Chapter 012

 

      Chapter 12

 

NOTES OF DECISIONS

 

      An action for personal injuries caused by breach of implied warranty is clearly one for which “different limitation is prescribed by statute” under ORS 12.010 and thus is not governed by provisions of this chapter. Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973)

 

      12.010

 

NOTES OF DECISIONS

 

      Unless expressly provided otherwise, where statutory amendment reduces time for bringing action, reduction does not act to cut off rights accrued under old law. Bower Trucking and Warehouse Co. v. Multnomah County, 35 Or App 427, 582 P2d 439 (1978)

 

      Where allegedly libelous memorandum was confidential in nature and initial publication was not of type plaintiff would be presumed to know about, cause of action was deemed to accrue at time plaintiff discovered existence of memorandum. White v. Gurnsey, 48 Or App 931, 618 P2d 975 (1980)

 

      In action for alleged occupational disease (asbestosis), it was error for trial court to conclude as matter of law that action accrued under this section and ORS 12.110 in December 1975 where medical report in October indicated plaintiff’s condition “should improve without medication” and record amply reflected possibility plaintiff did not know what was causing his illness. Lundy v. Union Carbide Corp., 695 F2d 394 (1982)

 

      Claim for occupational disease accrues when “reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition. Lundy v. Union Carbide Corp., 695 F2d 394 (1982), citing Schiele v. Hobart, 284 Or 483, 587 P2d 1010 (1979)

 

      Statute of limitations for tort of intentional interference with contractual relationship does not depend on date of discovery of interference but rather when damages accrued. Cramer v. Stonebridge Inn, 77 Or App 407, 713 P2d 645 (1986)

 

      Determination as to whether action is “commenced within periods prescribed in this chapter” is subject to ORS 174.120 method of computing limitation period. Stupek v. Wyle Laboratories Corp., 327 Or 433, 963 P2d 678 (1998)

 

      12.020

 

NOTES OF DECISIONS

 

      Where federal matter or federal cause of action is involved, time for commencement of action is not governed by this statute, but by Federal Rule of Civil Procedure 2. Wells v. City of Portland, 102 FRD 796 (1984)

 

      Substituted service under ORCP 7D was sufficient for court to acquire jurisdiction within period of limitation and mailing of the complaint was not also necessary. Korgan v. Gantenbein, 74 Or App 154, 702 P2d 427 (1985)

 

      Limitations period of this section was not tolled by ORS 12.150 where defendant foreign corporation could have been served under the long arm statute. Bancorp Leasing and Financial Corp. v. Agusta Aviation Corporation, 813 F2d 272 (1987)

 

      Action under federal maritime law, which is subject to federal statute of limitations, was commenced at time complaint was filed, and this section, which purports to make time of service time of commencement for limitations purposes, was inapplicable. Hurley v. Shinmei Kisen K.K., 98 Or App 180, 779 P2d 1041 (1989), Sup Ct review denied

 

      With regard to commencement of action, specific procedures control over general procedures in this section. State v. 132.85 Acres, 114 Or App 339, 834 P2d 526 (1992), Sup Ct review denied

 

      Where plaintiff is indigent person who is incarcerated in prison facility, civil action is deemed “filed” when complaint is received by court. Stull v. Hoke, 326 Or 72, 948 P2d 722 (1997)

 

      Sixty-day period during which service of summons allows action to be deemed commenced on date complaint was filed is not affected by federal rule establishing longer maximum time for service. Torre v. Brickey, 278 F3d 917 (9th Cir. 2002)

 

      Service of corrected summons within 60 days after filing of complaint does not relate back unless original summons providing notice was served on proper defendant prior to running of statute of limitations. Smith v. American Legion Post 83, 188 Or App 139, 71 P3d 136 (2003), Sup Ct review denied

 

      Where amended complaint does not add additional parties, service of summons and copy of amended complaint within 60 days after filing of original complaint is sufficient to relate back to filing date of unserved original complaint. Kowalski v. Hereford L’Oasis, 190 Or App 236, 79 P3d 319 (2003), Sup Ct review denied

 

      Provision that action commences upon filing if summons is served within following 60 days applies to claims under Oregon Tort Claims Act. Baker v. City of Lakeside, 343 Or 70, 164 P3d 259 (2007)

 

      12.050

 

NOTES OF DECISIONS

 

Application to public property

 

      Statute of limitations could not properly be asserted against state’s cause of action in ejectment. State ex rel Highway Division v. Rosanbalm, 31 Or App 717, 571 P2d 537 (1977), Sup Ct review denied

 

Necessity for possession

 

      Adverse claimant must establish occupation or use of land that would be made by owner of same type of land, taking into account uses for which land was suitable. Almond v. Anderegg, 276 Or 1041, 557 P2d 220 (1976); Lee v. Hansen, 282 Or 371, 578 P2d 784 (1978)

 

      In determining whether party has shown sufficient occupancy and use to establish title by adverse possession, use for which land is suitable should be taken into account. Hopkins v. State of Oregon, 96 Or App 717, 773 P2d 825 (1989)

 

Exclusiveness of possession

 

      Where adverse claimant built roadway across land, used roadway for passage and planted crops on bordering piece of land, activities of adverse claimant established exclusive possession of roadway and bordering piece of land. Almond v. Anderegg, 276 Or 1041, 557 P2d 220 (1976)

 

      Where adverse claimants had built clothesline and maintained strip of land under it, exclusive use requirement was satisfied, even though claimants allowed neighbors to use clothesline with permission. Russell v. Gullett, 285 Or 63, 589 P2d 729 (1979)

 

      Because occupant used strip of land between suburban lots consistent with typical suburban owner, occupant exclusively possessed strip of land. Schoeller v. Kulawiak, 118 Or App 524, 848 P2d 619 (1993), Sup Ct review denied

 

Hostile character of possession

 

      Where possession under belief of ownership was based on pure mistake, hostility element was satisfied. Lee v. Hansen, 282 Or 371, 578 P2d 784 (1978)

 

      Plaintiff acted under claim of right for requisite period where he used disputed parcels for agricultural production and knowledge that others paid the taxes on the land did not defeat his claim. Garrett v. Lundgren, 41 Or App 23, 596 P2d 1318 (1979), Sup Ct review denied

 

      Knowledge that record owner was paying taxes on parcel is evidence that adverse possessor used property furtively or with permission. White v. Chandler, 52 Or App 951, 630 P2d 372 (1981)

 

      Use of area in manner that exceeded easement right in property meant use was not permissive. Schoeller v. Kulawiak, 118 Or App 524, 848 P2d 619 (1993), Sup Ct review denied

 

Open and notorious character of possession

 

      Where plaintiffs made no attempt to clear brush from disputed parcel and made few plantings to fill in gaps in “privacy screen” but otherwise never entered parcel, there was no evidence to support finding that their use of parcel as privacy screen was open and notorious for required period. Corson v. Williford, 44 Or App 145, 605 P2d 1194 (1980)

 

      Mere existence of overgrown foundation claimed as boundary to disputed strip of land was insufficient notice of adverse claim. Bartell v. Hollinshead, 47 Or App 145, 617 P2d 688 (1980)

 

      Where predecessor in interest to disputed strip of land openly declared property to be his own and exclusively used land for 15-year period as average owner would by maintaining fence, cutting fallen trees and running horses and cattle on property predecessor established title by adverse possession so defendants, as successors in interest, succeeded to his interest. Braley v. Hess, 48 Or App 505, 617 P2d 308 (1980)

 

      Where parties claiming adverse possession of three lots adjacent to their business proved that they had paid taxes on property for 20 years and that they had made use of various parts of property at different times over 20-year period, evidence showed that they had occupied and used property in same manner as owner of property would have done and therefore had established ownership by adverse possession. Owens v. Bartruff, 59 Or App 37, 650 P2d 155 (1982), aff’d 297 Or 610, 687 P2d 1072 (1984)

 

Continuity of possession

 

      Where adverse claimant built roadway across land, used and maintained roadway, planted crops and harvested hay from bordering piece of land for several years and record owner did not act for 28 years, adverse claimant established continued possession of roadway and bordering piece of land. Almond v. Anderegg, 276 Or 1041, 557 P2d 220 (1976)

 

