Hughes v. City of Portland

• Decision Date: 13 February 2013
• Docket Number: 100913654,A149379.
• Citation: 255 Or.App. 271,296 P.3d 642
• Parties: Scott HUGHES, Plaintiff–Appellant, v. CITY OF PORTLAND, Defendant–Respondent.
• Court: Oregon Court of Appeals

255 Or.App. 271

296 P.3d 642

Scott HUGHES, Plaintiff–Appellant,

v.CITY OF PORTLAND, Defendant–Respondent.

100913654; A149379.

Court of Appeals of Oregon.

Argued and Submitted July 30, 2012.

Decided Feb. 13, 2013.

Theresa M. Kohlhoff, Portland, argued the cause for appellant. With her on the brief was Kohlhoff & Welch.

Harry Auerbach, Chief Deputy City Attorney, argued the cause and filed the brief for respondent.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

HADLOCK, J.

Plaintiff brought this personal injury action against defendant, City of Portland, alleging that he was injured in a four-vehicle accident caused by one of defendant's employees. The trial court granted summary judgment for defendant after ruling that plaintiff had failed to give defendant timely notice of his claim under the Oregon Tort Claims Act (OTCA). Plaintiff appeals, arguing first that defendant's motion for summary judgment was not timely filed. We reject that assignment of error without discussion. On the merits, plaintiff argues that defendant had actual notice of the claim under ORS 30.275(6) and, alternatively, that the notice requirement was satisfied under ORS 30.275(3)(d) because defendant paid part of the claim. We agree, at least in part, with plaintiff;s latter argument. The summary judgment record includes evidence that defendant paid part of plaintiff's claim. It follows that there is a genuine issue of material fact that precludes summary judgment. We therefore reverse.

When reviewing a grant of summary judgment, we view the facts in the light most favorable to the nonmoving party—in this case, plaintiff. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). On November 20, 2008, James Hamel, one of defendant's employees, was driving a truck owned by defendant on a highway when traffic slowed. Hamel hit the truck in front of him, pushing that truck into the car ahead of it, which, in turn, hit a pickup truck. Plaintiff was a passenger in the pickup, which was driven by Michael Bruce. Plaintiff sustained substantial injuries as a result of the accident.

Bruce's pickup was insured by State Farm Insurance. Within a few days after the accident, State Farm opened personal injury protection (PIP) claims for Bruce and plaintiff. On December 1, 2008, State Farm sent defendant's risk-management office a letter providing the date, location, and a brief description of the accident and stating, “We are handling this claim on behalf of our insured and at its conclusion will be seeking reimbursement from you for our expenditures.” That letter listed Michael Bruce as State Farm's insured, but did not identify plaintiff as a claimant. However, four days later, State Farm sent another letter listing the same claim number and date of loss, and identifying plaintiff as the injured party. The letter also stated that it served as notice to defendant of State Farm's “subrogation or reimbursement rights under Personal Injury Protection” and requested reimbursement for any payments that it made under the PIP claim. State Farm also sent defendant a similar letter requesting reimbursement for payments related to Bruce's PIP claim. Neither letter indicated that State Farm had actually made any payments under the PIP claims; both letters included a list of PIP claim types and stated that the dollar amounts were “pending.”

Defendant's Risk Management Division assigned the case to Randy Stenquist, a claims analyst, who created a risk-management file related to the accident. Stenquist's handwritten file notes indicate that he and State Farm were in contact at least twice in 2009, on March 31 and May 20. The notes from the latter contact state that plaintiff's PIP claim was still open and that, to date, $532.11 had been paid under the claim. Other documentation in the summary judgment record confirms that the payment on plaintiff's claim was for medical expenses.

On January 28, 2010, State Farm sent defendant a letter seeking to recover a total of $636.11. Handwritten notes—presumably Stenquist's—on the copy of the letter in the record state that $532.11 of that total was related to plaintiff's claim and the remaining $104.00 was related to Bruce's claim. Eight days later, defendant issued a check to State Farm for $636.11.

