Zeferino VASQUEZ, Plaintiff-Respondent, v. DOUBLE PRESS MFG., INC., a California corporation, Defendant-Appellant.
Multnomah County Circuit Court 110302844; A154774
Multnomah County Circuit Court
November 1, 2017
petition for review allowed March 22, 2018 (362 Or 665)
288 Or App 503 | 406 P3d 225
David F. Rees, Judge.
On appellant’s petition for reconsideration filed May 13, respondent’s response to petition for reconsideration filed May 27, and appellant’s reply in support of its petition for reconsideration filed June 3, 2016; reconsideration allowed, former opinion (278 Or App 77, 372 P3d 605) withdrawn, affirmed November 1, 2017; petition for review allowed March 22, 2018 (362 Or 665) See later issue Oregon Reports
Reconsideration allowed; former opinion withdrawn; affirmed.
Jonathan Henderson argued the cause for appellant. With him on the briefs were Elizabeth E. Lampson and Davis Rothwell Earle & Xochihua, P.C. With him on the supplemental brief was Davis Rothwell Earle & Xochihua, P.C.
James S. Coon and Thomas, Coon, Newton & Frost filed the brief amicus curiae for Oregon Trial Lawyers’ Association.
Nathan R. Morales, Sharon A. Rudnick, and Harrang Long Gary Rudnick P.C. filed the brief amicus curiae for Associated Oregon Industries and the Oregon Liability Reform Coalition.
Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.
ARMSTRONG, P. J.
Egan, J., concurring.
Reconsideration allowed; former opinion withdrawn; affirmed.
Defendant seeks reconsideration of our decision in Vasquez v. Double Press Mfg., Inc., 278 Or App 77, 372 P3d 605 (2016). In that decision, we concluded that the application in this case of the cap on noneconomic damages in
We also conclude that it is appropriate to exercise our discretion to address the two “right for the wrong reason” arguments raised by plaintiff in response to defendant’s request for reconsideration. As to those arguments, we conclude that plaintiff’s claims against defendant are not “subject to”
We take the facts from our prior opinion, which we recited consistently with the jury’s verdict in favor of plaintiff:
“Defendant manufactures and sells agricultural machinery. OR PAC Feed & Forage LTD, the employer of plaintiff, purchased a bale-cutting machine from defendant, and defendant installed the machine. Plaintiff’s job duties included operating and cleaning hay out of and around the bale-cutting machine. Plaintiff operated the machine from a control panel located at the control tower. Before plaintiff cleaned hay out of or around the machine, he pushed a button on the control panel to switch the machine from automatic to manual mode. In addition to switching the machine to manual mode, there was a ‘lockout/tagout’ safety procedure. Under that procedure, an operator shuts off the power source supply with a lock and key and takes the key so that only one person has access to the power supply while working on the machine.
“On March 31, 2010, plaintiff left the control tower to ask his cousin whether his shift was over. Plaintiff did not turn off and lock out the machine, nor did he switch the machine from automatic mode to manual mode. When plaintiff’s cousin confirmed that his shift was over, plaintiff began to clean the machine. While cleaning the machine—removing jammed material from the exterior—plaintiff was ‘crushed by a “pinch point” created by a hydraulic ram moving against the exterior framework’ of the machine. A ‘pinch point’ is a place on the machine ‘where two pieces of material come together.’
“Plaintiff was severely injured. Plaintiff’s neurosurgeon testified that plaintiff was ‘essentially cut in half, right through the base of the spine’ and that the machine ‘broke his bones and crushed his spine and tore soft tissue.’ As a result of the injury plaintiff is permanently paraplegic.
“Plaintiff filed an action against defendant, alleging claims for negligence and products liability, and subsequently amended his complaint to proceed on his negligence claim alone. Before trial, defendant moved for partial summary judgment to limit plaintiff’s noneconomic damages to $500,000 under
ORS 31.710(1) . Relying on Lakin, the trial court denied defendant’s motion for summary judgment, explaining, ‘For now I’m going to consider Lakin to be binding on’ the issue of noneconomic damages.“At trial, plaintiff testified that he was partially at fault for his injuries. Based on that admission, defendant moved
for a directed verdict to cap plaintiff’s noneconomic damages. The trial court denied that motion, again relying on Lakin[.] “* * * * *
“The jury returned a verdict in plaintiff’s favor for $2,231,817 in economic damages and $8,100,000 in noneconomic damages, but found plaintiff 40 percent at fault for his injuries. Defendant moved to reduce the jury’s award of noneconomic damages to $500,000 based on
ORS 31.710(1) , arguing that Lakin did not control. The trial court denied defendant’s motion. The trial court then entered a judgment for plaintiff in the amount of $6,199,090.20, representing 60 percent of the total award from the jury—$4,860,000 of which are noneconomic damages.“Following the entry of judgment, defendant moved for judgment notwithstanding the verdict and a new trial, again arguing that
ORS 31.710(1) applied. The trial court denied those motions without explanation.”