      Where the only action by defendant inconsistent with use of easement was locking of one gate during deer hunting season and there was no indication that use of easement was limited to deer season, requirement that adverse use be continuous was not satisfied. Abbott v. Thompson, 56 Or App 311, 641 P2d 652 (1982), Sup Ct review denied

 

      Conclusion that ten years continued to accrue after plaintiffs filed suit and up to time interest was conveyed to defendants was erroneous application of statute of limitations. Evans v. Hogue, 296 Or 745, 681 P2d 1133 (1984)

 

      Where there is evidence of intent between grantor and grantee to transfer grantor’s interest in property, grantee may acquire grantor’s interest, vested and complete, in those situations in which grantor has adversely possessed for statutory period. Evans v. Hogue, 296 Or 745, 681 P2d 1133 (1984)

 

Relationship of parties

 

      Where cotenant held land under deed purporting to convey full title, and cotenant met all requirements of adverse possession, no actual notice of ouster was required. Nedry v. Morgan, 284 Or 65, 584 P2d 1381 (1978)

 

      During administration period, administrator may not acquire by adverse possession real property previously belonging to decedent, without fully informing heirs of value and nature of their interest in land. Venator v. Quier, 285 Or 19, 589 P2d 731 (1979)

 

Effect of adverse possession

 

      Where defendant’s title to disputed parcel of property had matured by adverse possession, doctrine of relation-back applied to prevent recovery for timber trespass under ORS 105.815. Breuer v. Covert, 47 Or App 225, 614 P2d 1169 (1980), Sup Ct review denied

 

Prescriptive title to easements

 

      Proof of adverse uses must be clear and positive. State Hwy. Comm. v. Bauman, 16 Or App 275, 517 P2d 1202 (1974), Sup Ct review denied

 

      Where defendants could not rebut continuous, open and notorious use by showing permission to use road, use was sufficiently adverse to establish easement by prescription. Kondor v. Prose, 50 Or App 55, 622 P2d 741 (1981)

 

      Defendants carried burden of proving adverse use when they used driveway under mistaken belief that it was easement described in their deed, did not use driveway with plaintiff’s permission and did all maintenance and major repair work. Hanscam v. Sousa, 56 Or App 117, 641 P2d 86 (1982)

 

      Presumption of adverseness which arose from plaintiff’s continuous use of road for 10 years was rebutted where there was no evidence that plaintiff’s use interfered with defendant’s use of road which defendant had constructed before plaintiff’s acquisition of his property. Stone v. Henry Enterprises, Inc., 95 Or App 355, 768 P2d 442 (1989)

 

Evidence

 

      Evidence that contested strip of land had been enclosed by substantial fence for more than statutory period was insufficient to establish adverse possession. Woolfolk v. Isler, 37 Or App 687, 588 P2d 632 (1978)

 

      Where testimony of possessor of land, who had lived on land more than 10 years, did not clearly establish when he began to assert an adverse claim, no title by adverse possession was established. McCall v. Hyde, 39 Or App 531, 592 P2d 1064 (1979)

 

      Proof of use of portion of disputed strip as garden was not sufficiently clear and convincing so as to establish continuity of adverse use. Bartell v. Hollinshead, 47 Or App 145, 617 P2d 688 (1980)

 

LAW REVIEW CITATIONS: 4 EL 391 (1974)

 

      12.070

 

NOTES OF DECISIONS

 

      A forum state may apply its own statute of limitations to actions seeking to enforce foreign judgments since such a limitation is procedural rather than substantive in nature. Newhouse v. Newhouse, 271 Or 109, 530 P2d 848 (1975)

 

      This section applied to city water service overcharges with respect to beneficiaries of deed covenant. Aspgren v. City of Columbia City, 34 Or App 991, 581 P2d 536 (1978)

 

      12.080

 

NOTES OF DECISIONS

 

In general

 

      Where legally blind plaintiff brought cause of action two years after discovering conversion of belongings but nine years after conversion took place, plaintiff commenced action in timely manner under this section because discovery rule, which provides that cause of action accrues when plaintiff obtained or reasonably should have obtained knowledge of tort, applies to this section. Rice v. Rabb, 354 Or 721, 320 P3d 554 (2014)

 

      This section applies to actions for interference with or injury to “interest” in real property, not to actions for damage to property itself, which are subject to two-year limitation period under ORS 12.110 and not six-year limitation period under this section. Goodwin v. Kingsmen Plastering, Inc., 359 Or 694, 375 P3d 463 (2016)

 

Action upon a contract or liability, express or implied

 

      An action against an insurer under an uninsured motorist clause in the policy is governed by the contract provision of this section. Turlay v. Farmers Ins. Exch., 259 Or 612, 488 P2d 406 (1971)

 

      An action for indemnity is based upon an implied contract and is governed by this section. Owings v. Rose, 262 Or 247, 497 P2d 1183 (1972)

 

      An action in federal court for fraud or misrepresentation under S.E.C. Rule 10b-5 is not governed by this section. Hoffert v. E.F. Hinkle & Co., Inc., 56 FRD 395 (1972)

 

      This section and not [former] ORS 76.1110, applies to contracts for the payment of wages when the original obligor on such contract has sold the assets of his business to another. State ex rel Nilsen v. Ben Jacques Chev. Buick, Inc., 16 Or App 552, 520 P2d 366 (1974)

 

      The tort action against a Kansas airplane manufacturer on account of a Washington accident was not barred where filed three months after the accident. Forsyth v. Cessna Aircraft Co., 520 F2d 608 (1975)

 

      An action to recover from a surety or a supersedeas bond, when based on the undertaking rather than on a judgment, is barred after six years. Friedman v. Doak, 276 Or 1001, 557 P2d 237 (1976)

 

      Legislature intended six year statute of limitations to apply to all contracts not specifically excepted, and thus this section applied to action for breach of express warranty against seller of apartments and glass company, which contracted to repair defective windows. Portland Hous. Auth. v. Ash Nat’l, 36 Or App 391, 584 P2d 776 (1978)

 

      Where gravamen of plaintiff’s complaint was failure of defendant to abide by its express contractual duty to alleviate unsatisfactory conditions as might appear during 2-year guarantee period, complaint sounded in contract and limitation period of this section governed. Amfac Foods v. Fred Snyder Roofing, 43 Or App 107, 602 P2d 321 (1979), Sup Ct review denied

 

      Whether action for violation of agreement is tort or contract claim depends on whether agreement refers only to general standard of care applicable or sets forth particular standards to be followed. Securities-Intermountain v. Sunset Fuel, 289 Or 243, 611 P2d 1158 (1980); Dauven v. St. Vincent Hospital, 130 Or App 584, 883 P2d 241 (1994)

 

      Actions for federal civil rights violations are subject to limitation applicable to liability created by statute, not to limitation applicable to tort actions. Clark v. Musick, 623 F2d 89 (1981); Plummer v. Western International Hotels, 656 F2d 502 (1981)

 

      Action for deprivation of civil rights alleging harassment by local government entities was controlled by two-year statute of limitations of Tort Claims Act. Kosikowski v. Bourne, 659 F2d 105 (1981)

 

      Limitation period of this section governs actions for damages by purchaser against builder-seller of house for amounts necessary to remedy defects in construction of house. Beveridge v. King, 292 Or 771, 643 P2d 332 (1982)

 

      In action for employment discrimination under 42 U.S.C. 1981, controlling limitation period was that of this section, not ORS 12.110. Wrighten v. Metropolitan Hospitals, Inc., 726 F2d 1346 (1984)

 

      Where action was in contract, although claimed breach sounded in fraud or deceit, that is, in tort, action was timely where filed two and one-half years after cause of action was discovered. Erickson Hardwood Co. v. North Pacific Lumber, 70 Or App 557, 690 P2d 1071 (1984), Sup Ct review denied

 

      In action by union to compel arbitration of grievance, six-month limitation period under National Labor Relations Act applies, rather than six year period under this section. Millmen’s Union Local No. 1120 v. Pay Less Drug, 589 F Supp 675 (1984)

 

      Where relationship is between contracting parties and claim alleges negligent performance of contract, action must be brought as contract claim unless independent standard of care is established. Marinelli v. Ford Motor Co., 72 Or App 268, 696 P2d 1 (1985), Sup Ct review denied; Georgetown Realty v. The Home Insurance Company, 313 Or 97, 831 P2d 7 (1992)

