 

 

2008); Durham v. Herbert Olbrich GMBH & Co., 404 F.3d 1249, 

1255–57 (10th Cir. 2005); Adair v. Koppers Co., Inc., 741 F.2d 

111, 114–16 (6th Cir. 1984). We thus have little reason to 

doubt that it would find favor with Maryland courts.

5 This is not our first occasion to interpret Maryland’s 

statute of repose. In Pippin v. Reilly Industries, Inc., for 

example, we applied the statute to bar wrongful death claims 

against a utility pole designer stemming from the decedent’s 

collision with a utility pole. See 64 F. App’x 382, 386 (4th 

Cir. 2003) (per curiam). We reasoned, because the wires and 

transformers had to sit in a safe position, “the pole was 

integral to provision of electricity.” Id. We also noted that 

although the company could have used other means to achieve this 

end, the pole was nonetheless an “ordinary and reasonable means” 

of doing so. Id.; see also Lewis v. Weldotron Corp., 5 F. App’x 

265, 268–69 (4th Cir. 2001) (barring claims stemming from shrink 

wrap system in brick manufacturing plant that required labor and 

capital for installation, enhanced value and utility of 

(Continued)
10

Here, like the district court, we are satisfied that 

Appellee’s use of COPR to expand and develop the Dundalk Marine 

Terminal is -- if not an improvement to real property standing 

alone -- at least an integral component of the project. See

Hickman, 784 A.2d at 38.

Appellants argue against this conclusion, stating, 

“Honeywell’s toxic dumping made the area unsuitable for human 

use and development because it posed a tremendous and known 

threat to human health and the environment.” Appellants’ Br. 13 

(emphasis in original). But neither the statute’s text nor its 

legislative history support this theory as grounds for rendering 

the statute inapplicable. The language of the statute does not 

except hazardous conditions, much less known hazardous 

conditions. Indeed, such an exception would swallow the rule, 

which only applies to an “alleged defective or unsafe 

condition.” § 5-108(a). Moreover, in enacting the exception 

for asbestos manufacturers, the Maryland legislature was quite 

clear that the exception was limited to asbestos. See Rose, 643 

A.2d at 917 (“The General Assembly expressly identified certain 

defendants to which subsection (a) does not apply.”). We are 

 

property, and was affixed to property with gas lines and bolts 

in concrete floor). 
11

not positioned to create an additional exception for chromium 

manufacturers. 

Appellants further argue the use of COPR has decreased 

the value of the land in comparison to its hypothetical value 

with less hazardous fill. See Appellants’ Br. 17. The “common 

sense” test Maryland courts derive from the statute, however, 

belies this assertion. Rose, 643 A.2d at 918. Appellants’ 

allegations establish that Appellee utilized COPR fill to create 

a vast 85-acre parcel and transferred the parcel to the Maryland 

Port Authority, which used -- and continues to use -- the parcel 

as an active marine terminal. This expansion thus bestowed 

greater utility to both Appellee and the Maryland Port 

Authority, see id., regardless of the wisdom of using hazardous 

materials to exact the expansion. 

Indeed, viewing the expansion as a whole rather than 

the COPR fill “in isolation,” the record establishes that the 

fill was, in fact, an “integral component” to developing the 

parcel for its use as the Marine Terminal. Hickman, 784 A.2d at 

38. Appellants’ reliance on Hickman is unavailing; there, the 

defendant’s burial site removal was not only “unlawful and 

prohibited” but also “not necessary” to develop the land. Id.

at 38–39. Here, however, Appellee could not have developed the 

parcel into the Marine Terminal without a surface on which to 

build. The crucial difference between these cases thus lies in 
12

the purpose of the alleged improvement, not its alleged legal 

status. To hold otherwise would render the statute inapplicable 

merely if a plaintiff could concoct an allegation of illegality, 

as Appellants have done here. See, e.g., Appellants’ Reply Br. 

7–9. 

The agreement between Appellee and the Port Authority 

shows the crucial roles -- both functional and financial -- the 

COPR fill played in expanding the Marine Terminal. Indeed, the 

agreement deemed the 85-acre parcel “required” for the “purpose 

of expanding the Dundalk Marine Terminal.” J.A. 221. Moreover, 

the agreement entitled the Port Authority to payment if Appellee 

failed to deposit COPR fill at the Marine Terminal, see id. at 

223, indicating the financial significance of the fill to the 

Port Authority. 

Appellee’s use of COPR fill in creating the landmass 

that later became the base for a large portion of the Dundalk 

Marine Terminal is thus an improvement to that property pursuant 

to Maryland’s statute of repose. Because Appellants concede 

that they brought their claims outside of the statute’s 20-year 

time bar, the district court did not err in dismissing these 

claims. 
13

IV.

For the foregoing reasons, we affirm the district 

court’s dismissal. 

AFFIRMED