Lawson v. Hoke

• Decision Date: 15 October 2003
• Citation: 77 P.3d 1160,190 Or. App. 92
• Parties: Elisa LAWSON, Respondent, v. Spencer HOKE, Appellant.
• Court: Oregon Court of Appeals

77 P.3d 1160

190 Or. App. 92

Elisa LAWSON, Respondent, v. Spencer HOKE, Appellant.

0101-00766, A117388.

Court of Appeals of Oregon.

Argued and Submitted June 23, 2003.

Decided October 15, 2003.

Janet M. Schroer, Portland, argued the cause for appellant. With her on the briefs were Marjorie A. Speirs and Hoffman, Hart & Wagner, LLP.

Willard Merkel, Portland, argued the cause for respondent. With him on the brief was Merkel & Associates.

Richard E. Oberdorfer, S. Patricia Oberdorfer, and Oberdorfer Law Firm LLC filed the brief amicus curiae for Oregon Trial Lawyers Association.

Benjamin M. Bloom and Hornecker, Cowling, Hassen & Heysell, L.L.P., Medford, filed the brief amicus curiae for Oregon Association of Defense Counsel.

Lisa E. Lear, Jeffrey S. Eden, John R. Bachofner, and Bullivant Houser Bailey PC, Portland, filed the brief amici curiae for Allstate Insurance Company, Oregon Mutual Insurance Company, and State Farm Insurance Company.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

BREWER, J.

Defendant appeals a judgment awarding plaintiff noneconomic damages in a negligence action arising from an automobile accident. In his answer to plaintiff's complaint, and again in a motion for summary judgment, defendant asserted that, because plaintiff did not have liability insurance at the time of the accident, ORS 18.592(1) barred her from recovering noneconomic damages.¹ The trial court ruled that ORS 18.592(1) violates plaintiff's right to a remedy under Article I, section 10, of the Oregon Constitution and interferes with her right to a jury trial under Article I, section 17. The parties then waived a jury trial, and the trial court found defendant negligent and awarded plaintiff noneconomic damages.² We review for errors of law, Trabosh v. Washington County, 140 Or.App. 159, 915 P.2d 1011 (1996), and reverse the award of noneconomic damages.

Plaintiff was injured when defendant drove through a stop sign at an intersection and collided with plaintiff's car. Plaintiff brought this action against defendant for negligence, seeking economic and noneconomic damages. Defendant asserted as an affirmative defense that ORS 18.592(1) barred plaintiff from recovering noneconomic damages. Plaintiff conceded that she did not have insurance at the time of the accident. Nevertheless, plaintiff filed a motion under ORCP 21 E to strike defendant's affirmative defense, arguing that ORS 18.592(1) violates Article I, sections 10 and 17, by depriving her of the right to recover noneconomic damages and to have that issue tried to a jury. Before the trial court ruled on plaintiff's motion, defendant filed a motion for partial summary judgment on the ground that ORS 18.592(1) barred plaintiff's recovery of noneconomic damages. In a combined order, the court granted plaintiff's motion to strike defendant's affirmative defense and denied defendant's motion for summary judgment. The parties then settled plaintiff's claim for economic damages for $4,210 and, following a bench trial in which defendant conceded his negligence, the court awarded plaintiff $5,790 in noneconomic damages based upon the parties' agreement that that amount was a reasonable sum to be awarded. This appeal followed.

Defendant makes three related assignments of error. He argues that the trial court erred in granting plaintiff's motion to strike his affirmative defense, in denying his motion for partial summary judgment, and in awarding noneconomic damages to plaintiff. In a combined argument, defendant contends that ORS 18.592(1) survives both of plaintiff's constitutional challenges.

We begin with defendant's argument that ORS 18.592(1) does not violate the remedy clause of Article I, section 10, which provides that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." The Supreme Court recently has summarized the analytical methodology applicable to a challenge to legislation under Article I, section 10:

"In Smothers v. Gresham Transfer, Inc., 332 Or. 83, 124, 23 P.3d 333 (2001), this court examined in detail the origin and meaning of the remedy clause, and held that, because Article I, section 10, guarantees a remedy for any injury to absolute common-law rights respecting person, property, or reputation, the legislature does not have the authority to deny a remedy for such injuries. The conclusions about the remedy clause outlined in Smothers define the inquiry necessary to determine whether legislative action violates that constitutional guarantee. See Jensen v. Whitlow, 334 Or. 412, 417-18, 51 P.3d 599 (2002)

(so stating). In accordance with the analytical approach of Smothers, our first step, ordinarily, is to determine whether the injury that plaintiffs have alleged is one for which the remedy clause guarantees a remedy. Smothers, 332 Or. at 124,

23 P.3d 333. If so, then the next question is whether the legislation at issue * * * abolished that remedy without providing a constitutionally adequate substitute. Id."