 

      Because [former] ORS 237.075 creates contract between public employees and state, this section provides statute of limitations for alleged violations of that contract. Alderson v. State of Oregon, 105 Or App 574, 806 P2d 142 (1991)

 

      Where account or account stated claim involves underlying sale of goods, UCC 4-year statute of limitations for contract claims under ORS 72.7250 applies rather than 6-year period of this statute. Moorman Manufacturing Co. v. Hall, 113 Or App 30, 830 P2d 606 (1992), Sup Ct review denied

 

      Statute of limitations for breach of fiduciary duty depends on whether basis of claim is contractual or non-contractual. Assn. of Unit Owners v. Far West Federal Bank, 120 Or App 125, 852 P2d 218 (1993)

 

      Action for abatement of purchase price and restitution of monies paid on sales agreement was equitable claim not subject to statute of limitations. Assn. of Unit Owners v. Far West Federal Bank, 120 Or App 125, 852 P2d 218 (1993)

 

      Complaint seeking royalties for product made by defendant using plaintiff’s idea was action for breach of contract, not tort of misappropriation of ideas. Jaqua v. Nike, Inc., 125 Or App 294, 865 P2d 442 (1993)

 

      Limitation period established by this section is default period, applicable absent different limitation period specified by contract. Reedsport School District No. 105 v. Gulf Insurance Co., 210 Or App 679, 152 P3d 988 (2007)

 

      Exception to duration of statute of limitations for construction defect claims is limited to actions against professionals that are listed in provision that sets statute of limitations for those claims. Waxman v. Waxman & Associates, Inc., 224 Or App 499, 198 P3d 445 (2008)

 

Injury to interest of another in real property

 

      Financial injury incurred by plaintiffs because they purchased residence in reliance on defendant’s inspection which failed to disclose the existence of dry rot was not an injury to property. Morrison v. Ardee Pest Control, 62 Or App 506, 661 P2d 576 (1983)

 

      In action for damages on alleged oral contract to perform certain architectural services, allegations of injuries were those to “any interest of another in real property” and this section was applicable period of limitation. Taylor v. Settecase, 69 Or App 222, 685 P2d 470 (1984)

 

      Action against defendant builder alleging breach of implied obligation to perform construction in workmanlike manner is action for injury to interest in real property. Sutter v. Bingham, 81 Or App 16, 724 P2d 829 (1986)

 

Actions as to personalty

 

      Where lessor damaged own property, resulting economic loss to lessee was not injury to personal property. Port of Portland v. Brady-Hamilton, 62 Or App 92, 659 P2d 995 (1983)

 

When statute commences to run

 

      Cause of action for breach of a divorce property settlement agreement to maintain life insurance did not accrue until the death of obligor. Carothers v. Carothers, 260 Or 99, 488 P2d 1185 (1971)

 

      Where plaintiff’s complaint alleges facts sufficient to constitute fraudulent concealment of the cause of action the statute is tolled until discovery or reasonable opportunity of discovery of the fact. Chaney v. Fields Chev. Co., 264 Or 21, 503 P2d 1239 (1972)

 

      Note payable “on demand after date” becomes due and payable without demand on the day after its date; statute of limitations begins to run from that day. Culver v. Andres, 26 Or App 809, 554 P2d 541 (1976)

 

      A promissory note payable “on demand” is due immediately without an actual demand, and the statute of limitations commences to run against the note from the date of its execution and delivery. Culver v. Andres, 26 Or App 809, 554 P2d 541 (1976)

 

      This section applied to overcharges of city under water service contract. Aspgren v. City of Columbia City, 34 Or App 991, 581 P2d 536 (1978)

 

      Where goods were damaged during shipment by carrier, and buyer never received bill of lading, buyer was not aware of and could not be bound by clause in bill of lading establishing two year statute of limitations. Lord Electric Co. v. Pacific Intermountain Express, 282 Or 335, 578 P2d 776 (1978)

 

      Action against former owners of abutting property for trespass and nuisance resulting from erosion of earth embankment onto plaintiff’s property was barred because owners had not commenced action within six-year statute of limitations and statute was not tolled on theory that trespass was continuing tort. Denora v. Fischer Eng., 55 Or App 448, 638 P2d 490 (1982)

 

      Where FDIC brought action against former officers and directors of three banks which merged into bank later declared insolvent alleging violation of federal statutes and regulations prohibiting loans to officers and directors, since claim was common law tort claim, three-year statute of limitations applied not six-year contract limitation. FDIC v. Former officers and Dir. of Metro. Bank, 705 F Supp 505 (D. Or. 1987)

 

      Where rent was based on percentage of annual receipts from crops grown and total accounting was due “once all crops for that year have been sold,” plaintiff’s contention that his right to payment did not accrue until crops were sold was supported by language of contract and conduct of parties. Obrist v. Aylett, 99 Or App 99, 781 P2d 381 (1989)

 

      Each annual decision not to promote employee constituted separate alleged breach of employment contract with separate statute of limitations period. Bohm v. Oregon Institute of Technology, 126 Or App 281, 868 P2d 1344 (1994)

 

LAW REVIEW CITATIONS: 52 OLR 92 (1972)

 

      12.100

 

NOTES OF DECISIONS

 

      Double damages provision is not penalty or forfeiture if designed to ensure adequate compensation in cases where damages are difficult to ascertain or insufficient to offset inconvenience of seeking recovery. Diaz v. Coyle, 152 Or App 250, 953 P2d 773 (1998)

 

      12.110

 

NOTES OF DECISIONS

 

In general

 

      A defendant’s misrepresentations do not delay running of statute of limitations if, despite the representations, plaintiff knew or should have known that she had a cause of action. Duncan v. Augter, 62 Or App 250, 661 P2d 83 (1983), Sup Ct review denied; see also 286 Or 723, 596 P2d 555 (1979)

 

      Insurer’s advance payments and waiver of statute of limitations did not create duty to give notice of end of waiver period and was not enough to lull plaintiff into false sense of security so as to estop defense of statute of limitations. Johnson v. Kentner, 71 Or App 61, 691 P2d 499 (1984), Sup Ct review denied

 

      Application of subsection (4) of this section in minor plaintiff’s medical malpractice action did not violate Article I, sections 10 and 20 of Oregon Constitution, nor Equal Protection Clause of federal Constitution. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

 

      Limitation of actions for professional malpractice under this section does not bar action under ORS 30.275. O’Brien v. State of Oregon, 104 Or App 1, 799 P2d 171 (1990)

 

      Applicable statute of limitations for actions under ORS 654.062 is one-year period for filing unlawful employment practice claim. Raptopolous v. WS, Inc., 738 F. Supp. 394 (D. Or. 1990)

 

      Existence of continuing course of treatment does not preserve cause of action for treatment events that are time-barred. Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 918 P2d 453 (1996), Sup Ct review denied

 

      Running of limitation period commences when plaintiff knows or has reason to know that some harm has been incurred and cause of action exists, even though extent and details of harm may not be known. Widing v. Schwabe, Williamson & Wyatt, 154 Or App 276, 961 P2d 889 (1998)

 

Injury to the person

 

      Two year statute of limitations was applicable to action seeking damages for emotional stress and mental anguish allegedly intentionally inflicted. Davis v. Bostick, 282 Or 667, 580 P2d 544 (1978)

 

      Where plaintiff failed to serve either defendant (whose whereabouts were unknown) or Administrator of Motor Vehicles Division within two years after automobile accident, plaintiff’s action was barred by two-year limitation under this section, despite three-year limitation provided by [former] ORS 15.190. Peterson v. Day, 283 Or 353, 584 P2d 253 (1978)

 

      Where meat wrapper brought action for permanent injuries caused by polyvinyl chloride fumes from meat wrapping machine, and there was no showing of prevalent knowledge concerning dangers of such fumes, statute did not begin to run until disease was diagnosed by physician. Schiele v. Hobart Corp., 284 Or 483, 587 P2d 1010 (1978)

 

      In strict liability action for personal injuries, limitation period of this section was not tolled by ORS 12.150 where defendant foreign corporation could have been served under [former] ORS 57.700. Santos v. The Flxible Co. Inc., 41 Or App 89, 597 P2d 373 (1979)

 

