Espinoza v. Evergreen Helicopters, Inc., 090912350, 090912777, 090913294, 091015153, 091015154, 091217035, 100202814, 100303637

• Decision Date: 08 October 2014
• Docket Number: A147028.,090912350, 090912777, 090913294, 091015153, 091015154, 091217035, 100202814, 100303637
• Citation: 337 P.3d 169,266 Or.App. 24
• Parties: Rosa Aurelia Palacios ESPINOZA, Personal Representative of the Estate of Victor Andres Espinoza Horna, Deceased, for her own benefit as the surviving spouse and for the benefit of Micaela Ariana Espinoza and Mariam Andrea Espinoza, surviving children of the deceased, Plaintiff–Appellant, v. EVERGREEN HELICOPTERS, INC., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant. Erika Consuelo Machado Merino, Personal Representative of the Estate of Juan Francisco Garcia Rubio, Deceased, for her own benefit as the surviving spouse and for the benefit of Macarena Garcia Machado and Mariono Garcia Santolalla, surviving children of the deceased, and Arturo Benjamin Garcia Pinillos, surviving father of the deceased, Plaintiff–Appellant, v. Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant. July Marlene Churata Fernandez, Personal Representative of the Estate of Christian Martin Querevalu Quiroz, Deceased, for her own benefit as the surviving spouse and for the benefit of Camila Milagros Querevalu Churata, surviving child of the deceased, Freddy Quiroz Dulanto De Querevalu, and Rolandi Querevalu Suarez, surviving parents of the deceased, Plaintiff–Appellant, v. Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant. Flor De Maria Gamboa Alvarez, Personal Representative of the Estate of Fernando Cesar Nunez Del Prado Reynoso, Deceased, for her own benefit as the surviving spouse and for the benefit of Caroline Anthuanet Nunez Del Prado Gamboa and Fernando Junior Nunez Del Prado Gamboa, surviving children of the deceased, and Margarita Severiana Reynoso Quispe and Ricardo Cesar Nunez Del Prado Saavedra, surviving parents of the deceased, Plaintiff–Appellant, v. Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant. Flor Katherine Soto Lican, Personal Representative of the Estate of Jose Luis Saldana Eustaquio, Deceased, for her own benefit as the surviving spouse and for the benefit of Joseph Saldana Soto, Luiggi Saldana Soto, Miguel Angel Saldana Soto, Maria Elizabeth Saldana Gutierrez, and Alexandra Himena Saldana Gutierrez, surviving children of the deceased, and Amadeo Saldana Narro, surviving father of the deceased, Plaintiff–Appellant, v. Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant. Olga Paulina Chiba Quispe, Personal Representative of the Estate of Peter Michael Liza Chiba, Deceased, for her own benefit as the surviving mother and for the benefit of Jose Armando Liza Nunton, surviving father of the deceased, Plaintiff–Appellant, v. Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant. Brenda Vilma Hoyle De Castro, Personal Representative of the Estate of Miguel Max Castro Gutierrez, Plaintiff–Appellant, v. Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant. Giovanna Patricia Otero De Vasquez, Personal Representative of the Estate of Jhon Henry Vasquez Lopez, Deceased, for her own benefit as the surviving spouse and for the benefit of Angie Patricia Vasquez Otero, Henry Gianpierre Vasquez Otero, Karen Elizabeth Vasquez Otero, and Jhon Henry Vasquez Otero, surviving children of the deceased, and Pablo Wilfredo Vasquez Meza, surviving father of the deceased, and Catalina Lopez De Vasquez, surviving mother of the deceased, Plaintiff–Appellant, v. Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, and Bobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.
• Court: Oregon Court of Appeals

266 Or.App. 24

337 P.3d 169

Rosa Aurelia Palacios ESPINOZA, Personal Representative of the Estate of Victor Andres Espinoza Horna, Deceased, for her own benefit as the surviving spouse and for the benefit of Micaela Ariana Espinoza and Mariam Andrea Espinoza, surviving children of the deceased, Plaintiff–Appellant

v.EVERGREEN HELICOPTERS, INC., an Oregon corporation, Defendant–RespondentandBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

