Chapter 031

 

      31.150

 

NOTES OF DECISIONS

 

      Requirement that special motion to strike be treated as motion to dismiss under ORCP 21A incorporates requirement that motion be filed before responsive pleading. Horton v. Western Protector Insurance Co., 217 Or App 443, 176 P3d 419 (2008)

 

      Appellate review of denial of special motion to strike is available only if motion is limited to purely legal issues and disputed or undisputed facts are immaterial. Staten v. Steel, 222 Or App 17, 191 P3d 778 (2008), Sup Ct review denied

 

      Where plaintiffs requested that defendant television news broadcaster not air footage showing plaintiffs’ likenesses to protect plaintiffs’ safety and defendant did air footage, plaintiffs’ claims arose out of defendant’s conduct in exercising freedom of speech and plaintiffs’ claims were subject to special motion to strike under this section because plaintiffs were unable to demonstrate that plaintiffs were likely to prevail on claims of negligence, negligent infliction of emotional distress or intentional infliction of emotional distress. Mullen v. Meredith Corporation, 271 Or App 698, 353 P3d 598 (2015)

 

      Where plaintiff’s evidence showed that commissioners of defendant county communicated via electronic mail but quorum of commissioners did not decide or deliberate towards decision, reasonable trier of fact could not find that plaintiff met burden of production under this section that requires plaintiff to establish probability of prevailing on claim for which defendant establishes prima facie case that arose from protected statements, documents or conduct. Handy v. Lane County, 360 Or 605, 385 P3d 1016 (2016)

 

      31.152

 

NOTES OF DECISIONS

 

      Filing of special motion to strike is subject to both timing requirement of this section and requirement that motion be filed before responsive pleading. Horton v. Western Protector Insurance Co., 217 Or App 443, 176 P3d 419 (2008)

 

      31.205 to 31.220

(formerly 30.155 to 30.175)

 

LAW REVIEW CITATIONS: 65 OLR 35, 54 (1986)

 

      31.210

(formerly 30.160)

 

NOTES OF DECISIONS

 

      Failure to allege that retraction had been requested of magazine publishers and refused by them, as required by this section, rendered complaint insufficient to constitute cause of action for general damages for libel. Davidson v. Rogers, 281 Or 219, 574 P2d 624 (1978)

 

      Condition of this section denying general damages unless retraction is demanded but not published does not violate Constitution, Article I, Section 10, which provides that every man shall have remedy by due course of law for injury done him. Davidson v. Rogers, 281 Or 219, 574 P2d 624 (1978)

 

      This section does not apply in an action against a person not associated with the broadcast or print media. Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979)

 

      When claim characterized as false light alleges facts that also constitute claim for defamation, plaintiff must seek retraction under this provision from defendant as prerequisite to bringing false light claim. Magenis v. Fisher Broadcasting, Inc., 103 Or App 555, 798 P2d 1106 (1990)

 

LAW REVIEW CITATIONS: 19 WLR 677 (1983)

 

      31.215

(formerly 30.165)

 

NOTES OF DECISIONS

 

      Each publication or broadcast of statement is new occurrence of “defamatory statement.” Schenck v. Oregon Television, Inc., 146 Or App 430, 934 P2d 480 (1997)

 

      31.230

(formerly 30.895)

 

NOTES OF DECISIONS

 

      Allegation of emotional distress is sufficient to support damages element of claim. Lee v. Mitchell, 152 Or App 159, 953 P2d 414 (1998)

 

      To fit exemption for action filed and dismissed around time of running of statute of limitations, filing of action must be for sole purpose of preserving and evaluating claim. Roop v. Parker Northwest Paving Co., 194 Or App 219, 94 P3d 885 (2004), Sup Ct review denied

 

      31.250

 

LAW REVIEW CITATIONS: 43 WLR 363 (2007)

 

      31.550 to 31.565

(formerly 18.500 to 18.530)

 

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)

 

      Payment made by defendant’s insurer to plaintiffs’ car rental company prior to judgment is “advance payment” and, where made without required notice, tolls statute of limitations on plaintiffs’ personal injury action. Anais v. Dias, 70 Or App 478, 689 P2d 1011 (1984), Sup Ct review denied

 

      31.555

(formerly 18.510)

 

NOTES OF DECISIONS

 