      In wrongful death action allegedly resulting from medical malpractice, three year wrongful death limitation under ORS 30.020 applied rather than two year medical malpractice limitation under this section. Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979), Sup Ct review denied

 

      In strict liability action for injury caused by insecticide, where complaint alleged that plaintiff-food packing plant employe commenced action within two years of discovery of cause of physical problems and injuries, action was not barred by statute of limitations. Colvin v. FMC Corp., 43 Or App 709, 604 P2d 157 (1979)

 

      Tolling provisions of statute because of misleading representation apply to careless or innocent misrepresentation only if misrepresentation concerns something other than proper performance of treatment forming basis of complaint. Duncan v. Augter, 286 Or 723, 596 P2d 555 (1979)

 

      Action for deprivation of civil rights alleging harassment by local government entities was controlled by two-year statute of limitations of Tort Claims Act. Kosikowski v. Bourne, 659 F2d 105 (1981)

 

      Where issue in medical malpractice action was running of statute of limitations, plaintiff should have discovered existence of cause of action upon realizing: 1) an injury; 2) that injury could be attributed to act of alleged tortfeasor; and 3) that act of alleged tortfeasor was somehow negligent and failure to instruct jury based on this standard was error. Hoffman v. Rockey, 55 Or App 658, 639 P2d 1284 (1982), Sup Ct review denied

 

      This section was applicable to claim of union member against local for breach of its duty of fair representation. McNaughton v. Dillingham Corp., 707 F2d 1042 (1983)

 

      Action for professional malpractice was time-barred where plaintiff knew more than 2 years before commencement of action that he had been damaged and that defendants’ negligence was cause of damage; knowledge by plaintiff of extent of damages was immaterial in determining when statute commences running. Godfrey v. Bick & Monte, 77 Or App 429, 713 P2d 655 (1986), Sup Ct review denied

 

      Claims for malpractice should not have been dismissed though plaintiff did not file action within 5-year limitation period of this section. Skuffeeda v. St. Vincent Hospital, 77 Or App 477, 714 P2d 235 (1986), Sup Ct review denied

 

      Where plaintiffs were harmed by attorney’s negligent drafting of contract and knew more than 2 years before commencing malpractice action that negligence was cause of their harm, action was barred. Magnuson v. Lake, 78 Or App 620, 717 P2d 1216 (1986)

 

      Dismissal of civil rights action for wrongful arrest was proper where both general tort statute and Oregon Tort Claims Act statute provide for two-year limitations period, though limitation of general tort statute should have been applied. Davis v. Harvey, 789 F2d 1332 (1986)

 

      Where plaintiff alleged injury from diagnosis of glaucoma and prescription of drug Timoptic in July, 1980, in action for medical malpractice against physician, claiming he discovered source of injury in November, 1984, malpractice action was time barred by this section because complaint did not allege diagnosis or prescription of Timoptic after July, 1980. Cornell v. Merck & Co., 87 Or App 373, 742 P2d 667 (1987)

 

      Action by plaintiff-tenant against landlord for injuries suffered in fall from common stairway outside apartment building contained common law claim independent of rental agreement and was timely when filed under two-year limitation period of this section. Jones v. Bierek, 306 Or 42, 755 P2d 698 (1988)

 

      Two-year statute of limitations began to run when plaintiff’s attorney wrote letter to defendant that demonstrated plaintiff had knowledge or reason to know that plaintiff had claim against defendant. McNeely v. Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992), Sup Ct review denied

 

      Where plaintiff noticed loss of feeling in left arm after procedure performed in 1987 and was assured by defendant loss of feeling was transitory complication that could last from six months to two years, trial court erred in concluding, as matter of law, malpractice action in 1990 was time barred. Gaston v. Parsons, 117 Or App 555, 844 P2d 941 (1993), aff’d 318 Or 247, 864 P2d 1319 (1994)

 

      Provision of prepared medical product does not constitute medical treatment of recipient. Doe v. American Red Cross, 128 Or App 38, 874 P2d 828 (1994), aff’d 322 Or 502, 910 P2d 364 (1996)

 

      “Injury” consists of harm, causation and tortious conduct. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994)

 

      Five-year repose period for medical malpractice actions does not violate section 10 or 20, Article I of Oregon Constitution. Barke v. Maeyens, 176 Or App 471, 31 P3d 1133 (2001), Sup Ct review denied

 

      Where person dies while having right to bring action for medical malpractice, time limit for personal representative to bring personal injury suit on behalf of estate is governed by ORS 30.075 instead of ORS 12.190. Giulietti v. Oncology Associates of Oregon, 178 Or App 260, 36 P3d 510 (2001)

 

Injury to the person or rights of another, not on contract and not enumerated in this chapter

 

      An action against the insurer under an uninsured motorist clause in a policy is governed by the contract, not the tort, statute. Turlay v. Farmers Ins. Exch., 259 Or 612, 488 P2d 406 (1971)

 

      This section does not apply to a suit for reformation. Woodriff v. Ashcraft, 263 Or 547, 503 P2d 472 (1972)

 

      Two-year limitations period is applicable to actions for legal malpractice. U.S. National Bank v. Davies, 274 Or 663, 548 P2d 966 (1976)

 

      The statute of limitations is a bar to a counterclaim in the nature of a setoff if the claim would be barred if asserted in an independent action. Jewell v. Compton, 277 Or 93, 559 P2d 874 (1977)

 

      Actions for federal civil rights violations are subject to limitation applicable to liability created by statute, not to limitation applicable to tort actions. Clark v. Musick, 623 F2d 89 (1981); Plummer v. Western International Hotels, 656 F2d 502 (1981)

 

      Product liability action brought pursuant to ORS 30.905 is “an action mentioned” in this section. Kearney v. Montgomery Ward & Co., 55 Or App 641, 639 P2d 682 (1982)

 

      Where action for damages by purchaser against builder-seller of house was for amounts necessary to remedy defects in construction of house, limitation period of this section was not applicable because either the action arose on contract or injuries were to interest of “another” in real property which is an action enumerated in ORS 12.080 (3). Beveridge v. King, 292 Or 771, 643 P2d 332 (1982)

 

      Action by architectural firm for alleged copyright infringement based on copying and use of plans and drawings for migrant labor housing was governed by this section, two-year tort statute of limitations. Mention v. Gessell, 714 F2d 87 (1983)

 

      In action for employment discrimination under 42 U.S.C. 1981, controlling limitation period was that of ORS 12.080, not that of this section. Wrighten v. Metropolitan Hospitals, Inc., 726 F2d 1346 (1984)

 

      Where relationship is between contracting parties and claim alleges negligent performance of contract, action must be brought as contract claim unless independent standard of care is established. Marinelli v. Ford Motor Co., 72 Or App 268, 696 P2d 1 (1985), Sup Ct review denied; Georgetown Realty v. The Home Insurance Company, 313 Or 97, 831 P2d 7 (1992)

 

Action at law based on fraud or deceit

 

      In a federal court action for fraud or misrepresentation under S.E.C. Rule 10b-5, the two-year statute of limitations set by this statute shall govern. Hoffert v. E.F. Hinkle & Co., Inc., 56 FRD 395 (1972); Winkelman v. Blyth and Co., 394 F Supp 994 (1973), aff’d 518 F2d 531; Williams v. Sinclair, 529 F2d 1383 (1975)

 

      The provision as to “discovery” of the fraud means from the time the fraud was known or could have been discovered through the exercise of reasonable care. Winkelman v. Blyth and Co., 394 F Supp 994 (1973), aff’d 518 F2d 531

 

      Action to recover damages for conspiracy and fraud in controlling of appraisal values of property was barred where plaintiffs had knowledge of alleged fraud nearly five years prior to bringing action. Compton v. Oregon State Hwy. Comm. et al, 31 Or App 919, 571 P2d 1271 (1977), Sup Ct review denied

 

      A summary judgment is inappropriate where a disputed issue of fact exists as to diligence in the discovery of fraud so as to commence the limitations period. Forest Grove Brick Works v. Strickland, 277 Or 81, 559 P2d 502 (1977)

 

      In fraud action arising out of remodeling of plaintiff’s house by defendant contractor, evidence disclosed as matter of law that plaintiff, in exercise of reasonable care, should have discovered carpenters’ and laborers’ wages had not been paid as represented within time period relevant under this section. Mathies v. Hoeck, 284 Or 539, 588 P2d 1 (1978)

