Bell v. Tri-County Metro. Transp. Dist. of Or., Corp.

• Decision Date: 16 May 2013
• Docket Number: (CC 090913232,SC S060373).,CA A145225
• Parties: General BELL, Personal Representative of the Estate of Thomas Bell, Deceased, Petitioner on Review, v. TRI–COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a municipal corporation, Respondent on Review.
• Court: Oregon Supreme Court

353 Or. 535

301 P.3d 901

General BELL, Personal Representative of the Estate of Thomas Bell, Deceased, Petitioner on Review,

v.TRI–COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a municipal corporation, Respondent on Review.

(CC 090913232; CA A145225; SC S060373).

Supreme Court of Oregon,

En Banc.

Argued and Submitted Jan. 10, 2013.

Decided May 16, 2013.

On review from the Court of Appeals.^*

Willard E. Merkel, Merkel & Associates, Portland, argued the cause for petitioner on review.

Kimberly Sewell, Portland, argued the cause and filed the brief for respondent on review.

Kristian Roggendorf, O'Donnell Clark & Crew LLP, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

BREWER, J.

The question in this case is whether plaintiff's survival action against a public body must be brought within two years or three years of the alleged injury. Either of two statutes supplies the answer. On the one hand, ORS 30.275(9) provides that, “notwithstanding any other * * * statute providing a limitation on the commencement of an action,” a tort action against a public body must be filed within two years after the alleged loss or injury. On the other hand, ORS 30.075(1) provides that survival actions for personal injuries must be brought within three years of the alleged loss or injury. The determinative inquiry is whether ORS 30.075(1) constitutes a “statute providing a limitation on the commencement of an action.” If it does, then it falls within the notwithstanding clause of ORS 30.275(9), and the two-year limitation period set out in that statute applies. For the reasons that follow, we conclude that ORS 30.075(1) does constitute a “statute providing a limitation on the commencement of an action,” thus triggering the two-year limitation period of ORS 30.275(9).

We take the undisputed facts and some of the procedural history of the case from the opinion of the Court of Appeals.

“On September 4, 2007, decedent allegedly sustained personal injuries while disembarking from a bus operated by [defendant]. Decedent died, on September 9, 2008, from causes unrelated to the bus accident. On September 18, 2009—more than two years, but less than three years, after the bus incident—plaintiff, decedent's personal representative, filed a complaint alleging that [defendant] had negligently injured decedent and seeking damages for the alleged personal injuries.

“[Defendant] moved to dismiss, ORCP 21 A(9), contending that plaintiff's action was barred under ORS 30.275(9) the statute of limitations for claims under the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300.

“ * * * * *

“In response, plaintiff asserted that, given decedent's intervening death, the complaint was subject not to the two-year limitation of ORS 30.275(9) but, instead, to the three-year period described in ORS 30.075(1).

Bell v. Tri–Met, 247 Or.App. 666, 668–69, 271 P.3d 138 (2012) (footnotes omitted). The trial court concluded that ORS 30.275(1) established a limitation on the commencement of a survival action for personal injuries that is superseded, in a tort action against a public body, by the two-year limit set out in ORS 30.275(9). Accordingly, the court granted defendant's motion to dismiss on the ground that plaintiff had commenced the action more than two years after the injury-producing incident.

Plaintiff appealed, and the Court of Appeals affirmed. The court held that, “with respect to an action for personal injury brought by a decedent's personal representative against a public body, the two-year limitation for the commencement of an action in ORS 30.275(9) precludes the application of the three-year limitation provided in ORS 30.075(1).” Bell, 247 Or.App. at 675, 271 P.3d 138. Because it had concluded in an earlier decision that ORS 30.075(1) is a “statute providing a limitation on the commencement of an action,” Giulietti v. Oncology Associates of Oregon, 178 Or.App. 260, 36 P.3d 510 (2001), the court held that ORS 30.075(1) fell within the scope of the notwithstanding clause of ORS 30.275(9).