      Because 1) insurer’s policy commits it to pay whatever its insured becomes liable to pay up to policy limits, 2) before judgment, reimbursement of PIP carrier is not in law payment of insured’s liability, and 3) amount that will be applicable to judgment may not yet be known, insurer is not entitled to pre-judgment credit for reimbursement. Kessler v. Weigandt, 68 Or App 180, 685 P2d 425 (1984), aff’d 299 Or 38, 699 P2d 183 (1985)

 

      Where it could not be determined whether jury awarded damages already compensated for by PIP payments, reduction of offset allowed for PIP payments was improper. Dougherty v. Gelco Express Corp., 79 Or App 490, 719 P2d 906 (1986)

 

      PIP payment to plaintiff does not reduce judgment where it can be determined jury did not award damages for losses compensated for by PIP payment. Brus v. Goodell, 119 Or App 74, 849 P2d 562 (1993)

 

      Where affidavit by attorney for insurer merely acknowledged propriety of reimbursement procedure but did not obligate insurer to pay specific amount, refusal by court to issue order of partial satisfaction was proper. Heintz v. Baxter, 120 Or App 603, 853 P2d 320 (1993), Sup Ct review denied

 

      Liability insurer repayment to other insurer for amount of Personal Injury Protection payment advanced by other insurer is reduction in judgment amount having priority over attorney lien on judgment. Willhite v. Biff’s Seafood Restaurant, Inc., 124 Or App 360, 862 P2d 580 (1993)

 

      Reduction of judgment by offsetting advance payments received from insurer must be done after judgment has been entered for unreduced amount of verdict. Wade v. Mahler, 167 Or App 350, 1 P3d 485 (2000), Sup Ct review denied

 

      Payments made without consideration of liability for damages are not “advance payments” triggering tolling of statute of limitations. Meoli v. Brown, 200 Or App 44, 114 P3d 507 (2005), Sup Ct review denied

 

      Statement that request to apply personal injury protection reimbursement payment “may be submitted by insurer” does not render, for purposes of this statute, requirements of ORCP 68C (4) equivocal. Medean v. Moeller, 246 Or App 717, 268 P3d 623 (2011)

 

      31.580

(formerly 18.580)

 

NOTES OF DECISIONS

 

      This section does not control entitlement to offset benefits established under ORS 734.640. Bird v. Norpac Foods, Inc., 132 Or App 349, 888 P2d 118 (1995), aff’d 325 Or 55, 934 P2d 382 (1997)

 

      Billed amounts later written off by medical services provider are collateral source benefits. White v. Jubitz Corp., 219 Or App 62, 182 P3d 215 (2008), aff’d 347 Or 212, 219 P3d 566 (2009)

 

      Medicare write-offs are federal Social Security benefits that may not reduce amount awarded claimant for incurred medical expenses. White v. Jubitz Corp., 219 Or App 62, 182 P3d 215 (2008), aff’d 347 Or 212, 219 P3d 566 (2009)

 

      Oregon Health Plan write-offs are federal Social Security benefits that may not reduce amount awarded claimant for incurred medical expenses. Cohens v. McGee, 219 Or App 78, 180 P3d 1240 (2008), Sup Ct review denied

 

LAW REVIEW CITATIONS: 24 WLR 313 (1988); 69 OLR 476 (1990)

 

      31.600

(formerly 18.470)

 

NOTES OF DECISIONS

 

      Court has discretion to require jury to make special findings assigning percentage of fault to parties. Hammagren v. Wald Construction, Inc., 274 Or 267, 545 P2d 859 (1976)

 

      Ordinary contributory negligence on the part of a guest passenger is a partial defense resulting in a diminished recovery rather than in no recovery at all. Johnson v. Tilden, 278 Or 11, 562 P2d 1188 (1977)

 

      Comparative negligence of investor, his spouse, and his guardian could not be used as offset to gross negligence of brokerage firm. Ryan v. Foster & Marshall, Inc., 556 F2d 460 (1977)

 

      Comparative negligence doctrine is not applicable to strict liability situations, for Oregon strict liability rule is not based on theory of negligence. Brown v. Link Belt Corp., 565 F2d 1107 (1977)

 