Vasquez, 278 Or App at 79-81 (footnote omitted). On appeal, defendant challenged the trial court’s denial of its post-verdict motion to apply the noneconomic damages cap in
In our former opinion, we explained that Lakin, and its progeny, controlled our decision. In Lakin, which involved a negligence and products-liability case against a nail-gun manufacturer, the Supreme Court concluded that former
“Under Lakin,
Article I, section 17 , guarantees a jury trial in civil cases for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and cases of like nature. The determination of damages in a personal injury case is a question of fact. Thus, in this
context, applying ORS 31.710(1) would violateArticle I, section 17 .”
The day after we issued our decision in Vasquez, the Supreme Court issued its decision in Horton, which expressly overruled Lakin. See Horton, 359 Or at 250. With respect to
“The text of
Article I, section 17 , its history, and our cases that preceded Lakin establish thatArticle I, section 17 , guarantees litigants a procedural right to have a jury rather than a judge decide those common-law claims and defenses that customarily were tried to a jury when Oregon adopted its constitution in 1857, as well as those claims and defenses that are ‘of like nature.’ However, that history does not demonstrate thatArticle I, section 17 , imposes a substantive limit on the legislature’s authority to define the elements of a claim or the extent of damages available for a claim.”
In light of the Supreme Court’s conclusion and overruling of Lakin, we allow reconsideration in this case and withdraw our former opinion. However, that does not end our inquiry. Because Horton announced a significant change in the law—not only in the application of
On reconsideration, plaintiff raises two new arguments as a basis to affirm the trial court under the “right for the wrong reason” principle: (1) plaintiff’s claims against defendant are excepted from
In contending that plaintiff was required to raise his arguments in his answering brief for the arguments to be considered by us, defendant points to cases in which we and the Supreme Court have said that we will not consider arguments raised for the first time on reconsideration. See, e.g., State v. Leistiko, 352 Or 622, 624, 292 P3d 522 (2012) (declining to address argument raised for first time in defendant’s petition for reconsideration); Kentner v. Gulf Ins. Co., 298 Or 69, 74, 689 P2d 955 (1984) (noting that “purpose of rehearing is not to raise new questions or rehash old arguments, but to allow the court to correct mistakes and consider misapprehensions”); Rogers v. RGIS, LLP, 232 Or App 433, 435, 222 P3d 710 (2009), rev den, 348 Or 291 (2010) (declining to consider argument for modifying opinion that was raised by amicus curiae for first time in support of reconsideration petition); State v. Schneider, 204 Or App 710, 713, 131 P3d 842, rev den, 341 Or 392 (2006) (rejecting defendant’s new argument on reconsideration attempting to disavow concession made on appeal in light of new case law); Coast Range Conifers v. Board of Forestry, 192 Or App 126, 130, 83 P3d 966 (2004), rev’d, 339 Or 136, 117 P3d 990 (2005) (stating that the state may not assert an unpreserved argument on appeal “much less for the first time in a petition for reconsideration”); Kinross Copper Corp. v. State of Oregon, 163 Or App 357, 360, 988 P2d 400 (1999), rev den, 330 Or 71 (2000) (noting that it is not appropriate for a party to assert a contention in a petition for reconsideration that was not raised in its brief on appeal).
