Max ZWEIZIG, Plaintiff-Appellant, v. Timothy C. ROTE, Defendant-Appellee, and NORTHWEST DIRECT TELESERVICES, INC.; Northwest Direct Marketing of Oregon, Inc.; Northwest Direct Marketing, Inc.; Northwest Direct of Iowa, Inc.; Rote Enterprises, LLC; and Does 1 through 5, Defendants.
No. 18-36060 | SC S067820
Supreme Court of Oregon
May 6, 2021
368 Or. 79 | 486 P.3d 763
NAKAMOTO, J.
Submitted on briefs December 23, 2020, certified question answered May 6, 2021. (United States Court of Appeals for the Ninth Circuit No. 18-36060)
The certified question is answered.
En Banc
On certified question from the United States Court of Appeals for the Ninth Circuit; certified order dated June 16, 2020, certification accepted July 30, 2020.
Timothy C. Rote, West Linn, filed the brief pro se.
James S. Coon, Thomas, Coon, Newton & Frost, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
NAKAMOTO, J.
The certified question is answered.
We address a certified question from the United States Court of Appeals for the Ninth Circuit concerning whether a statutory damages cap applies to an award of noneconomic damages in an unlawful employment practice action. Plaintiff Max Zweizig brought this action in the federal district court in Oregon, alleging that corporate defendants had retaliated against him and that defendant Timothy C. Rote had aided and abetted the corporations in violation of Oregon statutes. The jury found for plaintiff and awarded him $1,000,000 in noneconomic damages. Over plaintiff‘s objection, the district court entered a judgment for only half that amount after applying the noneconomic damages cap set out in
The Ninth Circuit certified the following question of state law to this court: “Does Oregon Revised Statutes § 31.710(1) cap the noneconomic damages awarded on an employment discrimination claim under Oregon Revised Statutes § 659A.030?” We accepted the question under
I. FACTS AND PROCEDURAL POSTURE
We take the facts, which are mainly procedural, from the Ninth Circuit‘s certification order. Plaintiff, a former employee of Northwest Direct Teleservices, Inc., brought an
Defendant sought a reduction in the amount of the award to be included in the judgment, arguing that the award was subject to the noneconomic damages cap in
The district court applied the $500,000 damages cap to the jury‘s award. Zweizig v. Northwest Direct Teleservices, Inc., 331 F. Supp. 3d 1173 (D. Or. 2018). Examining the text of
Defendant appealed the judgment, and plaintiff cross-appealed, assigning error to the district court‘s imposition of the noneconomic damages cap in an unlawful employment practice case. The Ninth Circuit rejected defendant‘s arguments in a memorandum disposition. Zweizig v. Rote, 818 Fed. Appx. 645 (9th Cir.), cert den, ___ U.S. ___, 141 S. Ct. 848, 208 L. Ed. 2d 424 (2020). In a contemporaneously filed order, the Ninth Circuit certified the question that this court accepted: “Does Oregon Revised Statutes § 31.710(1) cap the noneconomic damages awarded on an employment discrimination claim under Oregon Revised Statutes § 659A.030?”
II. ANALYSIS
Whether the cap on noneconomic damages in
In full,
“Except for claims subject to
ORS 30.260 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.) The parties dispute how to parse the emphasized text, with each offering different views about both the extent of the participial phrase and the object that it modifies.
Plaintiff contends that the participial phrase is “including emotional injury or distress, death or property damage,” which modifies “damages arising out of bodily injury.” Thus, according to plaintiff, if, and only if, the damages arise out of bodily injury, then noneconomic damages for (1) emotional injury or distress, (2) death, or (3) property damage are subject to the $500,000 cap. But defendant contends that the object being modified is “bodily injury” and that the participial phrase is “including emotional injury or distress.” In defendant‘s view, no showing of bodily injury is needed; rather, the cap applies to damages arising out of three types of harms: (1) bodily injury, which equates with emotional injury or distress; (2) death; or (3) property damage.
