Miller v. Pacific Trawlers, Inc.

• Decision Date: 15 March 2006
• Docket Number: 0103-02176; A118909.
• Parties: Rick E. MILLER, Respondent-Cross-Appellant, v. PACIFIC TRAWLERS, INC., an Oregon corporation, Appellant-Cross Respondent, and F/V Cape Foulweather, a vessel, Defendant.
• Court: Oregon Court of Appeals

131 P.3d 821

204 Or. App. 585

Rick E. MILLER, Respondent-Cross-Appellant, v. PACIFIC TRAWLERS, INC., an Oregon corporation, Appellant-Cross Respondent, and F/V Cape Foulweather, a vessel, Defendant.

0103-02176; A118909.

Court of Appeals of Oregon.

Argued and Submitted June 10, 2004.

Decided March 15, 2006.

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Lisa E. Lear, Portland, argued the cause for appellant-cross-respondent. With her on the briefs were Jess B. Millikan and Bullivant Houser Bailey PC, San Francisco.

David N. Goulder, Portland, argued the cause for respondent-cross-appellant. With him on the briefs were Jeffrey S. Mutnick, Robert B. Hopkins, and Landye Bennett Blumstein LLP.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

LINDER, J.

Plaintiff was involved in an accident in which he suffered serious permanent injury to both of his legs. As a result of that accident, plaintiff filed an action under the federal Jones Act, 46 USC app section 688(a), against his former employer, defendant Pacific Trawlers, Inc., alleging negligence.¹ After a trial, the jury returned a verdict in plaintiff's favor, although it also found that plaintiff was four percent at fault for his injuries. Defendant now appeals; plaintiff, in turn, cross-appeals. For the reasons explained below, we affirm on both the appeal and the cross-appeal.

I. BACKGROUND

Defendant Pacific Trawlers is an Oregon corporation engaged in the fishing business. Defendant owns and operates one vessel—the Cape Foulweather. Plaintiff had been employed by Pacific Trawlers for over 10 years before the accident in question, eventually becoming captain of the Cape Foulweather.

The Cape Foulweather is used to fish for both groundfish and shrimp. As a result, different equipment must be installed on the boat depending on the type of fish intended to be caught. To fish for shrimp, large, steel-framed "doors" must be moved out of a storage area located a few hundred yards from the dock and installed on the boat. Each door, built specifically for dragging the ship's nets through the water for shrimp fishing, is approximately 8-by 9-feet and weighs approximately 1,500 pounds.² A 12-foot-long rope, referred to as a "lifting strap," is permanently affixed to the top of the door for lifting and lowering the door between the water and the vessel deck.

Typically, boom trucks are used to transport the doors from the storage area to the ship. Plaintiff had previously worked with Dennis Cutting, the president of Pacific Trawlers, using a forklift—rather than a boom truck—to move the steel doors. It was Cutting's practice to slide the forks of the forklift through the slats in the top of the doors and then to transport the doors in an upright, hanging position. When transporting the doors in that manner, the only way that the operator of the forklift can see is by peering through the gaps in the slats, which greatly diminishes visibility.

On the day of the accident, plaintiff, with the assistance of William Brooks, the captain of another vessel owned by one of Cutting's other corporations, was attempting to move several of the large, steel-framed doors to the Cape Foulweather for installation. Because no boom trucks were available, plaintiff used a forklift to move the doors. The first three doors were moved without incident. But the last door to be moved from storage ended up flat in the mud, with its weighted end nearest the forklift. To pull the door upright so that it could be "speared" by the forklift, plaintiff tied the lifting strap to the forklift. The lifting strap remained tied to the forklift while Brooks moved it. After leaning that door against the other doors, and without untying the lifting strap, Brooks, who was driving the forklift, suddenly backed up, pulling the door down onto plaintiff as he was walking away from the door.

The force of the door knocked plaintiff to the ground, face first. The impact shattered plaintiff's right knee, "exploded" his right femur through the skin of his leg, and crushed the nerves of both legs. During the four years immediately after the accident, plaintiff underwent seven surgeries in an attempt to repair the damage. As a result of those numerous attempts to stabilize his leg using screws and metal plates, plaintiff has approximately 44 holes in the bone of his right leg. Plaintiff's right leg is now two inches shorter than his left, causing degenerative back changes and additional pain. It is possible that plaintiff could ultimately require an above-the-knee amputation.