Plaintiff contacted Stenquist to discuss his claim for the first time on March 24, 2010. According to Stenquist's notes, they discussed the fact that the statute of limitations on any legal claim by plaintiff would elapse that November. Stenquist also indicated that he had mailed plaintiff a claim form. Plaintiff filled out the form and returned it to defendant in April 2010. Defendant did not pay any additional amounts in connection with plaintiff's claim.

Plaintiff brought the present negligence action in September 2010, seeking more than $125,000 in damages. In its answer, defendant asserted as an affirmative defense that plaintiff had failed to give timely tort-claim notice as required by ORS 30.275. Defendant later moved for summary judgment on that ground. In response to defendant's motion, plaintiff argued that defendant had actual notice of the claim and, alternatively, that the notice requirement was satisfied by defendant's payment of the PIP claim. The trial court agreed with defendant that plaintiff had not given timely notice. Accordingly, it granted the motion and entered a judgment dismissing plaintiff's claim with prejudice.

On appeal, plaintiff renews the arguments that he made below. Because it is dispositive, we discuss only plaintiff's contention that the notice requirement in ORS 30.275 was satisfied by defendant's payment of the PIP claim. The “payment” provision is found at ORS 30.275(3)(d). Because the context of the provision is necessary to the proper construction of it, we quote the statute at some length:

“(1) No 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 maintained unless notice of claim is given as required by this section.

“(2) Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:

“(a) For wrongful death, within one year after the alleged loss or injury.

“(b) For all other claims, within 180 days after the alleged loss or injury.

“(3) Notice of claim required by this section is satisfied by:

“(a) Formal notice of claim as provided in subsections (4) and (5) of this section;

“(b) Actual notice of claim as provided in subsection (6) of this section;

“(c) Commencement of an action on the claim by or on behalf of the claimant within the applicable period of time provided in subsection (2) of this section; or

“(d) Payment of all or any part of the claim by or on behalf of the public body at any time.

“(4) Formal notice of claim is a written communication from a claimant or representative of a claimant containing:

“(a) A statement that a claim for damages is or will be asserted against the public body or an officer, employee or agent of the public body;

“(b) A description of the time, place and circumstances giving rise to the claim, so far as known to the claimant; and

“(c) The name of the claimant and the mailing address to which correspondence concerning the claim may be sent.

“ * * * * *

“(6) Actual notice of claim is any communication by which any individual to whom notice may be given as provided in subsection (5) of this section or any person responsible for administering tort claims on behalf of the public body acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body or an officer, employee or agent of the public body.”

(Emphasis added.) The subsection at issue here, ORS 30.275(3)(d), provides that the notice requirement is satisfied by “[p]ayment of all or any part of the claim * * *.” At the outset, we must determine what the legislature intended by “the claim.”

In Flug v. University of Oregon, 335 Or. 540, 553–54, 73 P.3d 917 (2003), the Supreme Court held that ORS 30.275(6)—which defines “actual notice”—requires a communication that warns of the plaintiff's intent to bring “a claim.” The communication need not specify precisely what claim, although it must also describe the time, place, and circumstances giving rise to “the claim”—that is, “the specific claim or claims that a plaintiff ultimately asserts.” Id. at 553, 73 P.3d 917. Accordingly, as used in subsection (6), “a claim” refers only to some claim without specificity, and “the claim” refers to the claim or claims that the plaintiff ultimately asserts against the public body.

As a matter of statutory interpretation, we presume that, when the legislature uses the same term throughout a statute, it intends for it to have the same meaning throughout the statute. PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993). Nothing in the text, context, or legislative history undermines the assumption that “the claim” has the same meaning throughout ORS 30.275. See Mid–Century Ins. Co. v. Perkins, 344 Or. 196, 211, 179 P.3d 633 (2008) (courts are not bound by the assumption that words have the same meaning in related statutory provisions “if an examination of the text and context of the statute reveals that the word, in fact, does have more than one meaning”). It follows that, under paragraph (3)(d), payment of all or any part of “the claim” refers to payment of all or part of the specific claim or claims that the plaintiff ultimately asserts against the public body.

Plaintiff had not yet made any claim against defendant when defendant reimbursed State Farm for the PIP...