Properly understood, those cases establish that we will not consider arguments raised for the first time in support of a petition for reconsideration as a basis on which to allow reconsideration and modify our prior opinion and disposition. The reasons for that general rule are to “prevent a party from appealing in a piecemeal manner,” to “keep[] a party from shifting its position,” and to “promote the finality of appellate courts’ decisions and to conserve judicial time.” Kentner, 298 Or at 74. Those reasons are not implicated when, as here, a party raises a “right for the wrong reason” argument for the first time in opposition to a petition
We are not aware of any instance, and defendant has pointed to none, in which we have stated that we will not consider a new argument raised on reconsideration even though the reasons for the general rule against consideration of such arguments are not implicated. Indeed, both we and the Supreme Court have exercised our discretion to address arguments raised for the first time on reconsideration when it was appropriate to do so under the circumstances. See Kentner, 298 Or at 75 (modifying opinion on reconsideration based on a new argument because adhering to prior disposition “would defeat one of the basic purposes of the general rule that a contention not raised on the original hearing will not be considered on a rehearing—judicial economy”); Bergman v. Holden, 122 Or App 257, 260, 857 P2d 217, rev den, 318 Or 170 (1993) (considering arguments raised for the first time in a petition for reconsideration “because the evidence now cited indicates that at least one of our statements concerning the factual record was incorrect”).
We conclude that this is a unique case in which we should exercise our discretion to consider “right for the wrong reason” arguments raised for the first time on reconsideration. Here, the reasons for the general rule against considering arguments raised for the first time on reconsideration are not implicated—viz., plaintiff is not seeking a piecemeal appeal, has not shifted positions on reconsideration, and has raised arguments that are consistent with judicial efficiency. Also, plaintiff had no incentive to advance
As explained in Outdoor Media, we will affirm a trial court under the “right for the wrong reason” principle—as a matter of discretion—under certain conditions:
“The first condition is that, if the question presented is not purely one of law, then the evidentiary record must be sufficient to support the proffered alternative basis for affirmance. That requires: (1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. *** The second condition is that the decision of the lower court must be correct for a reason other than that upon which the lower court relied. Third, and finally, the reasons for the lower court’s decision must be either (a) erroneous or (b) in the reviewing court’s estimation, unnecessary in light of the alternative basis for affirmance.”
Outdoor Media, 331 Or at 659-60.
With respect to plaintiff’s argument that his claims are excepted from
We disagree with defendant’s assessment of the factual record. Plaintiff has raised an issue of statutory construction—whether the legislature intended the exception in
To address plaintiff’s argument, we must construe the exception language in
“Except for claims subject to
ORS 30.260 to30.300 andORS chapter 656 , in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.”
(Emphasis added.)
Plaintiff contends that his third-party claim against defendant is “subject to”
In addition, plaintiff points out that workers’ compensation claims are not “civil actions”—viz., they arise in an administrative proceeding—and do not include compensation for noneconomic damages; thus, plaintiff argues, application of
We do recognize that there is a single statute in
Second, we reject plaintiff’s argument that the legislature must have meant the exception to apply to third-party claims because workers’ compensations claims would not be subject to
We next address plaintiff’s “right for the wrong reason” argument based on
With respect to
Our discussion of
“In determining the limits that the remedy clause places on the legislature, our cases have considered three general categories of legislation. First, when the legislature has not altered a duty but has denied a person injured as a result of a breach of that duty any remedy, our cases have held that the complete denial of a remedy violates the remedy clause. See Noonan[ v. City of Portland], 161 Or [213, 222-35, 88 P2d 808 (1939)] (summarizing Mattson and cases following it). Similarly, our cases have held that providing an insubstantial remedy for a breach of a recognized duty also violates the remedy clause. Compare Clarke[ v. OHSU], 343 Or 581, 608, 610, 175 P3d 418 (2007)] ($200,000 capped damages not substantial in light of $12,000,000 in economic damages and $17,000,000 in total damages), with Howell[ v. Boyle], 353 Or 359, 376, 298 P3d 1 (2013)] ($200,000 capped damages substantial in light of $507,500 in total damages).
“Second, the court has recognized that the reasons for the legislature’s actions can matter. For example, when the legislature has sought to adjust a person’s rights and remedies as part of a larger statutory scheme that extends benefits to some while limiting benefits to others, we have considered that quid pro quo in determining whether the reduced benefit that the legislature has provided an individual plaintiff is ‘substantial’ in light of the overall statutory scheme. Hale[ v. Port of Portland], 308 Or [508, 523, 783 P2d 506 (1989)].