II. DISCUSSION

On appeal, defendant raises five assignments of error, three of which we address. First, defendant argues that the trial court erred in denying its motion for a change of venue. Second, defendant argues that the trial court erred in denying its motion to strike the testimony of David Rollins, plaintiff's expert who testified about plaintiff's lost future earnings. Closely related to that argument is defendant's third assignment of error, that the trial court erred in denying its motion for a directed verdict on plaintiff's claim for lost future earnings.³ On cross-appeal, plaintiff contends that the trial court erred by reducing the jury's damage award based on plaintiff's four percent comparative fault. For the reasons explained below, we affirm the trial court in all respects.

A. Defendant's motion to change venue

Plaintiff filed his complaint in Multnomah County. Before filing an answer, defendant moved, pursuant to ORS 14.110(1)(a) and (c), for a change of venue from Multnomah County to Coos County. ORS 14.080—a catch-all provision that applies when venue is not governed by other sections—provides, in part:

"(1) All other actions shall be commenced in the county in which the defendants, or one of them, reside at the commencement of the action or in the county where the cause of action arose. * * *

"(2) For purposes of this section, a corporation incorporated under the laws of this state * * * shall be deemed to be a resident of any county where the corporation * * * conducts regular, sustained business activity * * *."

(Emphasis added.) In support of its motion, defendant filed a memorandum of law, supported by two affidavits. Plaintiff opposed the motion by producing extensive evidentiary documentation demonstrating that, at least from approximately 1993 until 1999, defendant sold most, if not all, of its catch to a single buyer located in Multnomah County. Although the buyer took delivery of the fish in Coos County, the business records for that time period indicate that there were a significant number of communications and contacts between the buyer in Multnomah County and defendant in Coos County. Both parties focused their arguments on whether those communications and contacts constituted "regular, sustained business activity" for purposes of ORS 14.080. Virtually no evidence was submitted by either party concerning defendant's activities as of February 28, 2001, when the action commenced, which is the relevant time frame for establishing residency under the statute.

After a hearing, the trial court denied defendant's motion. The trial court reasoned that defendant had conducted regular, sustained business activity in Multnomah County and was, therefore, a resident of Multnomah County for purposes of venue. In response to that ruling, defendant petitioned the Oregon Supreme Court for writ of mandamus that would order the trial court to transfer venue from Multnomah County to Coos County. In its petition, defendant explained why mandamus was the appropriate remedy:

"Ordinary appellate review cannot provide a plain, speedy, and adequate remedy in the ordinary course of law as it is difficult, if not impossible, to demonstrate that a trial court's refusal to grant a change of venue has prejudiced the moving party. The Supreme Court has previously ruled in several cases that mandamus is an appropriate method of seeking review of a circuit court's ruling on a motion to change venue."

The Supreme Court denied the petition, and the case proceeded to trial. The jury awarded plaintiff $4 million in compensatory damages, but, as discussed later, the trial court reduced that amount based on the jury's finding that four percent of the damages were caused by plaintiff's comparative negligence.

Defendant advances two principal arguments in support of its contention that the trial court erred in denying its motion for a change of venue. First, defendant argues that the evidence fails to demonstrate that defendant conducted sustained and regular business in Multnomah County at the relevant time—that is, when the complaint was filed. Second, defendant argues that, even if the issue could be resolved based on defendant's communications and contacts between 1993 and 1999, those communications do not, as a matter of law, constitute "regular, sustained business activity" within the meaning of ORS 14.080(2). Thus, defendant asserts, under ORS 14.080, venue was proper only in Coos County.

Plaintiff responds with a number of arguments, only one of which we need to address, as it is dispositive. Plaintiff asserts that "the only way to challenge an allegedly erroneous non-discretionary venue decision is by mandamus." According to plaintiff, because defendant sought and was denied mandamus relief, we cannot address the issue on direct appeal. As we explain, we agree.

Mandamus is an extraordinary remedy. As the Oregon Supreme Court has explained, "[i]n general, [the Supreme Court] issues a writ of mandamus only when there is no plain, speedy, and adequate remedy in the ordinary course of the law." State ex rel Carlile v. Frost, 326 Or. 607, 611, 956 P.2d 202 (1998). Thus, ordinarily the Supreme Court will not entertain a mandamus proceeding if the matter can be adequately addressed on appeal. Id. And, the court has held, "[d]irect appeal is an adequate remedy unless the relator would suffer a special...