Because this court bears responsibility for correctly construing a statute, regardless of the parties’ proffered interpretations, Stull v. Hoke, 326 Or. 72, 77, 948 P.2d 722 (1997), we have considered a third reading of the text that neither party has addressed: that the phrase “including emotional injury or distress” modifies “damages arising out of bodily injury.” With that view of the text, the noneconomic damages cap in
B. Textual Analysis
As this court has often repeated, “the text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature‘s intent.” PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The first part of the disputed text states that the cap applies “in any civil action.”
Instead, whether the damages cap in
The syntax of the sentence does permit plaintiff‘s view that the disputed phrase contains a series of three examples of damages arising out of bodily injury. But that reading—which ascribes to the legislature an understanding that both death and property damage arise out of a bodily injury—appears off the mark. The word “arise,” as used as an intransitive verb, means “to originate from a specified source.” Webster‘s Third New Int‘l Dictionary 117 (unabridged ed 2002). Property damage arising from bodily injury would mean that bodily injury is the source of property damage, an unlikely circumstance at best.
The next interpretative dispute is over what the participial phrase modifies. If the phrase “including emotional injury or distress” modifies only “bodily injury,” as defendant contends, then it would appear that the legislature has defined a bodily injury to include emotional injury for purposes of the damages cap. But if the phrase modifies “damages arising out of bodily injury,” as plaintiff contends, then emotional injury is subject to the cap when it arises out of a bodily injury. Although both readings are plausible, turning again to grammar and punctuation, we view the latter reading as the one that the legislature more likely intended.
In the phrase “damages arising out of bodily injury,” the noun “damages” is modified by another participial phrase serving as an adjective, “arising out of bodily injury.” This time, however, the participial phrase is not set off by commas, and so it is, grammatically speaking, restrictive.
The contrary view adopted by the district court and defendant—that “bodily injury” is the noun modified by the phrase “including emotional injury or distress“—is plausible. But that reading would mean that the legislature defined “bodily injury” as including or exemplified by “emotional injury or distress.” Considering the commonly used meaning of “bodily injury,” however, it is unlikely that the legislature intended bodily injury to be equated with emotional injury.
The term “bodily injury” is not defined in
We first examine the common meaning of the term “bodily injury.” “Injury” is defined as “an act that damages, harms, or hurts ***” Webster‘s at 1164. The adjective “bodily” means “having a body or a material form: PHYSICAL ***” Id. at 245. Webster‘s lists “physical” as a synonym of bodily, explaining that “[bodily] contrasts with mental or spiritual ***.” Id. (emphasis in original). Commonly understood, a bodily injury is a physical injury.
And if “bodily injury” is used as a legal term of art, Black‘s Law Dictionary defines “bodily injury” as “[p]hysical damage to a person‘s body.” Bryan A. Garner, Black‘s Law
Emotional injury differs from physical injury. “Emotional” means “of or relating to emotion, esp. to more than usual emotion ***” Webster‘s at 742. Although the term “emotional injury” is not defined in Black‘s Law Dictionary, the term “emotional distress” is defined as “[a] highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person‘s conduct; emotional pain and suffering.” Black‘s Law Dictionary at 596. And the Restatement (Third) of Torts spells out that “‘[e]motional harm’ is distinct from bodily harm ***” Restatement (Third) of Torts § 4 comment a (2010).4
That distinction can be seen in this court‘s case law. Recently, for example, the court recognized and expounded on the distinction between physical injury and emotional injury in Philibert v. Kluser, 360 Or. 698, 385 P.3d 1038 (2016). Philibert was a case involving whether siblings who were not physically injured but who suffered emotional injuries from witnessing the death of their brother, who was run over by a truck as they were crossing the street, could recover emotional distress damages from the negligent truck driver. Id. at 700. We observed that, “[i]n contrast to physical harms, emotional harms occur frequently,” id. at 703, and explained that, as a result, “foreseeability, standing alone, is not a useful limit on the scope of liability for emotional injuries” caused by negligent conduct, as it is in the case of physical harms, id. at 704. At the same time, we recognized the “general rule that emotional distress damages are available to a plaintiff who is physically injured,” id. at 703 n. 2, in contrast to the limited circumstances in which a person‘s emotional well-being is legally protected, id. at 704 n. 3.