      Where evidence established that, after collision with truck, train came to rest 135 feet beyond point of impact, reasonable minds could differ over relative fault of parties, and it was not error to submit question to jury. Resser v. Boise-Cascade Corp., 284 Or 385, 587 P2d 80 (1978)

 

      Under this section, comparative fault is applicable in strict liability in tort. Baccelleri v. Hyster Co., 287 Or 3, 597 P2d 351 (1979)

 

      Even though doctrine of implied assumption of risk is abolished by [former] ORS 18.475, legislative intent is that conduct which is sometimes labeled assumption of risk but which is subspecies of contributory negligence can be compared in apportioning damages. Baccelleri v. Hyster Co., 287 Or 3, 597 P2d 351 (1979)

 

      Where defendant-sawmill designer alleged contributory negligence and negligent misuse of product as affirmative defenses to strict liability, trial court properly struck affirmative defenses from answer. Holdsclaw v. Warren, 45 Or App 153, 607 P2d 1208 (1980), Sup Ct review denied

 

      An injured person’s conduct which in fact is a cause of the injury and which constitutes “fault”, including negligence, is to be considered in product liability actions, unless user’s alleged negligence consists of the kind of conduct that goes toward making the product dangerously defective in the first place. Sandford v. Chev. Div. of Gen. Motors, 292 Or 590, 642 P2d 624 (1982); Wilson v. B.F. Goodrich, 292 Or 626, 642 P2d 644 (1982)

 

      It was error to instruct jury that landlord was not liable to invitee for injury from condition whose danger is known or obvious to invitee unless harm could nevertheless be anticipated, because such an instruction imports elements of contributory negligence and is, thus, incompatible with comparative negligence statute. Woolston v. Wells, 63 Or App 7, 663 P2d 408 (1983), aff’d 297 Or 548, 687 P2d 144 (1984)

 

      This section addresses itself only to those persons against whom recovery is sought when case is submitted to trier of fact for comparison of fault. Mills v. Brown, 303 Or 223, 735 P2d 603 (1987)

 

      Because there was evidence offered from which jury might have concluded that plaintiff’s injuries were exclusively or primarily result of his failure to fasten his safety belt, and because jury could have found plaintiff’s failure to do so was not reasonable under circumstances, jury should have received evidence offered by defendant on issue of safety belt defense. Dahl v. BMW, 304 Or 558, 748 P2d 77 (1987)

 

      Failure to use safety belt is not properly question of failure to mitigate damages and proper method of raising defense is through allegations of comparative fault. Morast v. James, 304 Or 571, 748 P2d 84 (1987)

 

      Insurer may be vicariously liable for actions of its agents, including counsel it hired to defend its insured. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

 

      Comparative fault applies to actions for gross negligence. DeYoung v. Fallon, 104 Or App 66, 798 P2d 66 (1990), Sup Ct review denied

 

      Under pre-1995 amendment version, beneficiaries of wrongful death action brought by estate are parties to action. Robinson v. Children’s Services Division, 140 Or App 429, 914 P2d 1123 (1996)

 

      In strict products liability case, court must: 1) determine as matter of law whether jury could find that defendant has established comparative fault defense; and 2) if requested, give instruction limiting type of negligent conduct that may be attributed to plaintiff. Hernandez v. Barbo Machinery Co., 327 Or 99, 957 P2d 147 (1998)

 

      Reduction in award for comparative fault of plaintiff is inappropriate where defendant is guilty of willful misconduct. Hampton Tree Farms, Inc. v. Jewett, 158 Or App 376, 974 P2d 738 (1999), Sup Ct review denied

 

      Prohibition against making comparison of defendant’s fault with fault of person who is immune from liability does not prevent consideration of conduct of immune person in determining whether conduct of defendant was substantial factor in causing injury. Lyons v. Walsh and Sons Trucking Co., Ltd., 183 Or App 76, 51 P3d 625 (2002), aff’d on other grounds, 337 Or 319, 96 P3d 1215 (2004)

 

      Intentional misconduct is not “fault” subject to apportionment between defendants or between plaintiff and defendant. Shin v. Sunriver Preparatory School, Inc., 199 Or App 352, 111 P3d 762 (2005), Sup Ct review denied

      When read with ORS 31.605 and 31.610, this section sets forth comprehensive system for allocating fault between parties and distributing liability for damages severally in accordance with that allocation. Comparative fault system eliminates need for common-law indemnity claim. Eclectic Investment, LLC v. Patterson, 357 Or 25, 346 P3d 468 (2015)

