Dowers Farms, Inc. v. Lake County

• Jurisdiction: Oregon
• Parties: DOWERS FARMS, INC., an Oregon Corporation, Petitioner, v. LAKE COUNTY, Oregon, Respondent. CA 11232; SC 26249.
• Citation: Dowers Farms, Inc. v. Lake County, 288 Or. 669, 607 P.2d 1361 (Or. 1980)
• Court: Oregon Supreme Court
• Decision Date: 18 March 1980

Page 1361

607 P.2d 1361

288 Or. 669

DOWERS FARMS, INC., an Oregon Corporation, Petitioner, v.LAKE COUNTY, Oregon, Respondent.

CA 11232; SC 26249.

Supreme Court of Oregon.

Argued and Submitted Dec. 4, 1979.

Decided March 18, 1980.

John P. Conley, Portland, argued the cause for petitioner.On the brief was James H. Phelps, Madras.

G. Kenneth Shiroishi, Portland, argued the cause for respondent.On the brief was Howard K. Beebe, Portland.

Before DENECKE, C. J., and HOLMAN, ^*HOWELL, LENT, LINDE, ^** and PETERSON, JJ.

LENT, Justice.

This case arises under the statutes providing for tort actions against public bodies (herein the Tort Claims Act).ORS 30.260 to 30.300.Two issues are presented.The first is whether the two year period of limitations, ORS 30.275(3), runs from the date of the incident precipitating plaintiff's injury ¹ or from the date when the plaintiff discovers the injury.²We hold that it runs from the date of the discovery.The second issue is whether there is evidence from which it could be found that plaintiff complied with the notice requirements of ORS 30.275(1).We hold there was not and therefore affirm the Court of Appeals' reversal of the trial court judgment for plaintiff.

Prior to answering in the trial court, defendant demurred to the amended complaint on the ground that "(i)t appears from the face of the Amended Complaint that the action was not commenced within the time limited by statute."³The demurrer was overruled.Upon trial, after both parties had rested defendant timely moved for a directed verdict on the ground "there is no competent or substantial evidence that the notice required by statute was given by plaintiff; that there is no competent or substantial evidence that the defendant, Lake County, had actual notice of the plaintiff's claim within the 180 days required by the statute."⁴

The motion was denied.Plaintiff had judgment upon a jury verdict.

On appeal defendant assigned as error the overruling of its demurrer and the denial of its motion.The Court of Appeals reversed, holding that the statute of limitations begins to run from the date of the incident precipitating the injury rather than the date upon which the resulting injury is discovered.⁵Dowers Farms, Inc., 39 Or.App. 685, 593 P.2d 1207, reconsid. den. with opinion, 40 Or.App. 647, 595 P.2d 1385(1979).We allowed review, ORS 2.520, to consider that holding.

THE STATUTE OF LIMITATIONS

In its amended complaint plaintiff alleges that on March 11, 1975, defendant sprayed herbicide upon a country road bordering upon plaintiff's land, that the spray drifted onto plaintiff's land and destroyed plaintiff's potato crop, and that plaintiff first discovered the injury on July 15, 1975.This action was commenced on June 14, 1977, which is more than two years from the date of defendant's spraying but less than two years from the date of plaintiff's discovery of the resulting injury.

As pertinent to the statute of limitations issue, ORS 30.275(3) provided at the time this case was filed:

"No action shall be maintained * * * unless the action is commenced within two years after the date of such accident or occurrence."

The first order of inquiry is whether the meaning intended by the legislature for the words "accident or occurrence" is "not ambiguous" as the Court of Appeals held, 39 Or.App. at 689, 593 P.2d at 1209.⁶

We note that the definitions section, ORS 30.260, does not include the term "accident or occurrence."When the Tort Claims Act was enacted in 1967, Or.Laws 1967, ch. 627, the word "accident" did not appear at all.The word "occurrence" appeared twice in Section 4(codified asORS 30.270) which limited liability to "$300,000 for any number of claims arising out of a single occurrence" and provided for apportionment of awards and settlements among claimants"for all claims arising out of the occurrence."Section 5(codified asORS 30.275) did not employ either word:

"Section 5.(1) Every person who claims damages from a public body for or on account of any loss or injury within the scope of this Act shall cause to be presented to the governing body of the public body within 45 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded.Failure to state the amount of compensation or other relief demanded does not invalidate the notice; but, in such case, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within 30 days after written demand by the public body.