 

      Where pleadings disclosed that action was commenced more than two years after alleged fraud was committed, plaintiff was required to negate lack of diligence on his part in discovering fraud and to set forth reasons why it was not earlier discovered. Kinyon v. Cardon, 69 Or App 546, 686 P2d 1048 (1984), Sup Ct review denied

 

      Where period of limitation for fraud begins to run when plaintiff knew or through reasonable care should have known of alleged fraud and plaintiff knew by early 1982 that defendant was not respecting alleged promise but did not file claim until 1985, statute of limitations had expired. Estey & Associates, Ins. v. McCullock Corp., 663 F Supp 167 (1986)

 

When statute commences to run

 

      Cause of action for legal malpractice accrues at time client becomes aware that harm incurred by adverse resolution of legal matter was caused by attorney. U.S. National Bank v. Davies, 274 Or 663, 548 P2d 966 (1976); Niedermeyer v. Dusenbery, 275 Or 83, 549 P2d 1111 (1976); Barnard v. Lannan, 112 Or App 625, 829 P2d 723 (1992); Allen v. Lawrence, 137 Or App 181, 903 P2d 919 (1995), Sup Ct review denied

 

      Statute of limitations on claim for negligence causing occupational disease begins to run when reasonably prudent person should know that he has condition for which action is brought and should be able to identify its cause. Schiele v. Hobart Corp., 284 Or 483, 587 P2d 1010 (1978)

 

      Where three years prior to bringing malpractice action against attorney and real estate broker, plaintiff litigated worth of his assets during marriage dissolution proceedings and testified at that time that his investment losses were attributable to “bad advice” from attorney and realtor, malpractice action was barred by two-year statute of limitations under this section. Melgard v. Hanna, 45 Or App 133, 607 P2d 795 (1980)

 

      Statute commences running upon discovery that plaintiff has some cause of action, not upon discovery of true extent of damage. Hoffman v. Rockey, 55 Or App 658, 639 P2d 1284 (1982), Sup Ct review denied; Gannon v. Rogue Valley Medical Center, 92 Or App 314, 758 P2d 873 (1988), Sup Ct review denied

 

      In action for alleged occupational disease (asbestosis), it was error for trial court to conclude as matter of law that action accrued under this section and ORS 12.010 in December 1975 where medical report in October indicated plaintiff’s condition “should improve without medication” and record amply reflected possibility plaintiff did not know what was causing his illness. Lundy v. Union Carbide Corp., 695 F2d 394 (1982)

 

      Claim for occupational disease accrues when reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition. Lundy v. Union Carbide Corp., 695 F2d 394 (1982), citing Schiele v. Hobart, 284 Or 483, 587 P2d 1010 (1979)

 

      Cause of action against realtor for negligent valuation accrued when plaintiff discovered actual market value of land, not when she was forced to convey property at loss pursuant to Court of Appeals decision. Jaquith v. Ferris, 297 Or 783, 687 P2d 1083 (1984)

 

      Statute of limitations in legal malpractice case does not begin to run until final disposition of case in which attorney allegedly gave bad advice; action commenced within two years of Supreme Court’s decision but more than two years after any other significant action in case was not barred. Fliegel v. Davis, 73 Or App 546, 699 P2d 674 (1985), Sup Ct review denied

 

      Statute of limitations for tort of intentional interference with contractual relationship does not depend on date of discovery of interference but rather when damages accrued. Cramer v. Stonebridge Inn, 77 Or App 407, 713 P2d 645 (1986)

 

      Where plaintiff insureds sued their insurer, pleading that insurer’s negligence in handling claim against them caused them loss by way of incurred attorney fees and excess liability, plaintiffs’ cause of action accrued when they were harmed and suffered resulting damages through expenditure of legal fees to defend claim against them, not when they later paid claimant in settlement of the claim. Bollam v. Fireman’s Fund Ins. Co., 302 Or 343, 730 P2d 542 (1986)

 

      Where FDIC brought action against former officers and directors of three banks which merged into bank later declared insolvent, claim limitation period found to have expired under federal law not state law. FDIC v. Former Officers and Dir. of Metro. Bank, 705 F Supp 505 (D. Or. 1987)

 

      In beneficiary’s claim that trustee negligently administered trust’s assets, statute of limitations does not begin to run until beneficiary knows, or reasonably should know, that he was damaged by trustee’s alleged negligence. Condon v. Bank of California, 92 Or App 691, 759 P2d 1137 (1988)

 

      In order to be misleading, for purpose of subsection (4) of this section, representation must have some relationship to plaintiff’s knowledge or awareness of facts constituting claim. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

 

      Although innocent contemporaneous representations which relate in particular ways to gravamen of claim cannot be “misleading representations” under subsection (4) of this section, contemporaneousness ends when maker of representation knows or has reason to know information which he did not have at time of negligently performed procedure or its immediate aftermath and which reasonably indicates that something in performance of procedure, or related to it, went wrong. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

 

      Filing is complete when papers are received by clerk and complaint by mail was timely filed where last day for filing would have been Saturday and Monday was legal holiday. Cooper v. City of Ashland, 871 F2d 104 (9th Cir. 1989)

 

      When claim characterized as false light alleges facts that also constitute claim for defamation, claim must be filed within period for bringing defamation claim under ORS 12.120, not this provision. Magenis v. Fisher Broadcasting, Inc., 103 Or App 555, 798 P2d 1106 (1990)

 

      In action for professional negligence brought by former criminal defendant against lawyer, statute of limitations does not begin to run until criminal defendant has been exonerated. Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993)

 

      Knowledge of violation of informed consent right did not mean patient knew, or with reasonable care should have known, of cause of action for negligence in performance of surgery. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994)

 

      Whether plaintiff should have known of tortious conduct depends on what plaintiff would have actually discovered had inquiry been conducted. Doe v. American Red Cross, 322 Or 502, 910 P2d 364 (1996)

 

      Plaintiff should, with reasonable care, discover injury at time information available to plaintiff discloses existence of actionable injury. Greene v. Legacy Emanuel Hospital, 335 Or 115, 60 P3d 535 (2002)

 

      Where state did not appeal decision exonerating defendant, statute of limitations on legal malpractice claim began running upon date exoneration became certain due to expiration of time for state to appeal. Abbott v. DeKalb, 221 Or App 339, 190 P3d 413 (2008)

 

Pleading and effect of appeal

 

      When the pleadings disclose that the action was not commenced within two years after the alleged fraud was consummated, it is necessary for plaintiff to negate lack of diligence in the discovery of the fraud and to set forth the reasons why there was not an earlier discovery of the fraud. Salem Sand & Gravel v. Salem, 260 Or 630, 492 P2d 271 (1971)

 

      Motion to dismiss for reason that pleading shows action has not been commenced within time limited by statute is limited to what appears on face of pleading and, in considering motions to dismiss, court looks not to superseded original complaint but only facts alleged in amended complaint. O’Gara v. Kaufman, 81 Or App 499, 726 P2d 403 (1986)

 

Action upon a statute for forfeiture or penalty to the state or county

 

      An action to recover public assistance unlawfully obtained brought pursuant to ORS 411.620 was not “an action upon a statute for forfeiture or penalty to the state or county” and limitation period of this section did not apply to bar it. Adult and Family Services Div. v. Scoggins, 49 Or App 769, 620 P2d 962 (1980)

 

Battery

 

      For action for battery, statute begins to run when person discovers that touching occurred and recognizes that touching was offensive. Whalen v. American Medical Response Northwest, 256 Or App 278, 300 P3d 247 (2013)

 

LAW REVIEW CITATIONS: 52 OLR 91-104 (1972); 73 OLR 753 (1994); 50 WLR 195 (2014)

 

      12.115

 

NOTES OF DECISIONS

 

      This statute covers products liability cases as well as those of negligence. Johnson v. Star Machinery Co., 270 Or 694, 530 P2d 53 (1974)

 

      Where tractor driver filed products liability action against manufacturer more than ten years following manufacture and sale of tractor, action was barred by this section. Cavan v. General Motors, 280 Or 455, 571 P2d 1249 (1977)

 

      This section, a statute of ultimate repose for negligent injuries, was not tolled by plaintiff’s insanity under ORS 12.160. DeLay v. Marathon LeTourneau Sales Co., 291 Or 310, 630 P2d 836 (1981)