C. Context
The context of
In
“subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.”
In view of the statutory definitions that the legislature crafted in
Other parts of the session law further suggest that the legislature intended to impose the cap on noneconomic
Like section 6, which imposed the cap on noneconomic damages, other sections of SB 323 also listed bodily injury, death, and property damage as a group of three categories of harms. In section 7, now codified at
“[i]n any civil action arising out of bodily injury, death or property damage, including claims for emotional injury or distress, loss of care, comfort, companionship and society, and loss of consortium, the liability of each defendant for noneconomic damages awarded to plaintiff shall be several only and shall not be joint.”
Or Laws 1987, ch 774, § 7 (emphasis added). Similarly, in the next section of SB 323, the legislature addressed contingent fee agreements in “any civil action arising out of bodily injury, death or property damage.” Id. § 8 (originally codified at ORS 9.400, renumbered as
D. Legislative History
We recognize that section 6 was the only provision within SB 323 to insert the participial phrase “including
The Senate Judiciary Committee met on March 19, 1987, to discuss SB 323. The Committee Administrator, counsel Eric Carlson, mentioned that similar, yet inconsistent language existed throughout the bill. For example, what is now codified as
The committee chairman, Senator William Frye, responded, conveying that he believed that the text of
Although the legislative history of SB 323 does not expressly address whether the legislature intended unlawful employment practice claims involving purely emotional injury to be subject to the noneconomic damages cap, the focus of the bill is consistent with our reading of the statute that the legislature did not intend to cap such damages. Following changes in tort liability during the 1970s, liability insurers and their insureds became worried that those changes would result in increased—and unpredictable—jury awards in tort cases, which in turn would increase insurance premiums. Vasquez, 364 Or. at 628. Governor Victor Atiyeh responded by appointing a Task Force on Liability, which met with the legislature‘s Joint Interim Task Force on Liability Insurance, to consider further tort reform measures to lower those insurance premiums. Id. One of the stated goals of the Joint Interim Task Force on Liability Insurance was to cap noneconomic, or “pain and suffering,” damage awards. Id. (citing Minutes, Joint Interim Task Force on Liability Insurance, Feb 25, 1986, 4). This court has recognized that the general goal of the cap on noneconomic damages in SB 323 was to reduce the costs of insurance premiums and the costs of litigation that the legislature was addressing. Greist v. Phillips, 322 Or. 281, 298-99, 906 P.2d 789 (1995), overruled on other grounds by Busch v. McInnis Waste Systems, Inc., 366 Or. 628, 468 P.3d 419 (2020).
The legislative history does not reflect that the legislature discussed applying the noneconomic damages cap to every award of noneconomic damages, regardless of the type of claim involved; rather, the cap was discussed exclusively in the context of claims involving physical injury or death. The Governor‘s Task Force on Liability‘s Final
Additionally, the legislature received testimony and exhibits demonstrating the focus of SB 323: to reduce defendant liability in tort actions involving a physical injury or death and to create predictability in jury awards for such tort actions. For example, a witness testified before the House Judiciary Committee about the average payouts in bodily injury cases involving product liability and described cases that involved death or physical injuries, including permanent grave injuries (such as quadriplegia and severe brain damage requiring lifelong care) and permanent major injuries (such as paraplegia, blindness, loss of limbs, and brain damage). See Minutes at 14, House Committee on Judiciary, SB 323, Apr 3, 1987 (statement of products liability study member Charles Crawford). Another witness, a law professor with expertise in the field of tort law, provided information to the Senate Judiciary Committee about the noneconomic damage cap, describing the forms of damages available to plaintiffs in the context of “personal injury actions.” Exhibit C at 6, Senate Committee on Judiciary, SB 323, Jan 27, 1987 (accompanying statement of University of Oregon School of Law Professor Dominick Vetri). He noted that “[p]ain and suffering and mental distress comprise a general category that allows the jury to award monetary damages for physical pain and suffering now and in the future as well as for emotional injuries resulting from the accident.” Id. (emphasis added).
The text and context of
The certified question is answered.