DeMendoza v. Huffman, 334 Or. 425, 433-34, 51 P.3d 1232 (2002)

.

Plaintiff asserts that the remedy clause guarantees a remedy for her injury and that ORS 18.592(1) abolished that remedy. Defendant advances several rationales in defense of the statute. First, he contends that plaintiff's injury is not protected by the remedy clause, because no remedy was available for such an injury in 1857, when the Oregon Constitution was adopted. Defendant reasons that, because automobiles did not exist in 1857, there was at that time no recognized remedy for injuries resulting from the negligent operation of automobiles. It follows, according to defendant, that the legislature may limit the remedies available in such cases. Alternatively, defendant argues that ORS 18.592(1) does not violate the remedy clause because the legislature did not abolish plaintiff's remedy. Rather, defendant asserts, the statutory insurance requirement is merely a condition precedent to the right to recover noneconomic damages. Finally, defendant argues that, even if ORS 18.592(1) abolished a remedy within the meaning of Article I, section 10, the remedy that remains is constitutionally adequate.

Plaintiff responds that, even though automobiles did not exist in 1857, negligence was then recognized as a cause of action, and noneconomic damages were an available remedy for negligence. According to plaintiff, the nature of the particular instrumentality with which defendant negligently caused her injuries is irrelevant for purposes of the present inquiry. Plaintiff also argues that ORS 18.592(1) does not establish a permissible condition precedent to the recovery of noneconomic damages because, under Article I, section 10, the legislature may attach conditions precedent to the enjoyment of a remedy only if the conditions may be fulfilled after the right of recovery arises. Finally, plaintiff remonstrates that economic damages alone are not a constitutionally adequate residual remedy for her legal injury.

We begin our analysis with the question whether the remedy clause guarantees a remedy for plaintiff's injury. For purposes of Article I, section 10, "injury" means "a wrong or harm for which a cause of action existed when the drafters wrote the Oregon Constitution in 1857." Smothers, 332 Or. at 124, 23 P.3d 333. A common-law cause of action for negligence generally existed at that time. Id. at 129, 23 P.3d 333. However, Article I, section 10, preserves a remedy only where "the common law of Oregon would have recognized an action for negligence under the circumstances of [the] case." Id. at 128, 23 P.3d 333 (emphasis added). Thus, defendant argues, we must focus specifically on the type of negligence claim that plaintiff asserts.

The Supreme Court has never stated how closely a cause of action must resemble one that existed in 1857 in order to be sheltered by Article I, section 10. However, the court's decisions in other contexts are instructive. In Lakin v. Senco Products, Inc., 329 Or. 62, 82, 987 P.2d 463,clarified on recons., 329 Or. 369, 987 P.2d 476 (1999), the court held that "Article I, section 17, guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and in cases of like nature." (Emphasis added.) See also State v. 1920 Studebaker Touring Car et al., 120 Or. 254, 263, 251 P. 701 (1926) ("[T]he constitutional right of trial by jury is not to be narrowly construed, and is not limited strictly to those cases in which it had existed before the adoption of the Constitution, but is to be extended to cases of like nature as they may hereafter arise.").

Similarly, in the context of crimes involving speech, the court has held that Article I, section 8, does not shield the "use of words in the course of what indisputably would have been a conventional crime when Oregon's Bill of Rights was adopted * * *." State v. Robertson, 293 Or. 402, 433, 649 P.2d 569 (1982). The court held:

"The legislature, of course, may revise these crimes and extend their principles to contemporary circumstances or sensibilities. If it was unlawful to defraud people by crude face-to-face lies, for instance, free speech allows the legislature some leeway to extend the fraud principle to sophisticated lies communicated by contemporary means. Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle."

Id. at 433-34, 649 P.2d 569.

Article I, section 8, and Article I, section 17—like Article I, section 10—are original constitutional guarantees contained in the Oregon Bill of Rights. There is no reason to believe that the remedy clause does not, in like manner, safeguard "extensions" that remain true to its "initial principle." We conclude that that is ...