 

      Subsection (1), statute of ultimate repose, applies to suit based on alleged legal malpractice. Withers v. Milbank, 67 Or App 475, 678 P2d 770 (1984); Davis v. Somers, 140 Or App 567, 915 P2d 1047 (1996), Sup Ct review denied

 

      Plain language of this section indicates that it is not subject to ORS 12.155. Davis v. Blanchard, 84 Or App 99, 733 P2d 460 (1987)

 

      Where alleged failure to warn or instruct regarding product occurs after time of purchase, claim for damages is subject to this section instead of ORS 30.905 limitation period for product liability claims. Erickson Air-Crane v. United Tech. Corp., 303 Or 281, 735 P2d 614 (1987), as modified by 303 Or 452, 736 P2d 1023 (1987)

 

      Equitable estoppel is not available to avoid time limitation of this section because to hold otherwise would thwart legislature’s intent to provide absolute cutoff date for bringing actions to which statute applies. Beals v. Breeden Bros., Inc., 113 Or App 566, 833 P2d 348 (1992), Sup Ct review denied

 

      Discovery rule of federal Superfund Amendments and Reauthorization Act preempts state statute of repose with regard to state law action based on release of hazardous substances. Buggsi, Inc. v. Chevron U.S.A., Inc., 857 F Supp 1427 (D. Or. 1994)

 

LAW REVIEW CITATIONS: 52 OLR 91-104 (1972); 54 OLR 480 (1975)

 

      12.117

 

NOTES OF DECISIONS

 

      Statute, as amended in 1991, applies to action based on child abuse filed after October 3, 1989, even if action was previously barred by ORS 12.110 and 12.160 and such application does not violate Article III, section 1 of Oregon Constitution. A.K.H. v. R.C.T., 312 Or 497, 822 P2d 135 (1991)

 

      “Knowingly” does not prevent allegation that defendant allowed, permitted or encouraged child abuse through negligence. Lourim v. Swensen, 147 Or App 425, 936 P2d 1011 (1997), rev’d on other grounds, 328 Or 380, 977 P2d 1157 (1999)

 

      “Knowingly” refers to actual knowledge only, not to constructive knowledge. Lourim v. Swensen, 147 Or App 425, 936 P2d 1011 (1997), rev’d on other grounds, 328 Or 380, 977 P2d 1157 (1999)

 

      Action alleging liability for behavior preparatory to abuse is “based on conduct that constitutes child abuse.” Fearing v. Bucher, 328 Or 367, 977 P2d 1163 (1999); Lourim v. Swensen, 328 Or 380, 977 P2d 1157 (1999)

 

      “Sexual exploitation” refers to conduct that uses child in sexual way for personal gratification or benefit and that personally involves child. Schmidt v. Mt. Angel Abbey, 347 Or 389, 223 P3d 399 (2009)

 

      “Cruelty to child” refers to (1) acts that are performed with specific intent of injuring or harming child and that are capable of producing those results and (2) acts that demonstrate willful and wanton disregard for welfare of child from which one can infer willingness to injure child. Schmidt v. Mt. Angel Abbey, 347 Or 389, 223 P3d 399 (2009)

 

      This provision does not apply to federal action brought by child abuse victim. Bonneau v. Centennial School District No. 28J, 666 F3d 577 (9th Cir. 2012)

 

      Extended statute of limitations created by 2009 amendment applies retroactively to all causes of action for child abuse for which judgment was not entered before 2009 amendment. Doe v. Silverman, 287 Or App 247, 401 P3d 793 (2017), Sup Ct review denied

 

LAW REVIEW CITATIONS: 85 OLR 481 (2006)

 

      12.120

 

NOTES OF DECISIONS

 

      Applicable statute of limitations for slander of title. Shenefield v. Axtell, 274 Or 279, 545 P2d 876 (1976)

 

      An action for negligent injury to reputation is an action for defamation subject to a one-year statute of limitations. Coe v. Statesman-Journal Co., 277 Or 117, 560 P2d 254 (1977)

 

      Where allegedly libelous memorandum was confidential in nature and initial publication was not of type plaintiff would be presumed to know about, limitation period of this section began to run at time plaintiff discovered existence of memorandum. White v. Gurnsey, 48 Or App 931, 618 P2d 975 (1980)

 

      Time of discovery rule, under which running of Statute of Limitations is tolled until plaintiff knows or reasonably should know of claim against defendant, did not apply to action for defamations made in public meeting. Workman v. Rajneesh Foundation International, 84 Or App 226, 733 P2d 908 (1987), Sup Ct review denied

 

      When claim characterized as false light alleges facts that also constitute claim for defamation, claim must be filed within period for bringing defamation claim under this provision, not ORS 12.110. Magenis v. Fisher Broadcasting, Inc., 103 Or App 555, 798 P2d 1106 (1990)

 

      12.125

 

NOTES OF DECISIONS

 

      This section governs only landlord and tenant disputes concerning dwelling unit as defined in [former] ORS 91.705. Vollertsen v. Lamb, 302 Or 489, 732 P2d 486 (1987)

 

      Action by plaintiff-tenant against landlord for injuries suffered in fall from common stairway outside apartment building contained common law claim independent of rental agreement and was timely when filed under two-year limitation period of ORS 12.110. Jones v. Bierek, 306 Or 42, 755 P2d 698 (1988)

 

      Action having nexus to rental agreement or landlord-tenant relationship, but not directly authorized by ORS chapter 90, is not subject to limitation of this section. Waldner v. Stephens, 345 Or 526, 200 P3d 556 (2008)

 

      12.135

 

NOTES OF DECISIONS

 

      The two-year statute of limitations began to run as of the date on which the injury to the plaintiff’s property occurred rather than the date when the plaintiff discovered who actually caused the injury. Kashmir Corp. v. Barnes, 278 Or 433, 564 P2d 693 (1977)

 

      Implied warranty by builder-vendors that new houses are constructed in reasonably workmanlike manner and fit for habitation, established by Yepsen v. Burgess, 269 Or 635, 525 P2d 1019 (1974), is subject to limitations of this section. Sponseller v. Meltebeke, 280 Or 361, 570 P2d 974 (1977)

 

      Action for breach of express warranty against seller of apartments and glass company, which contracted to repair defective windows, was not barred by two year statute of limitations under this section, which contemplates tort rather than contract actions. Portland Hous. Auth. v. Ash Nat’l., 36 Or App 391, 584 P2d 776 (1978)

 

      This section was inapplicable to damage action against architect and heating contractor for financial losses resulting from defective heating system. Securities-Intermountain v. Sunset Fuel, 289 Or 243, 611 P2d 1158 (1980)

 

      Where action for damages by purchaser against builder-seller of house was for amounts necessary to remedy defects in construction of house, limitation period of this section was not applicable because action was not for bodily injury or injury to existing tangible property. Beveridge v. King, 292 Or 771, 643 P2d 332 (1982)

 

      Equitable estoppel is not available to avoid time limitation of this section because to hold otherwise would thwart legislature’s intent to provide absolute cutoff date for bringing actions to which statute applies. Beals v. Breeden Bros., Inc., 113 Or App 566, 833 P2d 348 (1992), Sup Ct review denied

 

      Ten-year statute of repose applies retroactively. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F3d 1255 (9th Cir. 1993)

 

      Where defendant acted in dual capacity of manufacturer and installer of asbestos products, limitation on actions applicable to construction, alteration and repair of real property was superseded by ORS 30.907 limitation on asbestos product liability. Purcell v. Asbestos Corp., Ltd., 153 Or App 415, 959 P2d 89 (1998), modified 155 Or App 1, 963 P2d 729 (1998), Sup Ct review denied

 

      Where contractor builds own house, lack of “contractee” prevents application of this section as statute of ultimate repose for construction defect. Lozano v. Schlesinger, 191 Or App 400, 84 P3d 816 (2004)

 

      “Contractee” is person, usually owner or developer, for whom improvement is constructed, altered or repaired. Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 254 Or App 24, 295 P3d 62 (2012), aff’d 355 Or 286, 325 P3d 730 (2014)

 

      Repose period runs from date on which general contractor transfers control of completed improvement to contractee. Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 254 Or App 24, 295 P3d 62 (2012), aff’d 355 Or 286, 325 P3d 730 (2014)