“Third, the legislature has modified common-law duties and, on occasion, has eliminated common-law causes of action when the premises underlying those duties and causes of action have changed. In those instances, what has mattered in determining the constitutionality of the
legislature’s action is the reason for the legislative change measured against the extent to which the legislature has departed from the common law. See Perozzi[ v. Ganiere], 149 Or [330, 348, 40 P2d 1009 (1935)]. That is, we have considered, among other things, whether the common-law cause of action that was modified continues to protect core interests against injury to persons, property, or reputation or whether, in light of changed conditions, the legislature permissibly could conclude that those interests no longer require the protection formerly afforded them. See Norwest [v. Presbyterian Intercommunity Hosp.], 293 Or [543, 563, 652 P2d 318 (1982)] (discussing legislative abolition of common-law torts of criminal conversation and alienation of affections).”
Horton, 359 Or at 219-20. The court declined to discern a unifying principle to apply to challenges under the remedy clause but reiterated that “[i]t follows from our cases that, in deciding whether the legislature’s actions impair a person’s right to a remedy under
Finally, although the court called into question the continued viability of post-Smothers cases, it agreed with Clarke and Howell that “the substantiality of the legislative remedy can matter in determining whether the remedy is consistent with the remedy clause.” Id. The court continued:
“When the legislature does not limit the duty that a defendant owes a plaintiff but does limit the size or nature of the remedy, the legislative remedy need not restore all the damages that the plaintiff sustained to pass constitutional muster, see Howell, 353 Or at 376, but a remedy that is only a paltry fraction of the damages that the plaintiff sustained will unlikely be sufficient, see Clarke, 343 Or at 610. It is worth noting, however, that both Clarke and Howell evaluated the plaintiffs’
Article I, section 10 , claims in those cases through the lens that Smothers provided. As explained above, and as this court recognized in Hale, other factors, such as the existence of a quid pro quo, can bear on the determination.”
“[g]iven the legislature’s efforts to accommodate the state’s constitutionally recognized interest in sovereign immunity and a plaintiff’s constitutional right to a remedy, we cannot say that the $3,000,000 tort claims limit on damages against state employees is insubstantial in light of the overall statutory scheme, which extends an assurance of benefits to some while limiting benefits to others.”
Id. at 224. The court emphasized that its holding was limited to that case and stated that “[w]e express no opinion on whether other types of damages caps, which do not implicate the state’s constitutionally recognized interest in sovereign immunity and which are not part of a similar quid pro quo, comply with
We begin our discussion with the legislature’s reasons for enacting the statute at issue,
As we have previously recognized, the legislature’s purpose in enacting the cap on noneconomic damages was “to stabilize insurance premiums and to decrease costs associated with tort litigation.” Tenold v. Weyerhaeuser Co., 127 Or App 511, 519, 873 P2d 413 (1994) (citing Minutes, House Judiciary Subcommittee, Apr 29, 1987, at 11, 15). The Supreme Court has quoted as apt the following summary of the legislative history of the noneconomic damages cap in
“‘In enacting the cap, the Oregon Legislature sought to control the escalating costs of the tort compensation system. The legislature determined that the cap would put a lid on litigation costs, which in turn would help control rising insurance premium costs for Oregonians. The legislature listened to hours of testimony on the insurance and tort crisis, and how reform was needed in order to salvage the system.’”
Greist v. Phillips, 322 Or 281, 299 n 10, 906 P2d 789 (1995) (quoting Kathy T. Graham, 1987 Oregon Tort Reform Legislation: True Reform or Mere Restatement?, 24 Willamette L Rev 283, 292 (1988) (footnote omitted in Greist)).
With that understanding of the legislature’s purpose in enacting
We agree with plaintiff that
“It is clear from the language of
ORS 30.265(1) itself that the legislature intended to meet fully the requirements ofArticle I, section 10 , when it enacted the statute. The statute specifically identifies the new balance it strikes between municipal corporations and those to whom certain of those corporations could, under limited circumstances, formerly have been liable[.]“* * * * *
“The class of plaintiffs has been widened by the legislature by removing the requirement that an injured party show that the municipal corporation’s activity that led to the injury was a proprietary one. At the same time, however, a limit has been placed on the size of the award that may be recovered. A benefit has been conferred, but a counterbalancing burden has been imposed. This may work to the disadvantage of some, while it will work to the advantage of others. But all who had a remedy continue to have one.”
