Kambury v. DaimlerChrysler Corp.

• Decision Date: 08 January 2003
• Citation: 60 P.3d 1103,185 Or.App. 635
• Parties: Dennis KAMBURY, Personal Representative of the Estate of Amy Beth Kambury, Appellant, v. DAIMLERCHRYSLER CORPORATION, a Delaware corporation; and Northwest Eagle, Inc., an Oregon corporation, Respondents, and DaimlerChrysler Motors Corporation; Chrysler Corporation; Chrysler Motors Corporation; and DaimlerChrysler AG, Defendants.
• Court: Oregon Court of Appeals

60 P.3d 1103

185 Or.App. 635

Dennis KAMBURY, Personal Representative of the Estate of Amy Beth Kambury, Appellant, v. DAIMLERCHRYSLER CORPORATION, a Delaware corporation; and Northwest Eagle, Inc., an Oregon corporation, Respondents, and DaimlerChrysler Motors Corporation; Chrysler Corporation; Chrysler Motors Corporation; and DaimlerChrysler AG, Defendants.

981208378; A107705.

Court of Appeals of Oregon.

Submitted on Remand October 16, 2002.

Decided January 8, 2003.

Robert K. Udziela and Lawrence Baron, Portland, for appellant.

Roger K. Stroup and Bodyfelt Mount Stroup & Chamberlain, Portland, for respondents.

Before EDMONDS, Presiding Judge, and KISTLER and SCHUMAN, Judges.

KISTLER, J.

In Kambury v. DaimlerChrysler Corp., 334 Or. 367, 374, 50 P.3d 1163 (2002), the Supreme Court held that, when a defective product causes a person's death, the two-year statute of limitations for product liability actions rather than the three-year statute for wrongful death actions applies to a product liability claim. The court remanded the case to us to decide which statute of limitations applies to plaintiff's other claims for relief in this action. Id. at 375, 50 P.3d 1163. We hold that the two-year statute of limitations for product liability civil actions applies to those claims and accordingly affirm the trial court's judgment.

On December 6, 1995, Amy Kambury died after the airbag in her Jeep deployed during an accident and struck her in the abdomen, causing irreversible blood loss. Slightly less than three years later, on December 1, 1998, the personal representative of her estate filed a wrongful death action against defendants. In the amended complaint, plaintiff alleged claims for product liability, negligence, breach of warranty, intentional misrepresentation, and negligent misrepresentation. Defendants moved for summary judgment on the ground that, taking the allegations in the amended complaint as true, the two-year statute of limitations for product liability claims barred all of plaintiff's claims for relief. See ORS 30.905(2). Plaintiff responded that the action was timely under the three-year statute of limitations for wrongful death actions. ORS 30.020(1). The trial court ruled that the two-year statute of limitations applied to all plaintiff's claims and granted defendants' motion.

We reversed the trial court, holding that the three-year statute for wrongful death actions rather than the two-year statute of limitations for product liability actions applies when a defective product causes a person's death. Kambury v. DaimlerChrysler Corp., 173 Or.App. 372, 21 P.3d 1089 (2001), rev'd, 334 Or. 367, 50 P.3d 1163 (2002). After the Supreme Court held that the two-year statute of limitations in ORS 30.905(2) applied to plaintiff's product liability claim, it remanded the case to us to decide whether that statute of limitations also applies to plaintiff's other claims for relief. See Kambury, 334 Or. at 375 n. 3,

50 P.3d 1163.

We begin with the terms of ORS 30.905(2). PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). That statute provides:

"Except as provided in ORS 30.907 and 30.908(1) to (4), a product liability civil action shall be commenced not later than two years after the date on which the death, injury or damage complained of occurs."

ORS 30.905(2). ORS 30.900 defines a "product liability civil action" as:

"[A] civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of:

"(1) Any design, inspection, testing, manufacturing or other defect in a product;

"(2) Any failure to warn regarding a product; or

"(3) Any failure to properly instruct in the use of a product."

The issue on remand reduces to the question whether plaintiff's claims for negligence, breach of warranty, intentional misrepresentation, and negligent misrepresentation are "product liability civil actions" within the meaning of ORS 30.900. If they are, the two-year statute of limitations set out in ORS 30.905(2) applies.

In analyzing that issue, we note that plaintiff's claims divide into two classes—those claims that arose before decedent bought the Jeep and those that arose after the purchase. See Erickson Air-Crane Co. v. United Tech. Corp., 303 Or. 281, 289, 735 P.2d 614,

on recons., 303 Or. 452, 736 P.2d 1023 (1987) (drawing that distinction). As to the first class of claims, we conclude that each of those claims is a product liability civil action within the meaning of ORS 30.900. According to the allegations in the amended complaint, each claim was brought against the manufacturer or seller of a product for damages for a death that allegedly arose out of a defect in a product, a failure to warn regarding the product, or a failure to instruct the decedent in the product's use.

