Griffin By and Through Stanley v. Tri-County Metropolitan Transp. Dist. of Oregon

• Decision Date: 24 May 1994
• Docket Number: TRI-COUNTY
• Citation: 318 Or. 500,870 P.2d 808
• Parties: , 5 NDLR P 418 Joe GRIFFIN, By and Through Doug STANLEY, Personal Representative of the Estate of Joe Griffin, Deceased, Respondent on Review, v.METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, an Oregon municipal corporation, Petitioner on Review, and James Cowen and Donald Denson, Defendants. CC A8902-01014; CA A64191; SC S39510, S40017.
• Court: Oregon Supreme Court

Page 808

870 P.2d 808

318 Or. 500, 5 NDLR P 418

Joe GRIFFIN, By and Through Doug STANLEY, Personal Representative of the Estate of Joe Griffin, Deceased, Respondent on Review, v. TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, an Oregon municipal corporation, Petitioner on Review, and James Cowen and Donald Denson, Defendants.

CC A8902-01014; CA A64191; SC S39510, S40017.

Supreme Court of Oregon.

Argued and Submitted Aug. 30, 1993.

Decided April 7, 1994.

Reconsideration Denied May 24, 1994.

Jeffrey M. Batchelor, Portland, argued the cause and filed the petitions for petitioner on review.

Lori Irish Bauman, Portland, argued the cause and filed the responses for respondent on review.

David K. Allen, Jennifer Kimble, and Shawn Koch, Salem, filed a brief for amicus curiae Cascade Aids Project, Inc.

John Paul Graff, of Graff & O'Neil, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Ass'n.

James N. Westwood, of Miller, Nash, Wiener, Hager & Carlsen, Portland, filed a brief for amici curiae Portland Dist. 1J, League of Oregon Cities, Ass'n of Oregon Counties, and Oregon School Boards Ass'n.

Before CARSON, C.J., PETERSON, ^* GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.

GILLETTE, Justice.

The issue in this case is whether the $100,000 liability limit in the pre-1989 version of the Oregon Tort Claims Act applies to attorney fees and costs awarded against a public body in an employment discrimination action that arose at the time that the limit was in effect. We hold that the limit applies.

Defendant Tri-County Metropolitan Transportation District of Oregon (Tri-Met) is a municipal corporation that is subject to the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300. ¹ Plaintiff was employed by Tri-Met as a bus driver and dispatcher from 1976 to 1989. In 1989, plaintiff brought this action against Tri-Met, alleging that Tri-Met had engaged in an unlawful employment practice in violation of ORS 659.425(1). ² A jury returned a verdict awarding plaintiff $500,000 in compensatory damages. Applying the liability limit in ORS 30.270(1)(b) (1985) (set out infra ), the trial court entered judgment in the amount of $100,000. The trial court then ruled that the limit did not apply to an award of attorney fees and costs. ³ Consequently, the court, in a separate order, awarded plaintiff attorney fees and costs in excess of $200,000.

Tri-Met appealed to the Court of Appeals, assigning various errors. Among other things, Tri-Met contended in the Court of Appeals that the trial court erred in awarding attorney fees and costs in addition to the $100,000 already awarded as damages. The Court of Appeals disagreed, holding that awards of attorney fees and costs were not intended to be included within the liability limit in the OTCA. Griffin v. Tri-Met, 112 Or.App. 575, 584, 831 P.2d 42 (1992). We allowed Tri-Met's petition for review in order to address that issue.

While Tri-Met's petition for review was pending before this court, the Court of Appeals entered an order allowing plaintiff attorney fees, costs, and disbursements on appeal in the amount of $55,496.75. Tri-Met filed a second petition seeking review of the attorney fee and costs award in that order. We allowed review and consolidated the cases for argument and opinion.

We begin by clarifying why the pre-1989 version of ORS 30.270 applies to this case. Until 1987, ORS 30.270(1) provided:

"Liability of any public body or its officers, employes or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:

"(a) $50,000 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) $100,000 to any claimant for all other claims arising out of a single accident or occurrence.

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

In 1987, the legislature amended ORS 30.270(1) to provide in part:

"Liability of any public body or its officers, employes or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:

" * * * * *

"(b) $100,000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $100,000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed $100,000.

"(c) $500,000 for any number of claims arising out of a single accident or occurrence."

Or.Laws 1987, ch. 915, § 13 (amendments emphasized). The 1987 amendments were to apply "only to claims that accrue on or after January 1, 1989." Id. § 14.