On review, plaintiff contends that the Court of Appeals erred in concluding that ORS 30.275(9) precludes application of the three-year limitation period set out in ORS 30.075(1). According to plaintiff, that three-year period merely extends or tolls the underlying two-year limitation period for personal injury claims set out in ORS 12.110 in circumstances where the decedent has died during that period without bringing an action. Therefore, plaintiff urges, ORS 30.075(1) does not, itself, constitute a limitation on the commencement of an action that is subject to the notwithstanding clause of ORS 30.275(9).

In support of that argument, plaintiff relies on this court's decision in Baker v. City of Lakeside, 343 Or. 70, 83, 164 P.3d 259 (2007). At issue in Baker was whether the notwithstanding clause in ORS 30.275(9) applied to ORS 12.020(2), a statute that permits service of process to relate back to the date on which the complaint was filed.¹ We held that it did not, because “the notwithstanding clause in ORS 30.275(9) applies onlyto those provisions of ORS chapter 12 and other statutes that provide a limitation on the commencement of an action,” and ORS 12.020 was not such a statute. Baker, 343 Or. at 83, 164 P.3d 259 (emphasis added). In reaching that conclusion, we discussed in detail the legislative history of ORS 30.275(9). Id. at 77–82, 164 P.3d 259. In summary, we observed that:

“Nothing in the legislative history suggests that the legislature intended to depart from the longstanding rule of procedure found in ORS 12.020(2), nor does it suggest that the legislature intended to deny children and persons with mental disabilities bringing OTCA claims the advantage of a tolling provision that is available to them in every other action.”

Id. at 82, 164 P.3d 259 (emphasis added); see alsoORS 12.160 (providing that, if a cause of action accrues at a time when the person entitled to bring that action is either under 18 years of age or suffering from a mental disability, the statute of limitations applicable to the action is tolled for so long as the person remains under 18 or as long as the person's mental disability persists).

As plaintiff understands it, Baker holds that statutes such as ORS 12.160 that toll or extend underlying statutes of limitation are not “limitations on the commencement of an action” and, thus, apply to actions against public bodies despite ORS 30.275(9).² Plaintiff asserts that ORS 30.075(1) similarly extends an underlying limitation period—the two-year time limit in ORS 12.110—to three years when an injured person dies before bringing an action. It follows, plaintiff reasons, that ORS 30.075(1) constitutes a tolling provision that is not superseded by the notwithstanding clause in ORS 30.275(9). Defendant replies that ORS 30.075(1) neither extends nor tolls an underlying statute of limitations but, rather, constitutes a separate statute of limitations for survival actions that are brought, in the first instance, by a decedent's personal representative. Therefore, defendant asserts, the Court of Appeals correctly concluded that the three-year period established in ORS 30.075(1) is “a limitation on the commencement of an action” that is superseded by the notwithstanding clause of ORS 30.275(9).

Because this case presents a question of interpretation involving the interplay between two statutes, we resolve it under the principles set out in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009); that is, we examine the text and context of the statute and any legislative history that appears to be helpful at that level of analysis. In re V.N.W., 353 Or. 25, 34, 292 P.3d 548 (2012). The pertinent context includes “other provisions of the same statute and other related statutes, as well as the preexisting common law and the statutory framework within which the statute was enacted.” Fresk v. Kraemer, 337 Or. 513, 520–21, 99 P.3d 282 (2004).

ORS 30.075(1) provides:

“Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section, or within three years by the personal representatives if not commenced prior to death.”

ORS 30.275(9) provides:

“Except as provided in ORS 12.120, 12.135 and 659A.875, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury.”

As we explained in Baker, the “notwithstanding clause” of ORS 30.275(9) “applies only to those provisions of ORS chapter 12 and other statutes that provide a limitation on the commencement of an action.” Baker, 343 Or. at 83, 164 P.3d 259. Such a limitation is, in different words, a statute of limitations. Id. at 82–83, 164 P.3d 259 (“[I]n amending what is now ORS 30.275(9), the legislature focused solely on the question of statutes of limitations.”). Thus, the dispositive question in this case is whether the three-year time limit for bringing a survival action in ORS 30.075(1) establishes a “limitation on the commencement of an action”; that is, whether it is a statute of limitations.

A statute of limitations is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim...