Dowers Farms, Inc. v. Lake County
Decision Date | 18 March 1980 |
Citation | 288 Or. 669,607 P.2d 1361 |
Parties | DOWERS FARMS, INC., an Oregon Corporation, Petitioner, v. LAKE COUNTY, Oregon, Respondent. CA 11232; SC 26249. |
Court | Oregon Supreme Court |
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.
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. 2 We 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." 3 The 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. 5 Dowers 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.
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 as ORS 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 as ORS 30.275) did not employ either word:
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
Plaintiff contends that the 1969 amendments 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 1969 amendments "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 1969 amendments 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 1969 amendment 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):
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Fossum, Matter of
...is no 'accident or occurrence' unless the result is injury capable of compensation in an action for damages.' Dowers Farms v. Lake County, 288 Or. 669 at 678, 607 P.2d 1361 (1980). The language of ORS 656.807(1) is finite; it does not allow for expansive judicial construction. The five-year......
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Dortch v. A. H. Robins Co., Inc.
...to run at the time of the plaintiff's reasonable discovery of the defendant's causal involvement. * * *." (Citing Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980) (Tort Claims Act); Repp v. Hahn, 45 Or.App. 671, 609 P.2d 398, rev. den. 289 Or. 373 (1980) (Wrongful Death Act); ......
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Gaston v. Parsons
...public bodies). This court has recognized that the discovery rule applies to each of those statutes. See Dowers Farms v. Lake County, 288 Or. 669, 681, 607 P.2d 1361 (1980) (ORS 30.275); U.S. Nat'l Bank v. Davies, 274 Or. 663, 668-69, 548 P.2d 966 (1976) (ORS 12.110(1)). This court's prior ......
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Brown v. Portland School Dist. No. 1
...507, 506 P.2d 541 (1973) (letter to Regional Engineer of agency, forwarded to counsel to the agency). Compare Dowers Farms v. Lake Co., 288 Or. 669, 607 P.2d 1361 (1980). 2 Defendants argue, however, that language added to ORS 30.275(1) subsequent to those cases reflects a legislative inten......