Erika Consuelo Machado Merino, Personal Representative of the Estate of Juan Francisco Garcia Rubio, Deceased, for her own benefit as the surviving spouse and for the benefit of Macarena Garcia Machado and Mariono Garcia Santolalla, surviving children of the deceased, and Arturo Benjamin Garcia Pinillos, surviving father of the deceased, Plaintiff–Appellant

v.Evergreen Helicopters, Inc., an Oregon corporation, Defendant–RespondentandBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

July Marlene Churata Fernandez, Personal Representative of the Estate of Christian Martin Querevalu Quiroz, Deceased, for her own benefit as the surviving spouse and for the benefit of Camila Milagros Querevalu Churata, surviving child of the deceased, Freddy Quiroz Dulanto De Querevalu, and Rolandi Querevalu Suarez, surviving parents of the deceased, Plaintiff–Appellant

v.Evergreen Helicopters, Inc., an Oregon corporation, Defendant–RespondentandBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

Flor De Maria Gamboa Alvarez, Personal Representative of the Estate of Fernando Cesar Nunez Del Prado Reynoso, Deceased, for her own benefit as the surviving spouse and for the benefit of Caroline Anthuanet Nunez Del Prado Gamboa and Fernando Junior Nunez Del Prado Gamboa, surviving children of the deceased, and Margarita Severiana Reynoso Quispe and Ricardo Cesar Nunez Del Prado Saavedra, surviving parents of the deceased, Plaintiff–Appellant

v.Evergreen Helicopters, Inc., an Oregon corporation, Defendant–RespondentandBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

Flor Katherine Soto Lican, Personal Representative of the Estate of Jose Luis Saldana Eustaquio, Deceased, for her own benefit as the surviving spouse and for the benefit of Joseph Saldana Soto, Luiggi Saldana Soto, Miguel Angel Saldana Soto, Maria Elizabeth Saldana Gutierrez, and Alexandra Himena Saldana Gutierrez, surviving children of the deceased, and Amadeo Saldana Narro, surviving father of the deceased, Plaintiff–Appellant

v.Evergreen Helicopters, Inc., an Oregon corporation, Defendant–Respondent, andBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

Olga Paulina Chiba Quispe, Personal Representative of the Estate of Peter Michael Liza Chiba, Deceased, for her own benefit as the surviving mother and for the benefit of Jose Armando Liza Nunton, surviving father of the deceased, Plaintiff–Appellant

v.Evergreen Helicopters, Inc., an Oregon corporation, Defendant–RespondentandBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

Brenda Vilma Hoyle De Castro, Personal Representative of the Estate of Miguel Max Castro Gutierrez, Plaintiff–Appellant

v.Evergreen Helicopters, Inc., an Oregon corporation, Defendant–RespondentandBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

Giovanna Patricia Otero De Vasquez, Personal Representative of the Estate of Jhon Henry Vasquez Lopez, Deceased, for her own benefit as the surviving spouse and for the benefit of Angie Patricia Vasquez Otero, Henry Gianpierre Vasquez Otero, Karen Elizabeth Vasquez Otero, and Jhon Henry Vasquez Otero, surviving children of the deceased, and Pablo Wilfredo Vasquez Meza, surviving father of the deceased, and Catalina Lopez De Vasquez, surviving mother of the deceased, Plaintiff–Appellant

v.Evergreen Helicopters, Inc., an Oregon corporation, Defendant–RespondentandBobbi Crann, Personal Representative of the Estate of Alan Crann, Deceased, Defendant.

090912350, 090912777, 090913294, 091015153, 091015154, 091217035, 100202814, 100303637

A147028.

Court of Appeals of Oregon.

Argued and Submitted Jan. 03, 2013.

Decided Oct. 8, 2014.

Richard S. Yugler argued the cause for appellants. With him on the briefs were Robert B. Hopkins, Matthew K. Clarke, and Landye Bennett Blumstein LLP.

Thomas W. Sondag argued the cause for respondent. With him on the brief was Lane Powell PC.

Cody Hoesly, Larkins Vacura LLP, Kathleen Moura and Law Office of Kathleen Moura filed the brief amicus curiae for Oregon Trial Lawyers Association.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

ARMSTRONG, P.J.