 

LAW REVIEW CITATIONS: 8 WLJ 37-53 (1972); 53 OLR 79-81, 84 (1973); 19 WLR 146 (1983); 69 OLR 147 (1990)

 

      31.605

(formerly 18.480)

 

NOTES OF DECISIONS

 

      For causes of action accruing prior to effective date of 1995 amendments, only comparative fault of parties appearing in action may be considered. Brown v. Washington County, 163 Or App 362, 987 P2d 1254 (1999), Sup Ct review denied

 

      Intentional misconduct is not “fault” subject to apportionment between defendants or between plaintiff and defendant. Shin v. Sunriver Preparatory School, Inc., 199 Or App 352, 111 P3d 762 (2005), Sup Ct review denied

 

      When read with ORS 31.600 and 31.610, this section sets forth comprehensive system for allocating fault between parties and distributing liability for damages severally in accordance with that allocation. Comparative fault system eliminates need for common-law indemnity claim. Eclectic Investment, LLC v. Patterson, 357 Or 25, 346 P3d 468 (2015)

 

      Where two defendants are at fault, and jury has assessed fault of each defendant separately, trial court may not then combine defendants’ allocated fault in judgment because this section allows court to combine defendants to be treated as single person only before jury allocates fault in special verdict. Wingett v. Silbernagel, 279 Or App 245, 379 P3d 570 (2016), Sup Ct review denied

 

LAW REVIEW CITATIONS: 69 OLR 147 (1990)

 

      31.610

(formerly 18.485)

 

NOTES OF DECISIONS

 

      Whether defendant is 15 percent or more at fault is measured only against other parties to action. Davis v. O’Brien, 320 Or 729, 891 P2d 1307 (1995); Faverty v. McDonald’s Restaurants, 133 Or App 514, 892 P2d 703 (1995)

 

      Where plaintiff did not make direct claim against third-party defendant, “damages” awarded in judgment against third-party defendant may not include attorney fees. Huntley v. Tri-Met, 210 Or App 269, 149 P3d 1268 (2006)

 

      When read with ORS 31.600 and 31.605, this section sets forth comprehensive system for allocating fault between parties and distributing liability for damages severally in accordance with that allocation. Comparative fault system eliminates need for common-law indemnity claim. Eclectic Investment, LLC v. Patterson, 357 Or 25, 346 P3d 468 (2015)

 

LAW REVIEW CITATIONS: 24 WLR 313 (1988)

 

      31.620

(formerly 18.475)

 

NOTES OF DECISIONS

 

      This section prohibited the defendant from successfully arguing that he owed the plaintiff no duty where the plaintiff volunteered to help set a mobile home on a foundation for the benefit and under the direction of the defendant, and the jury found the method used to be negligent. Thompson v. Weaver, 277 Or 299, 560 P2d 620 (1977)

 

      In products liability action, manufacturer was barred by this section from raising defense of actual assumption of risk. Hornbeck v. Western States Fire Apparatus, 280 Or 647, 572 P2d 620 (1977)

 

      Prior to adoption of this section, assumption of risk constituted “superseding proximate cause of injury,” notwithstanding strict liability. Brown v. Link Belt Corp., 565 F2d 1107 (1977)

 

      Even though doctrine of implied assumption of risk is abolished by this section, legislative intent is that conduct which is sometimes labeled assumption of risk but which is subspecies of contributory negligence can be compared, under [former] ORS 18.470, in apportioning damages. Baccelleri v. Hyster Co., 287 Or 3, 597 P2d 351 (1979)

 

      Since this section has abolished the doctrine of assumption of risk in every sense, separate instruction, focusing on plaintiff’s implied assumption of the risk, was improper. Blair v. Mt. Hood Meadows Development Corp., 291 Or 293, 630 P2d 827 (1981), as modified by 291 Or 703, 634 P2d 241 (1981)

 

      As result of abolition of implied assumption of risk, “fireman’s rule” is abolished as rule of law and no longer can bar recovery of damages for personal injuries sustained by public safety officer, in course of employment, as a result of defendant’s negligent conduct; overruling Spencer v. B.P. John Furniture Corp., 255 Or 359, 467 P2d 429 (1970). Christensen v. Murphy, 296 Or 610, 678 P2d 1210 (1984)