 

      In absence of written acceptance, substantial completion occurs when contractee accepts construction that actually has been completed. PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 294 P3d 536 (2013), aff’d 355 Or 267, 323 P3d 961 (2014)

 

      This provision applies to indemnity actions that ultimately derive from indemnitor’s construction-related activities. PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 294 P3d 536 (2013)

 

      Where plaintiff, who purchased home from general contractor and did not have construction contract but instead had only purchase contract, brought negligence action against defendant, 10 year statute of limitations in this section does not apply. Shell v. Schollander Companies, Inc., 265 Or App 624, 336 P3d 569 (2014), aff’d 358 Or 552, 369 P3d 1101 (2016)

 

      Completion notice issued pursuant to ORS 87.045 does not establish that owner accepts construction as complete for occupation and does not establish date on which 10-year statute of ultimate repose begins to run. PIH Beaverton, LLC v. Super One, Inc., 355 Or 267, 323 P3d 961 (2014)

 

LAW REVIEW CITATIONS: 52 OLR 91-104 (1972); 54 OLR 466 (1975)

 

      12.140

 

NOTES OF DECISIONS

 

      This is the analogous statute of limitations to apply to a suit for reformation. Woodriff v. Ashcraft, 263 Or 547, 503 P2d 472 (1972)

 

      When declaratory relief is sought as an alternative to other appropriate and otherwise available relief, the relevant limitations period for the declaratory judgment suit should be based on that of the underlying grounds for relief. Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976)

 

      Enforcement of equitable restraining orders or injunctions is presumed to not violate doctrine of laches if commenced during two year period applicable to criminal contempt proceedings. Oregon State Bar v. Wright, 309 Or 37, 785 P2d 340 (1990)

 

LAW REVIEW CITATIONS: 52 OLR 91-104 (1972)

 

      12.150

 

NOTES OF DECISIONS

 

      This section did not toll limitation period of ORS 12.110 where defendant foreign corporation could have been served under [former] ORS 57.700. Santos v. The Flxible Co. Inc., 41 Or App 89, 597 P2d 373 (1979)

 

      This section did not toll limitation period in ORS 12.020 where defendant foreign corporation could have been served under long arm statute. Bancorp Leasing and Financial Corp. v. Agusta Aviation Corporation, 813 F2d 272 (1987)

 

      Statute of limitations was tolled when defendant left Oregon and resided out of state after cause of action accrued and fact that defendant may have been amenable to service is not exception to tolling. Gary M. Buford and Associates, Inc. v. Guillory, 98 Or App 691, 780 P2d 783 (1989), Sup Ct review denied. But see Wright v. Osborne, 151 Or App 466, 949 P2d 321 (1997), Sup Ct review denied

 

      Limitation period is not tolled by absence of defendant from state or by concealment where substituted service on state agency is available. Wright v. Osborne, 151 Or App 466, 949 P2d 321 (1997), Sup Ct review denied

 

      Where plaintiff filed action against defendant more than six years after claims accrued but defendant moved out of state after claims accrued and before plaintiff filed action, ORCP 4 permits plaintiff to serve defendant out of state for purposes of litigating in-state claims and plaintiff’s action was timely filed. Knappenberger v. Davis-Stanton, 271 Or App 14, 351 P3d 54 (2015)

 

      12.155

 

NOTES OF DECISIONS

 

      Advance payment by an insurer for property damage, made without giving notice of the expiration date for personal injury claim arising out of the same accident, suspends the operation of the statute of limitations as to the personal injury claim. Duncan v. Dubin, 276 Or 631, 556 P2d 105 (1976)

 

      “Statute of limitations” does not include contractually limited period for bringing action on insurance policy required by [former] ORS 743.660. Ben Rybke Co. v. Royal Globe Ins. Co., 293 Or 513, 651 P2d 138 (1982)

 

      Insurer’s advance payments and waiver of statute of limitations did not create duty to give notice of end of waiver period and was not enough to lull plaintiff into false sense of security so as to estop defense of statute of limitations. Johnson v. Kentner, 71 Or App 61, 691 P2d 499 (1984), Sup Ct review denied

 

      Legislative purpose of protecting injured persons from being lulled into false sense of security by advance payment contemplates notice of limitations period only to person for whose direct benefit the advance payment is made. Sheppard v. Weekly, 72 Or App 86, 695 P2d 53 (1985)

 

      This section, which requires person making advance payment before determining tort liability to give written notice of when applicable statute of limitations will run, is not applicable to Personal Injury Protection payments made under [former] ORS 743.800. Smith v. Riker, 88 Or App 579, 746 P2d 247 (1987), Sup Ct review denied

 

      Where tortfeasor’s insurance company, after making advance payment to claimant, fails to give claimant notice of expiration date of limitation period pursuant to this section, but where claimant is represented by counsel and files suit against insurer within applicable limitation period, this section’s notice and tolling provisions do not apply because no one failed to act by being lulled into false belief that statute of limitations would not run. Dotson v. Smith, 307 Or 132, 764 P2d 540 (1988)

 

      Where insurer made advance payment to plaintiff without giving notice of date on which statute of limitations would run, limitations period was tolled. Pipkin v. Zimmer, 113 Or App 737, 833 P2d 1350 (1992), Sup Ct review denied

 

      Where insurer of defendant made advance payment to plaintiff but did not provide plaintiff with notice of when statute of limitations expires, statute of limitations is tolled from day plaintiff received advance payment until day action is commenced. Baker v. Kennedy, 317 Or 372, 856 P2d 314 (1993)

 

      Advance payment does not toll statute of limitations outside setting of third-party claims against insurers. Minisce v. Thompson, 149 Or App 746, 945 P2d 582 (1997)

 

      Where there are multiple potential defendants, tolling of statute of limitations between time of advance payment and time of giving notice of expiration date of applicable limitation period is defendant-specific. Blanton v. Beiswenger, 195 Or App 335, 97 P3d 1247 (2004)

 

      Person making advance payment need not be insurer. Hamilton v. Paynter, 342 Or 48, 149 P3d 131 (2006)

 

      “Person entitled to recover damages” means person who has legal grounds to bring action to recover damages for injury or destruction, not person who has established legal right to judgment for such damages. Snyder v. Espino-Brown, 350 Or 141, 252 P3d 318 (2011)

 

      12.160

 

NOTES OF DECISIONS

 

      This section is valid under both the Equal Protection Clause of the United States Constitution and under Ore. Const., Art. I, §20. Shaw v. Zabel, 267 Or 557, 517 P2d 1187 (1974)

 

      Existence of guardianship or conservatorship over an estate does not, in itself, toll statute of limitations applicable to causes of action of protected persons. Guyot v. Multnomah County, 51 Or App 373, 625 P2d 1344 (1981)

 

      ORS 12.115 (1), a statute of ultimate repose for negligent injuries, was not tolled by plaintiff’s insanity under this section. DeLay v. Marathon LeTourneau Sales Co., 291 Or 310, 630 P2d 836 (1981)

 

      This section applies to toll statute of limitations during plaintiff’s minority where claim is against public body or public employe. Bradford v. Davis, 290 Or 855, 626 P2d 1376 (1981)

 

      This section tolled running of statute of limitations in product liability action (ORS 30.905) during plaintiff’s minority. Kearney v. Montgomery Ward & Co., 55 Or App 641, 639 P2d 682 (1982)

 

      Statute of limitations for actions in tort for personal injuries begins to run when plaintiff knows he has been injured even though he does not then know the full extent of the injuries, so action commenced more that seven years after occurrence of original injury was not timely. Guiley v. Hammaker, 55 Or App 921, 640 P2d 664 (1982), Sup Ct review denied

 

      Plaintiff’s disability because of imprisonment ceased when he was paroled and his reincarceration 47 days later did not resume tolling of statute. Boag v. Chief of Police, City of Portland, 669 F2d 587 (1982)

 

      Section tolling statute of limitations for prisoners was not repealed by implication by enactment of ORS 137.275, eliminating “civil death or disability” for person convicted of felony. Harris v. Craig, 299 Or 12, 697 P2d 189 (1985)

 

