Marinelli v. Ford Motor Co., s. A8309

• Decision Date: 19 April 1985
• Docket Number: Nos. A8309,s. A8309
• Citation: 72 Or.App. 268,696 P.2d 1
• Parties: Leonard F. MARINELLI, Appellant, v. FORD MOTOR COMPANY, Marv Tonkin Ford Sales, Inc., Owen Chevrolet-Olds, Inc., Respondents, and Rodney Stephen, Adel Matar, M.D., and Emanuel Lutheran Charity Board, dba Emanuel Hospital, Defendants. 06099; CA A31727.
• Court: Oregon Court of Appeals

Page 1

696 P.2d 1

72 Or.App. 268

Leonard F. MARINELLI, Appellant, v. FORD MOTOR COMPANY, Marv Tonkin Ford Sales, Inc., Owen Chevrolet-Olds, Inc., Respondents and Rodney Stephen, Adel Matar, M.D., and Emanuel Lutheran Charity Board, dba Emanuel Hospital, Defendants.

Nos. A8309 06099; CA A31727.

Court of Appeals of Oregon.

Argued and Submitted Jan. 4, 1985.

Decided Feb. 27, 1985.

Reconsideration Denied April 19, 1985.

J. Randolph Pickett, Portland, argued the cause for appellant. With him on the briefs were Ron D. Bailey and Sandra A. Hansberger, Portland.

Mildred J. Carmack, Portland, argued the cause for respondent Ford Motor Company. With her on the brief were Roland F. Banks, Jr., Ancer L. Haggerty, and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Lee Aronson, Portland, argued the cause for respondents Marv Tonkin Ford Sales, Inc., and Owen Chevrolet-Olds, Inc. With him on the brief was Holmes, DeFranco & Schulte, P.C., Portland.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Plaintiff brought this action against defendants Ford Motor Company, Marv Tonkin Ford Sales and Owens Chevrolet-Olds, contending that their activities in connection with the design, manufacture, sale, testing and inspection of a pickup truck contributed to plaintiff's injuries when an accident occurred while he was a passenger in the vehicle. Plaintiff stated claims for strict liability and negligence. The vehicle was "first purchased for use or consumption," ORS 30.905(1), in October, 1974. ¹ Plaintiff was injured in February, 1983. The trial court granted defendants' motions to dismiss on the ground that the action is barred by ORS 30.905(1), the eight-year statute of ultimate repose for "product liability civil actions." Plaintiff appeals, and we affirm. ²

ORS 30.905(1) provides:

"Notwithstanding ORS 12.115 or 12.140 and except as provided in subsections (2) and (3) of this section, a product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption."

ORS 30.900 states:

"As used in ORS 30.900 to 30.920, 'product liability civil action' means 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."

Both provisions were enacted by Oregon Laws 1977, chapter 843. Section 5 of that act provides:

"This Act takes effect on January 1, 1978, and applies only to causes of action, claims, rights or liabilities accruing after December 31, 1977."

Plaintiff argues in the first assignment of error that, although he was injured after the 1977 act took effect, the act should not be construed to apply to an action involving a product that was sold to a consumer in 1974. The first point plaintiff makes is that "the Oregon Supreme Court has indicated a reluctance to apply statutes retroactively," citing, e.g., Joseph v. Lowery, 261 Or. 545, 495 P.2d 273 (1972). However, the principle that retroactive application of statutes that affect substantive rights is not preferred has little if any relevance to the interpretation of a statute that specifies the time when it becomes applicable. See Whipple v. Howser, 291 Or. 475, 632 P.2d 782 (1981). The statute here specifies that it applies "to causes of action, claims, rights or liabilities accruing after December 31, 1977."

Plaintiff acknowledges that his cause of action did not accrue until the accident occurred in 1983. He contends, however, that he had "rights" and "claims" and that defendants had "liabilities" that existed as of the time the vehicle was initially sold in 1974. Plaintiff refers to the Supreme Court's statement in Heaton v. Ford Motor Co., 248 Or. 467, 471, 435 P.2d 806 (1967), that

"* * * [t]he user has the right to expect a reasonably safe design and reasonable quality controls in fabrication according to that design. * * * " (Emphasis supplied.)

Plaintiff concludes:

"It follows that the purchaser or user's right to bring a claim based either on negligence or products liability principles accrued at the time of purchase of the product and carried with it a right to bring such action within 10 years of the date of the manufacture or sale. See ORS 12.115. Defendants also had a 'liability' (that of seller) which also accrued at the time of purchase."

Defendants argue, in effect, that the terms "causes of action," "claims," "rights" and "liabilities," as used in Oregon Laws 1977, chapter 843, section 5, refer to interests that arise from injuries or that relate to litigation that has been or can be brought. According to defendants, the terms do not encompass an owner's or user's abstract interests in the safety of a product that was purchased before January 1, 1978, but had produced no injury by that date. Ford states in its brief:

"The most likely reason for including that additional language is to cover all concepts related to that of a 'cause of action'--concepts such as that of a 'claim for relief' (at that time a concept embodied in federal practice but not yet in that of this state), a 'right of action,' and the converse idea of the liability of one party to another. The most significant thing about the 1977 legislature's choice of language in section 5 of chapter 843 is that a claim, right or liability must have accrued on or before December 31, 1977 in order to make the new statute of repose inapplicable. A claim for relief, right of action, or liability does not 'accrue' until it is enforceable by action. See, e.g., Seattle-First Nat'l Bk. v. Ore. Pac. Ind., 262 Or 578, 583, 500 P.2d 1033 (1972)." (Emphasis Ford's; footnote omitted.)

Plaintiff replies:

"* * * Respondent argues the legislature really intended to say 'claim for relief', 'right of action' and 'the converse idea of the liability of one party to another.' Had the legislature intended this language, the legislature would have used it.

"* * * If 'accrue' in the instant case, when applied to the words 'cause of action', 'rights', 'claims', or 'liabilities' means that a cause of action must exist, why did the legislature include the words 'rights, liabilities, claims' when 'cause of action' says it all? * * * "

Plaintiff is correct in maintaining that "claims," "rights" and "liabilities" presumably mean something different than "cause of action." However, we do not agree with plaintiff's understanding of what they mean. The four terms are used in the same statutory context and, of the four, only the word "rights" could--at least from an abstract definitional standpoint--refer to something that "accrues" before there is an injury or a basis for bringing an action. The word could also refer to rights that arise out of an injury or to litigation-related rights. We conclude that, like the words that surround it in the statute, the legislature intended the word "rights" to have the latter meaning. In addition to the context of section 5 itself, the act as a whole militates toward that conclusion. All of the substantive provisions of the act relate to litigation or to the allowable time for bringing an action in a product liability case. We do not think that the legislature intended a single word in the section of the act that prescribes its effective date to refer to the non-occurrence of an event that must have occurred before any other word in the act can have any meaning. We disagree with plaintiff's argument that ORS 30.905(1) cannot apply to actions involving products that were first purchased for use or consumption before January 1, 1978, and we therefore reject his first assignment of error.

Plaintiff's second assignment is that the trial court erred by dismissing his negligence claims on the basis of ORS 30.905(1). Plaintiff argues that the statute applies only to allegations of strict liability in tort. Defendants argue, inter alia, that the term "product liability civil action," as defined by ORS 30.900, embraces all theories a plaintiff can adduce in an action based on a product defect. ³ Defendants' argument...