Hale, 308 Or at 523. The court in Horton also discussed the quid pro quo involved in that case in similar terms:
“The Tort Claims Act avoids that dilemma [caused by state employees being liable for actions that they take on
behalf of the state] by waiving the state’s immunity for its torts but capping the amount for which the state can be held liable—in this case, $3,000,000.
ORS 30.265(1) (waiving immunity from tort actions subject to certain limitations);ORS 30.271(3) (listing graduated limits on state liability). The Tort Claims Act indemnifies state employees for liability in tort for acts occurring in the performance of their public duty but caps the amount of their liability at the amount for which the state has waived its sovereign immunity.ORS 30.285(1) , (6). In so doing, the Tort Claims Act accommodates the state’s constitutionally recognized interest in asserting its sovereign immunity with the need to indemnify its employees for liability that they incur in carrying out state functions.“Moreover, the Tort Claims Act gives plaintiffs something that they would not have had if the state had not partially waived its immunity. The act ensures that a solvent defendant will be available to pay any damages up to $3,000,000—an assurance that would not be present if the only person left to pay an injured person’s damages were an uninsured, judgment-proof state employee. * * * There is, in short, a quid pro quo.”
Under those cases, a statute, such as
In his second argument, plaintiff makes an as-applied challenge, arguing that the cap on noneconomic damages in his case leaves him with an unconstitutionally insubstantial remedy. Plaintiff argues that reducing his noneconomic damage award to $500,000, which is only about 10 percent of the noneconomic damage award that he would otherwise receive, leaves him with a “paltry fraction” of his damages, which the court in Horton recognized does not pass constitutional muster in the absence of a countervailing quid pro quo in the statutory scheme. See Horton, 359 Or at 220-21.
Defendant responds that Greist is controlling precedent in its favor because, in that case, the Supreme Court concluded that all of the plaintiff’s economic damages plus $500,000 in noneconomic damages was substantial under
Because defendant argues that it is controlling, we first address Greist. Greist was a wrongful-death case in which the plaintiff obtained a jury award for $100,000 in economic damages and $1.5 million in noneconomic damages. The trial court applied former
Likewise, Horton, Howell, and Hale—all cases applying damages caps in the Oregon Tort Claims Act—are distinguishable because those cases explicitly took into consideration in their substantiality discussions the quid pro quo and constitutional implications of the waiver of sovereign immunity that is a part of the Oregon Tort Claims Act. See Horton, 359 Or at 224 n 28 (considering the quid pro quo the Oregon Tort Claims Act provides, including its “accommodation of the state’s interest in sovereign immunity,” in determining whether the damages allowed were substantial); Howell, 353 Or at 376 (considering a similar quid pro quo as discussed in Hale to determine an Oregon Tort Claims Act damages cap was a substantial remedy); Hale, 308 Or at 523-24 (relying on the quid pro quo in the Oregon Tort Claims Act to conclude that the damages cap was a substantial remedy). The additional considerations present in Greist and the Oregon Tort Claims Act cases are not present here. Thus, those cases do not control our decision.
We thus turn to whether the statutorily substituted remedy under
Here, under the common-law model, plaintiff would have been entitled to recover his noneconomic damages,
Here, plaintiff was grievously injured. While cleaning the bale-cutting machine manufactured by defendant, plaintiff “was ‘crushed by a “pinch point” created by a hydraulic ram moving against the exterior framework’ of the machine.” Vasquez, 278 Or App at 80. The effect of being crushed by that “pinch point” was to essentially cut plaintiff in half at the base of his spine, leaving him permanently paraplegic. For those injuries, the jury awarded plaintiff $2,231,817 in economic damages and $8,100,000 in noneconomic damages but found plaintiff 40 percent at fault for his injuries. As a result, plaintiff’s award was reduced to 60 percent, for a total of $6,199,090—viz., $1,339,090 in economic and $4,860,000 in noneconomic damages. Thus, if the cap is applied, plaintiff would receive only $1,839,090 out of the $6,199,090 that he would receive without the cap.
In this case, we conclude that
Reconsideration allowed; former opinion withdrawn; affirmed.
EGAN, J., concurring.
I agree with the majority’s analysis and result under
The majority mistakenly opines that the procedural rules at
Notes
“Except for claims subject to
“If the injury to a worker is due to the negligence or wrong of a third person not in the same employ, the injured worker, or if death results from the injury, the spouse, children or other dependents, as the case may be, may elect to seek a remedy against such third person.”