 

LAW REVIEW CITATIONS: 21 WLR 357 (1985)

 

      31.700

(formerly 30.810)

 

NOTES OF DECISIONS

 

      Consent to inclusion of parent’s claim for medical expense damages must be expressly given, not implied. Barrington v. Sandberg, 164 Or App 292, 991 P2d 1071 (1999)

 

      31.710

(formerly 18.560)

 

NOTES OF DECISIONS

 

      Economic damages awarded for pecuniary loss in wrongful death actions are not limited to objectively verifiable monetary losses. Ingram v. Acands, Inc., 977 F2d 1332 (1992)

 

      Plaintiff need not present evidence of past employment or intent of future employment to collect damages for reduced earning capacity. Richmond v. Zimbrick Logging, Inc., 124 Or App 631, 863 P2d 520 (1993), Sup Ct review denied

 

      Where personal injury was not essential element of claim, instruction that jury must find noneconomic damages before awarding economic damages was erroneous. Whitman-McCoy v. Dept. of Corrections, 132 Or App 45, 887 P2d 375 (1994)

 

      Pleadings in negligence claim could include allegation of harm based on birth of healthy normal child. Zehr v. Haugen, 318 Or 647, 871 P2d 1006 (1994)

 

      Term “objectively verifiable monetary losses” does not impose proof requirement that monetary loss be objectively verified. DeVaux v. Presby, 136 Or App 456, 902 P2d 593 (1995)

 

      Definition of “economic damages” as damages that are objectively verifiable does not require that jury be informed of tax consequences of award. 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

 

      Amount of charges necessarily “incurred” for medical services is amount that party becomes liable or subject to at time party receives treatment, regardless of amounts provider subsequently writes off. White v. Jubitz Corp., 219 Or App 62, 182 P3d 215 (2008), aff’d 347 Or 212, 219 P3d 566 (2009)

 

      Plaintiff’s claims for work-related injury brought against third party defendant unaffiliated with plaintiff’s employer are not subject to exception from statutory cap on noneconomic damages for workers’ compensation claims. Vasquez v. Double Press Mfg., Inc., 288 Or App 503, 406 P3d 225 (2017), Sup Ct. review allowed

 

      Cap on noneconomic damages, as applied to plaintiff’s award for work-related injuries against third party manufacturer, was unconstitutional violation of remedy clause because damages cap had effect of reducing plaintiff’s award from $6,199,090 to $1,839,090, which resulted in non-substantial award and did not take into account identifiable quid pro quo benefit for plaintiff. Vasquez v. Double Press Mfg., Inc., 288 Or App 503, 406 P3d 225 (2017), Sup Ct. review allowed

 

      Application of noneconomic damages cap is unconstitutional when result is dramatic reduction of noneconomic damages for most grievously injured plaintiffs. Rains v. Stayton Builders Mart, Inc., 289 Or App 672, 410 P3d 336 (2018)

 

LAW REVIEW CITATIONS: 24 WLR 285 (1988); 26 WLR 198 (1989)

 

      31.715

(formerly 18.592)

 

NOTES OF DECISIONS

      Prohibition against recovery of noneconomic damages by uninsured driver does not violate Oregon Constitution remedy clause in section 10, Article I, or right to jury clause in section 17, Article I. Lawson v. Hoke, 190 Or App 92, 77 P3d 1160 (2003), aff’d 339 Or 253, 119 P3d 210 (2005)

 

      Court may not use limited judgment as mechanism for disposing of request for noneconomic damages. Lindsay v. The Nicewonger Co., Inc., 203 Or App 750, 126 P3d 730 (2006)

 

      Exception for plaintiff formerly insured under liability policy is available only if coverage of plaintiff under policy has lapsed. Hill v. Null, 224 Or App 345, 197 P3d 582 (2008), Sup Ct review denied

 

      31.725

(formerly 18.535)

 

NOTES OF DECISIONS

 

      Statute is inapplicable in federal diversity cases. Pruett v. Erickson Air-Crane Company, 183 FRD 248 (D. Or. 1998)

 

      Standard for determining sufficiency of evidence supporting motion to amend is whether plaintiff has presented some evidence supporting each element of claim. Bolt v. Influence, Inc., 333 Or 572, 43 P3d 425 (2002)