Not only does that conclusion follow from the plain language of the statute, see PGE, 317 Or. at 610-11,

859 P.2d 1143, but it also follows from our cases. In Marinelli v. Ford Motor Co., 72 Or.App. 268, 696 P.2d 1,

rev. den., 299 Or. 251, 701 P.2d 784 (1985), the plaintiff stated claims for strict liability and negligence based on a defective product. The defendants claimed, and the trial court agreed, that the action was barred by ORS 30.905(1), the subsection that sets out the period of ultimate repose for product liability actions. On appeal, the plaintiff argued that, even if the strict liability claim were barred, ORS 30.905(1) did not apply to his negligence claim. We rejected that argument, agreeing with the defendant that the term "product liability civil action," as defined by ORS 30.900, embraces all theories a plaintiff can claim in an action based on a product defect. Id. at 273, 696 P.2d 1. We noted that nothing in the language of ORS 30.900 suggested that the statute was intended to apply to defects that give rise to strict liability but not to defects or failures that result from negligence. Id.; see also Jamison v. Spencer R.V. Center, Inc., 98 Or.App. 529, 779 P.2d 1091 (1989) (reaching the same conclusion).¹

The Ninth Circuit, construing Oregon's product liability statutes, has reached a similar conclusion. For instance, in Philpott v. A.H. Robins Co., Inc., 710 F.2d 1422 (9th Cir.1983), the plaintiff brought a suit for negligence, strict liability, breach of warranty, and fraudulent misrepresentation. The district court held that all her actions were time barred by the two-year limitation in ORS 30.905(2). On appeal, the plaintiff argued that the court erred in holding that the statute applied to all her claims, including her intentional torts. The Ninth Circuit held that "the broad language of ORS 30.900 [defining product civil liability action] can reasonably be construed as encompassing all Philpott's product related claims." Id. at 1424. Similarly, in Bancorp Leasing & Fin. Corp. v. Agusta Aviation, 813 F.2d 272, 277 (9th Cir.1987), the Ninth Circuit held that the plaintiff's claims for strict liability, negligence, and breach of warranty were all encompassed within the two-year statute of limitations provided for by ORS 30.905(2). Although a federal court's interpretation of a state statute is not binding on us, we agree with the Ninth Circuit's reasoning in this regard.² The terms of ORS 30.900, as interpreted by the case law, make clear that all of plaintiff's claims that arose either before or on the date that decedent purchased defendants' car are subject to and barred by the two-year statute of limitations for product liability civil actions. See ORS 30.905(2).

We turn to plaintiff's claims that arose after decedent purchased the car. In the amended complaint, plaintiff alleged:

"In addition to the foregoing [specifications of negligence], Defendants were negligent in failing to provide adequate warnings.

This failure occurred both at the time [decedent] purchased the subject vehicle and thereafter on a continuing basis up to and including the date of [decedent's] death. Specifically, Defendants were negligent in one or more of the following particulars:

"a) In failing to warn [decedent] that the driver's side air bag posed a risk of serious injury or death to a properly belted driver seated close to the air bag module.

"b) In failing to warn occupants to position the seat as far back as possible from the steering wheel.

"c) In failing to effectively warn occupants to avoid sitting in close proximity to the steering module by placing warnings on the sun visor, utilizing video demonstrations, an/or utilizing warning lights.

"d) In failing to warn occupants of the size and speed of the deploying driver's air bag."³

Relying on Erickson Air-Crane Co., 303 Or. at 289, 735 P.2d 614, plaintiff argues that the claim that defendants failed to warn decedent after she purchased the car is not a product liability civil action within the meaning of ORS 30.900. It follows, plaintiff reasons, that that aspect of the negligence claim is not subject to the statute of limitations set out in ORS 30.905 but is instead subject to the three-year statute of limitations for wrongful death actions.

Two Supreme Court cases bear on our resolution of this issue. In Erickson Air-Crane Co., the plaintiff brought a negligence action against a helicopter manufacturer more than 10 years after it purchased the helicopter. 303 Or. at 284-85, 735 P.2d 614. Six years after it bought the helicopter, the defendant's representatives told the plaintiff that a compressor disk had a useful safe life of 6,000 hours, when the useful safe life was actually 4,000 hours. Id. at 285, 735 P.2d 614. The compressor disk failed after the helicopter had been used 4,300 hours, causing the helicopter to crash. One person was killed and another injured, and the plaintiff filed an action, alleging that the defendant had been negligent in "providing erroneous information, in failing to warn [the] plaintiff that the 6,000-hour figure was...