Scovell v. TRK Trans, Inc.

• Decision Date: 27 August 1985
• Citation: 299 Or. 679,705 P.2d 1144
• Parties: Joseph H. SCOVELL, Personal Representative of the Estate of Roy Horace Scovell, Deceased, Plaintiff, v. TRK TRANS, INC., a corporation, and Charles Glenn Robbins, Defendants, and TRK TRANS, INC., a corporation, Respondent on Review, v. STATE of Oregon, Oregon TRANSPORTATION COMMISSION, HIGHWAY DIVISION, Petitioner on Review. TC 16-80-06182; CA A29387; SC S31473.
• Court: Oregon Supreme Court

Page 1144

705 P.2d 1144

299 Or. 679

Joseph H. SCOVELL, Personal Representative of the Estate of Roy Horace Scovell, Deceased, Plaintiff, v. TRK TRANS, INC., a corporation, and Charles Glenn Robbins, Defendants, and TRK TRANS, INC., a corporation, Respondent on Review, v. STATE of Oregon, Oregon TRANSPORTATION COMMISSION, HIGHWAY

DIVISION, Petitioner on Review.

TC 16-80-06182; CA A29387; SC S31473.

Supreme Court of Oregon In Banc.

Argued and Submitted April 2, 1985.

Decided Aug. 27, 1985.

Michael D. Reynolds, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Philip Schradle, Asst. Atty. Gen., Salem.

Richard A. Roseta, Eugene, argued the cause for respondent on review.

LINDE, Justice.

The decision of the Court of Appeals is reversed and the judgment of the Circuit Court is reinstated. Beaver v. Pelett, 299 Or. 664, 705 P.2d 1149 (1985).

PETERSON, C.J., filed a concurring opinion.

LENT, J., filed a specially concurring opinion.

PETERSON, Chief Justice, concurring.

I concur in the result, because I agree with Justice Lent that the failure to plead extinguishment as required by ORS 18.440(3) supports the trial court dismissal. See, however, my dissenting opinion in Beaver v. Pelett, 299 Or. 664, 705 P.2d 1149 (1985), decided this day.

ROBERTS and JONES, JJ., join in this concurring opinion.

LENT, Justice, specially concurring.

By adoption of the reasoning in Beaver v. Pelett, 299 Or. 664, 705 P.2d 1149 (1985), (decided today) the majority holds that the state may be liable for contribution under ORS 18.440(1) but that the fourth amended third party complaint filed by defendant TRK fails to state ultimate facts sufficient to constitute a claim. I disagree with the first holding and agree with the second. I would reach the same result, however, on a different basis.

I do not agree with the majority that the state has consented to be sued in contribution. I agree with the state that a claim for contribution is not a tort claim and that the state has never consented to waive its immunity under Article IV, section 24, of the Oregon Constitution for a claim of this kind. I shall not develop that position in this case, however, because I conclude that the third party plaintiff has not stated ultimate facts sufficient to constitute a claim for contribution even if it be assumed, arguendo, that the state has consented to be sued for contribution.

As to the second holding by the majority that the fourth amended third party complaint is deficient for failure to allege that the state received timely notice from the person who claimed to have suffered loss or injury, I agree, but I conclude that there is another more compelling reason to hold that the fourth amended third party complaint is vulnerable to attack under ORCP 21 A. (8).

ORS 18.440(3) provides:

"A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what is reasonable."

There is no allegation in the fourth amended third party complaint that the liability of the third party defendant, State of Oregon, was extinguished by the settlement.

The state moved to dismiss the fourth amended third party complaint "for failure to state ultimate facts sufficient to constitute a claim." ¹ The motion itself contains no specific claim as to what ultimate facts are not stated. ² The motion appears to have been argued orally, and the trial court allowed the motion. Thereafter the state moved for judgment for failure of the third party plaintiff to plead over, and the trial court gave judgment dismissing the action with prejudice.

On appeal to the Court of Appeals, the state squarely and specifically raised the failure to plead that its liability to plaintiff Scovell had been extinguished by the settlement. In this court the state has continued in argument to assert that position.

The Court of Appeals disposed of that contention as follows:

"As a matter of law, however, by the time of the settlement, the state had no liability to Scovell that could have been extinguished, because his claim was barred by ORS 30.275. Thus the allegation was not essential here to state a claim for contribution."