 

      In determining sufficiency of evidence supporting motion to amend, court must also consider evidence submitted by defendant establishing immunity or other exemption or complete defense to punitive damages award. Bolt v. Influence, Inc., 333 Or 572, 43 P3d 425 (2002)

 

       Requirement that court deny motion to amend pleading to include punitive damages if evidence is insufficient does not affect discretion of court to deny motion on other grounds. Richardson v. Fred Meyer, Inc., 211 Or App 421, 155 P3d 881 (2007)

 

      31.730

(formerly 18.537)

 

NOTES OF DECISIONS

 

      Whether punitive damages are within range awardable by rational juror is not determined by fixed ratio between compensatory damages amount and punitive damages amount. Axen v. American Home Products Corp., 158 Or App 292, 974 P2d 224 (1999), modified 160 Or App 19, 981 P2d 340 (1999), Sup Ct review denied, cert. denied, 528 US 1136

 

      Reduction of punitive damages awarded on common law claim of wrongful discharge violates section 17, Article I, Oregon Constitution. Halbasch v. Med-Data, Inc., 192 FRD 641 (D. Or. 2000)

 

      Power to reduce damages award based on remedial measures taken by defendant is limited to trial court. Groth v. Hyundai Precision and Ind. Co., 209 Or App 781, 149 P3d 333 (2006)

 

      Proof of elevated mens rea required by this provision for award of noneconomic damages does not establish similar requirement for other statutes that provide for award of noneconomic damages. Herring v. American Medical Response Northwest, 255 Or App 315, 297 P3d 9 (2013), Sup Ct review denied

 

      31.735

(formerly 18.540)

 

NOTES OF DECISIONS

 

      Jury instruction based on this section which told jury that award of punitive damages would be distributed among prevailing party and their attorney and Criminal Injuries Compensation Account, injected into jury deliberation factors not properly considered in deciding whether to award punitive damages and amount thereof. Honeywell v. Sterling Furniture Co., 99 Or App 94, 781 P2d 379 (1989), modified 310 Or 206, 797 P2d 1019 (1990)

 

      Allowing recovery of attorney fees under this provision does not preclude recovery under ORS 646.638 (3). Honeywell v. Sterling Furniture Co., 310 Or 206, 797 P2d 1019 (1990)

 

      State’s entitlement to share of punitive damages award applies to award made in federal case arising under state law. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

 

      Because plaintiff has no inherent right or interest in punitive damages award, claim by state to share of award does not violate provisions of Oregon Constitution regarding remedy for injury, trial by jury, reexamination of factual determination by jury, taking of property or taxation. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

 

      Requirement that state be listed as judgment creditor for share of punitive damages award does not impermissibly intrude on judicial functions. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

 

      State’s statutory share of punitive damages award is not taking of property or imposition of excessive fine in violation of United States Constitution. Engquist v. Oregon Department of Agriculture, 478 F3d 985 (9th Cir. 2007)

 

      State has standing to enforce state interest in award of punitive damages. MAN Aktiengesellschaft v. DaimlerChrysler AG, 218 Or App 117, 179 P3d 675 (2008)

 

      Consent of Department of Justice is not prerequisite to post-verdict, pre-judgment settlement between parties. Patton v. Target Corporation, 349 Or 230, 242 P3d 611 (2010); Patton v. Target Corporation, 627 F3d 1304 (9th Cir. 2010)

 

      Only after court has entered judgment awarding punitive damages does state have right as judgment creditor to enforce that portion of award to be allocated to state for deposit in Criminal Injuries Compensation Account. Williams v. RJ Reynolds Tobacco Company, 351 Or 368, 271 P3d 103 (2011)

 

      State’s interest in portion of punitive damages award to be allocated to state for deposit I Criminal Injuries Compensation Account arises by operation of law in any case in which punitive damages are awarded, without regard to nature of underlying litigation. Williams v. RJ Reynolds Tobacco Company, 351 Or 368, 271 P3d 103 (2011)

 

      Where estate entered into agreement with its attorneys that attorneys would receive 40 percent of gross amount collected from estate’s action filed against corporation and estate received punitive damages award, and attorneys represented estate in subsequent related matter against state that resulted in another money award to estate, fee cap in this section applies only to punitive damages award from first action and not to all moneys received by estate. Williams v. Gaylord, 268 Or App 107, 341 P3d 202 (2014), Sup Ct review denied