This case arises out of a helicopter crash in Peru that resulted in the death of everyone on board, including eight Peruvian passengers. Plaintiffs, the personal representatives of the estates of the passengers, brought wrongful death actions in Oregon against Evergreen Helicopters, Inc. (Evergreen), an Oregon corporation that was the lessor of the helicopter and employer of the pilot. The trial court granted Evergreen's motions to dismiss plaintiffs' actions based on its conclusion that Peru was the more convenient forum in which to litigate plaintiffs' claims. In this appeal, we are asked to decide whether dismissal based on the inconvenient-forum doctrine, ox forum non conveniens, is available in Oregon, and, if it is, what standards apply to govern a trial court's application of the doctrine. Those are questions of first impression for us because no Oregon appellate court has directly confronted them before. We conclude that the inconvenient-forum doctrine is available, such that an Oregon trial court may decline to exercise its jurisdiction to try a case—based on considerations of convenience and justice—when an adequate, alternative forum is presently available in which to try the case. However, because we also conclude that the trial court relied on inappropriate factors to dismiss plaintiffs' actions, we vacate and remand to the trial court with instructions to reconsider its decision in light of our opinion.

Plaintiffs are the appointed personal representatives of the estates of eight people who died in a helicopter crash in Peru that occurred when they were being transported to a mining site during inclement weather. All eight decedents, and their personal representatives, are citizens of Peru. Evergreen is an Oregon corporation headquartered in Oregon. Evergreen acquired the subject helicopter through a sublease agreement and, in turn, leased the helicopter to a Canadian subsidiary of Helinka, a Peruvian company, which then subleased the helicopter to Helinka for use in Peru. As part of the sublease agreement, Evergreen provided pilots and maintenance personnel to work in Peru. The lead pilot of the helicopter on the day of the crash was an employee of Evergreen working in Peru under that arrangement.

Plaintiffs brought their wrongful death actions in Multnomah County, Oregon, against Evergreen based on theories of Evergreen's direct and vicarious liability in negligence for the crash.¹ In their complaints, seven of the plaintiffs alleged that Evergreen was negligent in the following ways:

“A. Failing to properly maintain, inspect, test and/or repair the subject helicopter and ensure that the subject helicopter was kept in a safe condition;

“B. Failing to properly train, supervise, and/or monitor flight crews, including pilots;

“C. Failing to properly navigate and/or operate the subject aircraft in a safe and competent manner given the prevailing weather and visibility conditions;

“D. Failing to take all emergency measures; and/or

“E. In negligently entrusting the subject helicopter.

“ * * * * *

“A. Failing to properly navigate and operate the subject helicopter in a safe and competent manner, thereby resulting in the subject crash;

“B. Failing to follow proper pre-flight and/or flight procedures given the knowledge of, or foreseeable operation of the aircraft in adverse weather; and/or

“C. Failing to warn plaintiff and/or plaintiff's decedent of the dangers associated with operation of the subject helicopter in adverse weather.”

The eighth plaintiff, Brenda Vilma Hoyle De Castro, alleged that Evergreen was negligent in the following ways:

“A. In flying the helicopter in mountainous terrain in dangerously adverse weather conditions;

“B. In flying the helicopter in mountainous terrain when weather conditions impaired visibility;“C. In failing to terminate the flight upon encountering increasingly dangerous adverse weather conditions;

“D. In failing to terminate the flight upon encountering increasingly diminished visibility;

“E. In flying into a cumulonimbus cloud in instrument meteorological conditions;“F. In failing to maintain adequate control of the helicopter.”

Evergreen moved to dismiss plaintiffs' actions under the inconvenient-forum doctrine, arguing that Peru is the more convenient forum in which to litigate plaintiffs' claims because the majority of witnesses and documents, as well as potential third-party defendants, are located in Peru and because Peruvian law should control. Plaintiffs conceded that Peru is an adequate, alternative forum, as long as Peru's applicable statute of limitation did not bar the action, but opposed the motion on several other grounds. Plaintiffs' arguments included that the inconvenient-forum doctrine is not available in Oregon, and, even if it were, dismissal is inappropriate in this case because witnesses and documents relevant to plaintiffs' claims are located in Oregon or elsewhere in the United States and because Oregon law should apply.

The trial court concluded that the inconvenient-forum doctrine was available and that it “grants the trial court discretion to dismiss an otherwise properly filed case if the court determines that an adequate alternative forum exists and that trying the action elsewhere would...