71 Or.App. at 193, 691 P.2d 911. I do not understand that holding. Whether the Court of Appeals believed that Scovell's claim was barred for his failure to give timely notice or was barred by the two- year limitation found in former ORS 30.275(3), the third party complaint contained no allegation to establish that the claim was barred. Moreover, the decision attempts to carry water on both shoulders, for if Scovell's claim had been barred by former ORS 30.275, the state "is not liable in tort to" Scovell under ORS 18.440(1).

The simple fact of the matter is that there is no allegation that Scovell's claim against the state was extinguished by the settlement. The true question is whether such an allegation was necessary to state a claim.

ORCP 18 provides:

"A pleading which asserts a * * * third party claim, shall contain:

"A. A plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition."

We noted in Davis v. Tyee Industries, Inc., 295 Or. 467, 476, 668 P.2d 1186 (1983), that ORCP 18 A. continued Oregon as a "fact pleading" rather than a "notice pleading" jurisdiction. We held that "whatever the theory of recovery, facts must be alleged which, if proved, will establish the right to recover." 295 Or. at 479, 668 P.2d 1186.

Prior to the adoption of ORCP 18 A., the statute, ORS 16.210(2), provided:

"The complaint shall contain:

" * * *

"(b) A plain and concise statement of the facts constituting the cause of action, without unnecessary repetition.

" * * * "

Under that statute this court has repeatedly stated that complaints claiming a statutory cause must set forth facts which demonstrate a right to recover under the statute. State Forester v. Obrist, 237 Or. 63, 67, 390 P.2d 333 (1964) ("When a cause of action rests upon a statutory duty imposed upon a class of persons the complaint must contain facts which bring the defendant within the statutory class."): Fields v. Fields, 213 Or. 522, 541, 307 P.2d 528, 326 P.2d 451 (1958) ("must allege facts which will bring the case within the terms of the statute"); State et al. v. Young, 180 Or. 187, 193, 174 P.2d 189 (1946) ("it is indispensable that he plead facts demonstrating his right to recover under the statute"). See also Nichols v. Union Pacific R.R. Co., 196 Or. 488, 503, 250 P.2d 379 (1952) (must also plead facts when statute is the basis of a defense). In other words this court has consistently held that the court should dismiss whenever there exists at least one essential element of the statutory cause, proof of which the facts stated in the complaint cannot establish. Dismissal must be proper if the complaint fails to allege facts showing the defendant to be within those covered by the statute. State Forester v. Obrist, supra, 237 Or. at 65, 67, 390 P.2d 333 (statute allowed forester to recover firefighting costs only from the "owner, easement holder, operator, and person in possession" of land from which fire spread, and forester failed to allege that defendant was any of these); State v. Young, supra, 180 Or. at 192-93, 174 P.2d 189 (statute allowed state to bring dependent child petition against "parents, guardians, or other persons in whose care" children were, but state failed to allege that defendants were any of these).

Any right TRK has to relief was established by and is limited by the contribution statute, prior to which Oregon recognized no common law right to contribution among tortfeasors. Blackledge v. Harrington, 291 Or. 691, 694, 634 P.2d 243 (1981). See also Cross et ux. v. Harris, 230 Or. 398, 403, 370 P.2d 703 (1962) (where liability is "only statutory in origin," legislature may attach any conditions which it deems proper on the right to recover); Loe v. Lenhardt, 227 Or. 242, 256, 362 P.2d 312 (1961) (where right to sue is "a creation of the legislature," it is "clearly subject to legislative restrictions"). The contribution statute creates a remedy "unknown to the common law," and TRK must "bring [itself] strictly within the operation of the statute." Loe v. Lenhardt, supra, 227 Or. at 257, 362 P.2d 312.

The plain language and structure of the statute indicate that extinguishment of the defendant's liability is a necessary element of the statutory right. ORS 18.440 expressly defines and limits the right to situations in which its exceptions do not apply:

"(1) Except as otherwise provided in this section, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. There is no right of contribution from a person who is not liable in tort to the claimant.

" * * * " (Emphasis added.)

By the clear text of ORS 18.440(3), a plaintiff claiming the right to contribution based on a settlement has no entitlement unless the defendant's liability is extinguished.

The court's earlier cases have distinguished between "exemptions," the non-existence of which the plaintiff must plead, and "provisos," which the defendant must plead in the answer. See, e.g., Oregon Liquor Com. v. Coe, 163 Or. 646, 99 P.2d 29 (1940); Oregon Liquor Com. v. Anderson Markets, 160 Or. 646, 87 P.2d 206 (1939). Citing treatises on code pleading, these opinions devoted much discussion to whether the omitted fact was incorporated in the "enacting clause" of the statute--in which case it was an "exemption"--or elsewhere--which made...