      Where minor child, allegedly injured by negligence of public body, had not yet filed negligence claim but sought declaratory relief to determine whether potential tort claim was time-barred under ORS 30.275 (8) or whether minor’s disability pursuant to this section suspended Statute of Limitations, complaint seeking declaratory relief did not present justiciable controversy. Lawson v. Coos Co. Sch. Dist. No. 13, 81 Or App 358, 724 P2d 943 (1986)

 

      Five-year extension to limitations period granted to minors under this section is not lost if conservator is appointed for minor or if conservator commences personal injury action on behalf of minor. Luchini v. Harsany, 98 Or App 217, 779 P2d 1053 (1989), Sup Ct review denied

 

      Mental retardation does not, per se, fall outside scope of “insane” as used in this section; but for retardation to toll statute in particular case it must be shown that retardation actually barred sufferer from comprehending rights that person is otherwise bound to know. Roberts v. Drew, 105 Or App 251, 804 P2d 503 (1991)

 

      Disability preventing person from bringing action for defective product tolls two-year personal injury statute of limitations under ORS 30.905, but does not toll eight-year statute of ultimate repose. Simonsen v. Ford Motor Co., 196 Or App 460, 102 P3d 710 (2004), Sup Ct review denied

      Where infant plaintiff’s cause of action is to recover damages for an injury resulting from intestinal surgery on plaintiff, plaintiff’s cause of action is one “mentioned” in ORS 12.110 (4), and the time limitation in the 2005 version of this section applies to plaintiff’s action even though it is one brought against a public body and ORS 30.275 would otherwise apply. Smith v. OHSU Hospital and Clinic, 272 Or App 473, 356 P3d 142 (2015)

 

LAW REVIEW CITATIONS: 26 WLR 281 (1990); 50 WLR 195 (2014)

 

      12.190

 

NOTES OF DECISIONS

 

      Sixty-day service period following filing date can extend “time limited for commencement” of action beyond statute of limitations period. Mitchell v. Harris, 123 Or App 424, 859 P2d 1196 (1993)

 

      Where small estate was distributed to claiming successor without appointment of personal representative, service on claiming successor could not substitute for service on personal representative. Wheeler v. Williams, 136 Or App 1, 900 P2d 1076 (1995), Sup Ct review denied

 

      Where person dies while having right to bring action for personal injury, time limit for personal representative to bring personal injury suit on behalf of estate is governed by ORS 30.075 instead of this section. Giulietti v. Oncology Associates of Oregon, 178 Or App 260, 36 P3d 510 (2001)

 

      12.210

 

NOTES OF DECISIONS

 

      This section does not toll statute of limitations for debtor during pendency of bankruptcy case. R.A. Hatch Co. v. American Ins. Co., 728 F. Supp. 1499 (D. Or. 1990)

 

      12.220

 

NOTES OF DECISIONS

 

In general

 

      Action brought in federal court and dismissed for lack of diversity jurisdiction was within saving clause of this section. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

 

      The words “upon the trial” in this section include the trial of questions of law as well as of fact. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

 

      Limitation period on insurance claims required by statute to be included in policy is, in effect, a statutory limitation. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

 

      This section does not apply to action which has been dismissed after trial upon merits. Tikka v. Martin, 271 Or 287, 532 P2d 18 (1975)

 

      When trial court dismissed previous claims for dilatorious prosecution, one-year extension of this section did not save subsequent action from being barred by res judicata. Te-Ta-Ma Truth Foundation v. Vaughan, 114 Or App 448, 835 P2d 938 (1992)

 

      This section did not extend time for bringing new action based on misrepresentation theory when previous action was based on contract and estoppel. McNeely v. Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992), Sup Ct review denied

 

Dismissal

 

      Dismissal for want of jurisdiction of the cause, whether requiring determination of issues of law alone or of issues of both law and fact, is dismissal within meaning of this section. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

 

      Voluntary nonsuit granted before commencement of trial is not dismissal within meaning of this section. Vandermeer v. Pacific Northwest Dev. Corp., 284 Or 517, 587 P2d 98 (1978)

 

      Party could refile case which was originally brought within proper period and dismissed without reaching merits because there was another action pending on same cause in federal court where dismissal was upheld on ground federal court lacked jurisdiction of that cause and refiling occurred within one year of effective date of decision on appeal. Beetham v. Georgia-Pacific, 87 Or App 592, 743 P2d 755 (1987)

 

      For dismissal of inactive case to have additional consequence of preventing refiling of action because of failure to prosecute, dismissal procedure must follow ORCP 54B (3). Moore v. Ball, Janik & Novack, 120 Or App 466, 852 P2d 937 (1993), Sup Ct review denied

 

      Dismissal on grounds not adjudicating merits means dismissal on grounds not giving rise to claim preclusion. Ram Technical Services, Inc. v. Koresko, 346 Or 215, 208 P3d 950 (2009)

 

      For purpose of determining date of filing of new action, judgment, dismissing original action is trial court’s original judgment dismissing action before appeal. Belinskey v. Clooten, 237 Or App 106, 239 P3d 251 (2010), Sup Ct review denied

 

Reversal on appeal

 

      Reversal for new trial is not within purview of this section. Vandermeer v. Pacific Northwest Dev. Corp., 284 Or 517, 587 P2d 98 (1978)

 

      To qualify for refiling after dismissal at trial or on appeal, trial proceeding must have been original action rather than court review of action by different tribunal. U.S. West Communications, Inc. v. Eachus, 124 Or App 325, 862 P2d 102 (1993)

 

      12.230

 

NOTES OF DECISIONS

 

      To act as revival of legal obligation, payment made after expiration of limitation period must be made and intended as unqualified payment on obligation with intention to acknowledge balance then due. Culver v. Andres, 26 Or App 809, 554 P2d 541 (1976)

 

      12.240

 

NOTES OF DECISIONS

 

      Part payment on an account after accrual of last liability had the effect of tolling the statute of limitations. Northwest Foundry & Furnace Co. v. Willamette Mfg. & Supply Co., 268 Or 343, 521 P2d 545 (1974)

 

      Last payment acts to commence running of limitation period only if made prior to time limitation period has completely run. Culver v. Andres, 26 Or App 809, 554 P2d 541 (1976)

 

      Recipient’s application of payment to different purpose does not change nature of payment “made” on contract. Keppinger v. Hanson Crushing, Inc., 161 Or App 424, 983 P2d 1084 (1999)

 

      12.250

 

NOTES OF DECISIONS

 

      There is no distinction between governmental and proprietary functions of state as landowner, insofar as statute of limitations is concerned. State ex rel Highway Division v. Rosanbalm, 31 Or App 717, 571 P2d 537 (1977), Sup Ct review denied

 

      ORS 12.250 and 275.027 are properly viewed not as limiting ability of adverse possessors to acquire title to county lands, but as removing impediment to county’s ability to defend its record title to real property. Coos County v. State of Oregon, 303 Or 173, 734 P2d 1348 (1987)

 

      Reference to limitations prescribed in chapter does not change government’s general immunity from application of limitation provisions both within and without chapter. City of Medford v. Budge-McHugh Supply Co., 91 Or App 213, 754 P2d 607 (1988), Sup Ct review denied

 

      Reference to “other public corporation therein” extends exemption for state and counties to also include irrigation districts and other corporations formed for public purpose or benefit. Shasta View Irrigation District v. Amoco Chemicals Corp., 329 Or 151, 986 P2d 536 (1999)

 

      12.270

 

NOTES OF DECISIONS

 

      Resident of property surrounded by proposed annexation is not precluded from timely raising most challenges to encircling annexation. Costco Wholesale Corp. v. City of Beaverton, 206 Or App 380, 136 P3d 1219 (2006), aff’d 343 Or 18, 161 P3d 926 (2007)

 

      12.410 to 12.480

LAW REVIEW CITATIONS: 71 OLR 319 (1992)

 

      12.430

 

NOTES OF DECISIONS

 

      Dismissal of action based on another state’s statute of limitations does not prevent filing suit in this state. Al Disdero Lumber Co. v. Dick W. Ebeling, Inc., 95 Or App 671, 770 P2d 945 (1989), Sup Ct review denied

 

      Correct determinant of applicable statute of limitations is state providing substantive law basis for claim, not state having most substantial interest. Cropp v. Interstate Distributor Co., 129 Or App 510, 880 P2d 464 (1994), Sup Ct review denied