 

LAW REVIEW CITATIONS: 26 WLR 755 (1990); 38 WLR 477 (2002); 46 WLR 449 (2010)

 

      31.740

(formerly 18.550)

 

NOTES OF DECISIONS

 

      Employer of health practitioner may be subject to vicarious liability for punitive damages whether or not employer was at fault. Johannesen v. Salem Hospital, 336 Or 211, 82 P3d 139 (2003)

 

      31.760

(formerly 18.590)

 

NOTES OF DECISIONS

 

      Where jury was accurately instructed on differences between alleged comparative fault of leaning forward and seat belt mitigation factor, comparative fault defense that plaintiff was leaning forward in truck cabin at time of collision with defendant’s vehicle did not relate only to nonuse of his seat belt and was not precluded by provision of this section under which nonuse cannot be comparative fault defense. Anderson v. Loomis, 110 Or App 396, 822 P2d 752 (1991)

 

      Where failure to wear seatbelt did not cause accident, express limitation of evidence exception prevented introduction of nonuse to prove cause of injury to rescuer. Rectenwald v. Snider, 134 Or App 250, 894 P2d 1242 (1995), Sup Ct review denied

 

LAW REVIEW CITATIONS: 26 WLR 551 (1990); 69 OLR 147 (1990)

 

      31.800

(formerly 18.440)

 

NOTES OF DECISIONS

 

      Statute granting the right of contribution among joint tortfeasors is not retroactive and therefore no joint tortfeasor has a right to contribution unless the tort for which contribution is sought was committed on or after the effective date of the statute. Coos-Curry Elec. v. Curry County, 26 Or App 645, 554 P2d 601 (1976)

 

      In contribution suit, third party defendant is liable to original defendant-third party plaintiff for portion of total liability only if original plaintiff could have recovered against third party defendant. Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980)

 

      Where party had been found not liable to original plaintiff by virtue of summary judgment in separate lawsuit, there was no cause of action for contribution under this section. Blackledge v. Harrington, 291 Or 691, 634 P2d 243 (1981)

 

      Tortfeasor who settles plaintiff’s claims against all tortfeasors is not barred from recovering contribution on theory that resulting dismissal constitutes judgment that tortfeasors who did not participate in settlement are “not liable in tort to the claimant.” Transport Indemnity Co. v. BB and S, Inc., 63 Or App 392, 664 P2d 1115 (1983), Sup Ct review denied

 

      State is “person” for purposes of paying or recovering contribution. Beaver v. Pelett, 299 Or 664, 705 P2d 1149 (1985)

 

      Contribution claim notice by defendant is insufficient to make state liable in tort to claimant under ORS 30.275. Beaver v. Pelett, 299 Or 664, 705 P2d 1149 (1985); Mitchell v. Sherwood, 161 Or App 376, 985 P2d 870 (1999), Sup Ct review denied

 

      State’s third-party contribution claim against plaintiff’s attorney in earlier action, alleging that he was negligent in failing to “monitor” entry of order in that action and that his negligence contributed to damages sustained by plaintiff was wrongly dismissed and was not subject to defense of “no duty,” even if ORCP 63E directs court clerk to send attorney notice of entry of order. Simpson v. State of Oregon, 94 Or App 15, 764 P2d 580 (1988)

 

      Where insurance company sought contribution under this section based on allegation that Oregon Health Sciences University and state were responsible for obligation insurance company discharged, but only partially, as subrogee of resident doctor and hospital at which malpractice allegedly occurred, insurance company’s allegations do not establish right to contribution as matter of law. Aetna Casualty & Surety Co. v. OHSU, 310 Or 61, 793 P2d 320 (1990)

 

      Where claim settled without trial, contribution plaintiff was not required to prove damage and liability details of underlying suit to recover from contribution defendant. Jensen v. Alley, 128 Or App 673, 877 P2d 108 (1994), Sup Ct review denied

 

      31.805

(formerly 18.445)

 

NOTES OF DECISIONS

 