In this case, plaintiff argued in the trial court that the amended version of the statute should apply because, according to plaintiff, his claim did not "accrue" until after January 1, 1989. The trial court rejected that argument and applied the pre-1989 version of the statute. Plaintiff assigned that ruling as error on cross-appeal, but the Court of Appeals declined to consider plaintiff's argument because, according to that court, "plaintiff failed to raise this issue in any way in the court below." Griffin v. Tri-Met, supra, 112 Or.App. at 585, 831 P.2d 42.

The Court of Appeals was wrong factually; plaintiff did raise the issue in the trial court. ⁴ Plaintiff also raised the issue in this court in a supplemental response filed after this court had allowed Tri-Met's petition for review. We therefore address the issue. ⁵

As noted, the 1987 amendments to ORS 30.275 apply "only to claims that accrue on or after January 1, 1989." (Emphasis supplied.) Here, plaintiff has asserted a single claim of employment discrimination. The question, therefore, is whether that claim "accrued" on or after January 1, 1989. "When used with reference to a cause of action [the word 'accrue'] means when an action may be maintained thereon. [The claim] accrues whenever one person may sue another." Berry v. Branner, 245 Or. 307, 312, 421 P.2d 996 (1966) (emphasis deleted).

Plaintiff's fourth amended complaint alleges instances of discrimination by Tri-Met beginning in October 1987 and continuing through his allegedly unlawful termination in December 1989. Plaintiff contends that his claim did not accrue until his termination in December 1989. According to the complaint, however, plaintiff filed a parallel discrimination claim with the Bureau of Labor and Industries in 1988. Moreover, plaintiff filed his first complaint in the present action in February 1989. We need not decide which of the discriminatory events alleged by plaintiff caused his claim to accrue. It is sufficient here to hold that the claim had accrued at least by the time plaintiff filed his complaint with the Bureau of Labor and Industries; plaintiff's termination in December 1989 was not essential to the accrual of his claim. It follows that the pre-1989 version of ORS 30.270 applies to this case.

Before proceeding to the central issue, we address an argument raised by amicus curiae Oregon Trial Lawyers Association. Amicus argues that plaintiff's action was not subject to the OTCA at all, because engaging in an unlawful employment practice in violation of ORS 659.425(1)--the gravamen of this action--is not a "tort" within the meaning of the OTCA. For the following reasons, we disagree.

For purposes of the OTCA, a "tort" is

"the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, * * * which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy."

ORS 30.260(8). This court has held that ORS 659.425(1) "imposes on an employer a duty to make reasonable accommodation for its employees' physical and mental impairments." Braun v. American International Health, 315 Or. 460, 470, 846 P.2d 1151 (1993). That "duty to make reasonable accommodation" is a "legal duty that is imposed by law, other than a duty arising from contract or quasi-contract" within the meaning of ORS 30.260(8). Moreover, ORS 659.121 provides "a civil right of action for damages," ORS 659.121(2), and "for a protective remedy," ORS 659.121(1), for persons claiming "injury" due to violations of ORS 659.425(1). Accordingly, the unlawful employment practice that was the basis for this action constituted a "tort" within the meaning of the OTCA, and plaintiff's action was therefore subject to the provisions of the OTCA. Cf. Urban Renewal Agency v. Lackey, 275 Or. 35, 38, 549 P.2d 657 (1976) (holding that a state agency's breach of its statutory duty to assist individuals in reestablishing their business was a "tort" within the meaning of the OTCA).

We proceed next to the central issue in the case, namely, whether the $100,000 liability limit in ORS 30.270(1)(b) (1985) applies to attorney fees and costs awarded against a public body in an employment discrimination action. ORS 30.270(1)(b) (1985) provides that the "[l]iability of any public body * * * on claims within the scope of ORS 30.260 to 30.300 [i.e., the OTCA] shall not exceed * * * $100,000 to any claimant for all [non-property] claims arising out of a single accident or occurrence." (Emphasis supplied.) Plaintiff concedes that "[a] tort lawsuit against a public body is necessarily a 'claim' within the scope of the OTCA." Because the violation of ORS 659.425(1) alleged in this action was a "tort" within the meaning of the OTCA, see supra, 318 Or. at 506-07, 870 P.2d at 811, the present action was a "tort" action. Therefore, this action was necessarily a "claim within the scope of the OTCA." The only question remaining is whether, in limiting the "liability" of a public body on such a tort "claim," the legislature intended to limit attorney fees and costs awarded against the public...