"(2) When the claim is for death, the notice may be presented by the personal representative, surviving spouse or next of kin, or by the consular officer of the foreign country of which the deceased was a citizen, within one year after the alleged injury or loss resulting in such death.However, if the person for whose death the claim is made has presented a notice that would have been sufficient had he lived, an action for wrongful death may be brought without any additional notice.

"(3) No action shall be maintained unless such notice has been given and unless the action is commenced within one year after such notice.The time for giving such notice does not include the time, not exceeding 90 days, during which the person injured is incapacitated by the injury from giving the notice."

It is plain that the limitation for commencing action was pegged to the giving of notice, in turn pegged to the date of "loss or injury."

At the very next general session the legislature made changes with respect to the language concerning the period of limitation, Or.Laws 1969, ch. 429, § 3, by amending ORS 30.275 to the form applicable to this case.The amendments to subsections (1) and (3) follow (with deleted matter in brackets and new matter in italics):⁷

"(1) Every person who claims damages from a public body for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to (the governing body of) the public body within (45) 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded.Claims against the State of Oregon shall be presented to the state agency against whom the claim is made or to the Attorney General.Claims against any other public body shall be presented to a person upon whom process could be served in accordance with subsection (2) of ORS 15.080.Failure to state the amount of compensation or other relief demanded does not invalidate the notice.(; but, in such case, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within 30 days after written demand by the public body.)

"* * *

"(3) No action shall be maintained unless such notice has been given and unless the action is commenced within (one year after such notice) two years after the date of such accident or occurrence.The time for giving such notice does not include the time, not exceeding 90 days, during which the person injured is (incapacitated by) unable to give the notice because of the injury (from giving the notice) or because of minority, incompetency or other incapacity."

Plaintiff contends that the 1969amendments to ORS 30.275 were intended to "liberalize"the statute with respect to the period of limitations because the original notice period was extended from 45 to 180 days and a two-year period of limitations was provided in place of the assertedly maximum period of one year and 45 days in the 1967 version.Defendant argues, however, that exactly the opposite was the legislative concern in that action could be commenced at any time up until one year from giving of notice and, since the time for giving of the notice did not commence to run until discovery of a "latent" or "undiscovered" loss or injury, there was prior to the 1969amendments"an unlimited time liability."Defendant further argues that the two-year period was intended to provide a "statute of ultimate repose."While each argument has merit neither really addresses the meaning of "accident or occurrence."Our own examination of the statutory scheme, however, brings us to the conclusion that the meaning of the term "accident or occurrence" is not plain on its face and therefore requires judicial construction.

The parties have not referred us to any legislative history which squarely points to the intent of the legislature in injecting the term "accident or occurrence" into ORS 30.275.Neither has our own research been of avail in this respect.

As noted above the word "occurrence" had been used in the 1967 Act.The 1969amendments for the first time injected the word "accident" into the Tort Claims Act in amendments to ORS 30.270 as well as to 30.275(3) as set forth above.In each place where the word "accident" was added it was done so as a part of the term "accident or occurrence."

The 1969amendment to ORS 30.275(3) provides the modifier "such" immediately preceding "accident or occurrence."That would indicate that the term is used in the same sense as a previous usage.As noted above there is no previous usage of the term in ORS 30.275, but there is a usage of the term in ORS 30.270 as simultaneously amended in 1969(deleted matter in brackets and new matter in italics):

"Section 2.ORS 30.270 is amended to read:

"30.270.(1) Liability of (any) a public body (on any claim) on claims within the scope of ORS 30.260 to 30.300 shall not exceed:

"(a)($25,000 when the claim is one for damage to or destruction of property and $50,000 to any claimant in any other case.) $25,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.

"((b) $300,000 for any number of claims arising out of a single occurrence.)

"(b)...