      Where complaint alleges that insurance company paid more than its proportionate share of common liability and had right to seek contribution from joint insurer but did not allege that insurer discharged liability, pleading is not sufficient and trial court did not err in dismissing contribution claim. Aetna Casualty & Surety Co. v. OHSU, 96 Or App 292, 773 P2d 1320 (1989), aff’d 310 Or 61, 793 P2d 320 (1990)

 

      Liability is apportioned among joint tortfeasors, not by allocation of proximate cause or physical cause, but by allocating cause-in-fact fault based on relative magnitude of defect. Ingram v. Acands, Inc., 977 F2d 1332 (1992)

 

      Once plaintiff presented evidence asbestos product was present in workplace, it was for jury to determine whether product was cause-in-fact of plaintiff’s injuries, notwithstanding lack of particularized proof of frequency, regularity and proximity of contact. Ingram v. Acands, Inc., 977 F2d 1332 (1992)

 

      31.810

(formerly 18.450)

 

NOTES OF DECISIONS

 

      Action for contribution before discharge of common liability is premature. Southern Pacific Trans. Co. v. City of Portland, 75 Or App 149, 706 P2d 1000 (1985), Sup Ct review denied

 

      Where insurance company sought contribution under this section based on allegation that Oregon Health Sciences University and state were responsible for obligation insurance company discharged, but only partially, as subrogee of resident doctor and hospital at which malpractice allegedly occurred, insurance company’s allegations do not establish right to contribution as matter of law. Aetna Casualty & Surety Co. v. OHSU, 310 Or 61, 793 P2d 320 (1990)

 

      31.815

(formerly 18.455)

 

NOTES OF DECISIONS

 

      Crediting of settlements under this section is to be done by the court rather than jury, and evidence about existence or amount of settlement is not admissible except in appropriate circumstances where court instructs jury to disregard settlement and render verdict for full amount of damages. Yardley v. Rucker Brothers Trucking, Inc., 42 Or App 239, 600 P2d 485 (1979), Sup Ct review denied

 

      This section can properly be applied in action for wrongful death cognizable under maritime law. Wheeler v. Bonnin, 47 Or App 645, 615 P2d 355 (1980)

 

      Where claims of spouse were separate and distinct there was no error in failing to combine spouses’ shares of pretrial settlement. Ertsgaard v. Beard, 97 Or App 471, 777 P2d 971 (1989), aff’d 310 Or 486, 800 P2d 759 (1990)

 

      Third-party defendants were not entitled to summary judgment on contribution claim without producing direct evidence that plaintiff’s covenant not to sue was given in good faith. SAIF v. Barkman, 101 Or App 20, 789 P2d 8 (1990)

 

      Where part of amount paid for settlement related to non-tort claim but was not separately identified, joint tortfeasor was entitled to setoff for full settlement amount. Hirsovescu v. Shangri-La, Inc., 127 Or App 22, 870 P2d 859 (1994)

 

      31.825

 

NOTES OF DECISIONS

 

      Where defendant contractor and plaintiff homeowners association entered into settlement agreement that included stipulated judgment against defendant, covenant by plaintiff not to execute judgment and assignment to plaintiff of defendant’s claim against defendant’s insurer for failure to defend defendant, claim against insurer was not extinguished by covenant because claim was not result of any judgment as contemplated by this section. Brownstone Homes Condominium Association v. Brownstone Forest Heights, 358 Or 223, 363 P3d 467 (2015)

 

      31.850 to 31.890

 

      See annotations under ORS 15.400 to 15.460.

 

      31.850

 

      See annotations under ORS 15.400.

 

      31.860

 

      See annotations under ORS 15.410.

 

      31.862

 

      See annotations under ORS 15.415.

 

      31.865

 

      See annotations under ORS 15.420.

 

      31.870

 

      See annotations under ORS 15.430.

 

      31.872

 

      See annotations under ORS 15.435.

 

      31.875

 

      See annotations under ORS 15.440.

 

      31.878

 

      See annotations under ORS 15.445.

 

      31.980

(formerly 30.840)

 

NOTES OF DECISIONS

 

      Where complaint alleged that defendant tortiously injured plaintiff’s wife through sexual harassment and battery and that plaintiff suffered loss as consequence, action was claim for loss of consortium, not prohibited claim for alienation of affection. Shoemaker v. Management Recruiters International, 125 Or App 568, 865 P2d 1331 (1993)