*1 4, 1980, 19, in banc March Argued resubmitted December and submitted May denied March reconsideration affirmed 2, 1981 petition June allowed for review WHIPPLE, Plaintiff, v. et al
HOWSER Defendants. et al
HOWSER Appellants, BEHRENDT, Respondent. 18103)
(No. 80-0708-J-3, CA
respondent. Death- With him on the brief was erage, Eads, & Medford. deSchweinitz Oregon Clayton Patrick, Trial C. J. Rudnick
Linda Lawyers amicus curiae. Association, Salem, filed brief
THORNTON, J. dissenting opinion.
RICHARDSON, J., *2 THORNTON, J. the effect to determine
This us requires appeal of ORS amendment Oregon Legislature’s the 1979 given be actions statute, removing 30.115,1 guest passenger re- the statute’s motor vehicle accidents based upon The issue is whether covery limitations.2 action commenced the amendment apply intended date, 3, 1979, effective the amendment’s after October occurred action is based accident which the upon when the depends upon this issue date. Resolution of prior of the amendment’s interpretation intended clause,” "savings which reads: an action or other 8. This Act does not
"Section of this the effective date proceeding commenced before Act.” follows: On question in this case arises as 21, 1978, in a vehicle passenger was a plaintiff
October in a was involved by Monique driven Behrendt which one defendant collision with a vehicle ownеd filed 27,1980, February plaintiff other. On operated by *3 case, upon plaintiff her in this At time of the accident which based action provided, pertinent part: in ORS 30.115 vehicle, by operator person transported of an or a motor "No owner watercraft, aircraft, guest conveyance, as or of his without a other means damages transportation, for
payment against a of action for such shall have cause accident, loss, operator injury, of death in case the owner or for or operator part or or unless was intentional on the of owner the accident * * "*****". gross negligence by his or caused intoxication. 2 866, 7, presently provides: by § As Laws ch ORS 30.115 amended Or a person transported by operator of aircraft or or "No owner transportation, a guest payment shall have his for such watercraft as without injury, damages against operator death or the owner or for cause of action for loss, accident, part was intentional on of case of unless the accident in gross negligence operator intoxication. As used or caused his or owner or this section: "(1) 'Payment’ or in a material business means a substantial benefit conveyance operator a upon and which is or sense conferred owner a motivating transportation, it does not include for the substantial factor amenity. gratuity mere of social "(2) materially greater negligence’ negligence refers to 'Gross circumstances, and which under the than the mere absence of reasonable care rights disregard of consciousindifference to or reckless characterized of others. an action seeking damages from defendants for personal she injuries suffered their On allegedly negligence. due to 7, 1980, defendants April filed an answer to plaintiff’s and, 22C,3 complaint a pursuant party ORCP third against action Monique Behrendt. As third party plaintiffs, they alleged that third Behrendt’s party negli- defendant gence proximately contributed to and caused plaintiffs injuries. further if a They alleged judgment that was them, returned against they were entitled to contribution4 third defendant. party 21A,5 Pursuant to ORCP third defendant party moved dismiss that complаint. argued she Specifically, at accident, the time of the any ORS 30.115 barred and, recovery by therefore, third plaintiff party plaintiffs, allegation absent either an of party the third complaint gross her or that negligence was a plaintiff "paying” pas senger in at her vehicle the time the accident. Since the of third party plaintiffs’ contained neither complaint allega tion, third defendant it party argued that failed to stаte a of cause action.
The trial court agreed.
on Smith v. Clack-
Relying
(1968),
amas
Or
County, 252
A generally fundamental recognized principle is jurisprudence that of new laws is disfavored. The principle is based upon premise such аpplication involves a risk of un- high potential fairness.
"* ** Perhaps why the most fundamental reason re- legislation troactive is suspect principle stems from the that a person should be able to plan his conduct with reasonable certainty consequences. Thus legal of the Federalist stressed desirability protecting the people 'fluctuating from the policy’ legislature. Closely allied to this factor is stability man’s desire for with respect past Moreover, transactions. extent that statutory law should guide serve as a to individual con- duct, purpose is thwarted retroactive enactments. Still another underlying hostility reason to retroactive legislation is that may such a statute passed be with an knowledge exact of who will Finally, benefit from it. there strong is the although common-law tradition that a court’s pronouncements conduct, may apрly to past (Footnotes function to declare law for the future.” omitt- ed.) Hochman, The Supreme Court and the Constitutional- ity Legislation, Retroactive 692, L 73 Harv Rev 692-93 (1960). construction, general
As a
rule of
there-
statutory
fore, a legislative
enactment
presumed
prospectively
will be construed as
retroactive-
applying
ly only where the enactment clearly, by express language
or necessary implication,
indicates
such a
Sutherland, Statutory
intended
result. 2
Construc-
(4th
1973).
§
tion
41.04 at 252
ed
The courts of this state
have
adhered to this
See Judkins
v.
long
general
rule.
Taffe,
(1891);
Bump,
Or
90 the the 1979 amend- agree judge
We with trial third action. party to 30.115 did not to the apply ment ORS rule This the familiar and well- settled governed by case is to applied referred above statutory construction namely, v. that where an County, supra, Smith Clackamas rights, a the changes amendment to stаtute substantive where its retroactively should not be applied amendment application. not such language require does to determine Smith, In the court was asked statute, recovery the basis of changing whether a to on was be liability negligence, to based liability strict to a claim an accident which retroactively based on applied statute, the the date of but had occurred to effective prior said: lеgislature filed to that date. The had not prior action, proceeding any suit or "This Act shall not affect pending on effective date of prior to and commenced 1965, 300, § this 3. Act.” Or Laws ch lan- bar, legislature following used the In the case at guage: action, suit or other apply does not to
"This Act
this
the effective date of
proceeding commenced before
1979,
866, §
ch
8.
Act.”
Laws
Or
the holding in
distinguish
The dissent
tries
to
view,
In
at
cannot.
оur
Smith from the case
bar. We
Accord: Wiebe v.
holding
controlling
in Smith is
here.
(1959);
Administrator,
215
P2d 379
Or
335
Seely,
(1972). See also
Or
Affirmed.
RICHARDSON, J., dissenting. the issue opinion, in the majority
As noted amend- intended legislature is whether case commenced after to an action apply ment to ORS 30.115 date, upon when the accident effective the enactment’s to that date. based occurred prior the actiоn is which 230, 448 252 Or County, Smith v. Clackamas Relying on the amend- (1968), concludes majority P2d 512 major- case. The present to the ment should be County, Clackamas is in Not does Smith v. error. ity supra, proper interpreta- here, not control the issue but a tion of the action leads conclusion that intended the amendment party Accordingly, third action. I dissent. majority general states: "As a rule of statuto- * * *
ry legislative presumed construction, enactment is apply only prospectively applying and will be construed as retroactively only clearly, by express where the enactment language necessary implication, legis- indicates that the App lature intended such a result.” 51 Or at 89. The majority general notes that the basis of this rule potential litigants concern for the might unfairness *6 application arise from retroactive of laws. Courts traditionally legisla- reluctant, havе been in the absence of expression contrary, apply legislation tive to the retroac- tively disruption if to do so would result in unreasonable parties’ expectations the or an unreasonable alteration of parties legal relationship. principle the That focuses almost entirely upon legislation. the effect of the overriding determining prop
The consideration in statutory application, legislature’s er however, is the in application. applying general Therefore, tended the rule by majority, following noted the the considerations must be kept particular First, in mind. noted, whether a statute applied prospectively retrospectively solely should be matter of or is
ascertaining
legislature’s
intent. Perkins v.
(1975);
Industries,
Willamette
566, 570,
v.
286 Or
sent case is controlled general presumption in cases where the af- legislation out of rights arising fects and liabilities the parties their preexisting By applying "legislative transaction. relying effеct” rule of construction on Smith correctly Clackamas claims to County, supra, majority The majority’s of the issue before us on dispose appeal. and, therefore, conclusion, analysis its is incorrect two First, below, for reasons stated Smith v. Clack- respects. County, distinguishable amas from the case at supra, bar, in decision being arguably questionable addition to Second, which this court should not strain to follow. construction, "lеgislative contrary effect” rule of one of a majority’s opinion, merely myriad apparent determining rules to aid years over courts developed *7 our legislative Though widely by appellate intent. applied courts, every application it is neither determinative of in present issue nor the issue the case. in the the court in majority opinion,
As noted whether a statute changing Smith was asked to determine to be lеgal liability applied the basis of a was party’s an incident which oc- retroactively to a claim based on statute, the but not filed curred to the effective date of prior the to that date. The court reviewed enactment’s prior clause and noted: savings amending brings law wording
"The of Section 3 guides concepts frequently into conflict two considered (1) statutory presumed statutes are to be construction: retrospective only to be prospective, and will be considered (2) out; and the inclu- clearly spelled when such intent is legislative in- imply a specific matters tends sion of 252 Or at related matters not mentioned.” tent to exclude 233. to apply intent was that the argued
Plaintiff disag- Court The retroactively. Supreme the amendment the given be consideration Notwithstanding reed. the court concluded statutory language, amendment’s prеvailed against application the retroactive presumption legal liability. changed the basis because the amendment expressed the legislature though The court reasoned that it actions, to pending its intent not to the old statute to causes of action with reference left intent unexpressedits date, but to the amendment’s effective which accrued prior not been filed. The court noted: yet which had distinction, logical reason for "In the absence some Assembly for that the intend- there is no basis an inference by filed a certain ed to a distinction between actions draw by but not filed that date. Counsel date and actions accrued suggested have no for a distinction and we have basis presumption the Accordingly, we found none. believe 252 Or at legislation prevail.” should 233-34. is reasoning questionable in Smith court’s First, mere the lan- statutory
two fact that respects: Smith guage precise presented did address the issue Statutory language should not have been determinative. That intent can also not the intent. guide legislative sole which follow from be drawn from the obvious implications used. language correct, i.e., that legisla-
If the rationale of Smith then effecting rights applies prospectively, tion substantive was redun- legislature clause enacted savings pending an action on Obviously dant and meaningless. on amendment has accrued statutory effective date of all would exclude Thus, that date. the rule Smith amendment, regard- had accrued prior actions which judicial commenced less of the date action was the court If intended what legislature proceedings. did, unnecessary it was for it then Smith presumed to address specifically actions. pending new law to
94 construing legislation,
Because we аre we should give language simply effect to all of the used rather than apply judicial policy meaning in which effect denies to statutory phrases. legislature certain I conclude the had a savings purpose enacting in mind in clause in reviewed legislature Smith and in this in both case. instances intended the amendment to all causes of action except already subject legal those which had become the savings аction. Enactment of the clause demonstrates that legislature applying was the effect of concerned with retroactively. only pending the amendment It chose to save legislation. action from the new contrary Second, Smith, to the court in I discern logical why legislature reasons would have drawn pending distinction between cases and cases which had yet subject legal accrued but were not action. Thе litigants disruption judicial and the in unfairness to administration which would result amendment applying pending Any change cases obvious. in the legal posture point pending of a case at a when the case is Investigation disruptive. claims, in court would be legal upon existing well as the rendition of advice based may Pleadings, discovery, prepa- law, have occurred. trial compromise may ration, and settlement of claims have existing on been conducted hand, reliance law. On the other changing parties’ liability prior the basis of the to the be far less unfair. That the legal time action is taken would legislature would have drawn such a distinction seems both change logical Regardless and of whether the reasonable. rights parties, affected the "substantive” the clear compelling legisla- implication from the be drawn action was that the intended thе ture’s amend- ment to be the case before the court. Assuming correctly decided, that case is Smith was distinguishable Merely from the case at bar. because the present case, Smith, and in the enactments affect "sub- rights savings clauses, stantive” not resolve ity’s apparent guide similar does contain question Contrary major- us. before legislation’s belief, the is not the effect legislative Recent intent. decisions both of our appellate questioned courts the soundness of the have "sub- stantive”/"procedural” distinction embodied the rule. (1978); 77, 80, P2d 1238 Miller, 281 Or Mahana v. (1979). App 145, 589 There P2d SAIF, 38 Or Holmes courts in the search to assist rules of construction are other pre particular legislative assistance intent. Of for majority, ignored by are those rules case, sent *9 legislation’s only of the nature but not the examine effect the action. amendatory acts, as that It is settlеd that well such judgments change legislative are Smith, in in which issue legislative presumed, to the directive against the of in absence contrary, general rules retroac- to fall within the amendatory acts, application. hand, such On the other tive outright existing legisla- repeal here, in as that tion, issue contrary legislative presumed intent. evidence a are to (4th § Statutory Construction, ed Sutherland, 22.36 1A 1973). outright legislature repeals a law lim- Where the iting right passengers to the of motor vehicle recover general against drivers, their host the rule expression apply of does not absent clear contrary. legislative intent * «* * the general against retrospective rule [T]he provisions those of to construction statutes does amendment, by whether original repealed of the act the rights. In affecting procedural or the absence substantive statute, saving or some other clear indication of a clause or contrary, rights is to the all legislative that the intent provisions original the act dependent repealed on prosecuted completion which had not vested been destroyed. are prior to enactment of the amendment the * * *” omitted.) (Footnotes Sutherland, Statutory 1A Con- struction, § 22.36 at 200. legislative presumption respect action with such general prеsumption
completely opposite to the presumed retroactivity majority. Thus, it is the legislature intended retroactive such cases contrary expression application, of intent. a clear absent right present significantly, case the in the Even more deroga- purely statutory origin repealed was both law. tion of common
"The effect of of repeal a statute where neither a saving general сlause nor a exists saving pre- statute governing repeal, scribe the rule for effect of the is to destroy the effectiveness the repealed of act futuro and statute, which, right proceed to divest under the except proceedings closed, as to past is considered as if it had never existed.
[******] liabilities, "Under common principles rights, law all penalties, purely forfeitures and offenses which are statutory derivаtion and unknown law to the common are repeal them, effaced granted of the statute which *” * * (Footnotes irrespective of the time of their accrual. omitted.) Construction, Sutherland, § 1A Statutory 23.33 at 279-80. principle statutory analysis,
In the context savings pending clause addressed actions makes Applying savings majority’s rationale, sense. clause unnecessary verbage addressing problem. a nonexistent
Application of these rules the error in shows *10 majority’s speсifically conclusion. The did not prior "save” actions accrued to the amendment’s effective yet Having date, actions, but not filed. such "saved” they repeal granted are "effaced statute foregoing construction, them.” From the rules it is evi- general presumption dent neither nor Smith determines issue here. majority applied Smith, erred, Because the and it because error, conclusion I reached incorrect. would dismissing third-party hold that the trial court erred complaint Therefore, and would I reverse remand. dissent.
Joseph, join C.J., Buttler, J., dissent.