Simonsen v. Ford Motor Co.

• Decision Date: 08 December 2004
• Citation: 196 Or. App. 460,102 P.3d 710
• Parties: Melissa R. SIMONSEN, Appellant, v. FORD MOTOR COMPANY, a Delaware corporation, Respondent, and Dewey P. Milton and State of Oregon, by and through the Department of Transportation, Defendants below.
• Court: Oregon Court of Appeals

102 P.3d 710

196 Or. App. 460

Melissa R. SIMONSEN, Appellant, v. FORD MOTOR COMPANY, a Delaware corporation, Respondent, and Dewey P. Milton and State of Oregon, by and through the Department of Transportation, Defendants below.

01 C19139; A119931.

Court of Appeals of Oregon.

Argued and Submitted June 10, 2004.

Decided December 8, 2004.

Manuel C. Hernandez, Bandon, argued the cause for appellant. With him on the briefs was Hernandez & Associates, LLC.

Michael T. Garone argued the cause for respondent. With him on the brief were Nancy M. Erfle, Anne Talcott, Portland, and Schwabe, Williamson & Wyatt.

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

HASELTON, P.J.

Plaintiff, who was severely injured in an accident while driving a car manufactured by defendant, appeals from a judgment dismissing her claims against defendant pursuant to ORCP 21 A(9). The trial court determined that plaintiff's claims were barred by the statute of ultimate repose for product liability civil actions, ORS 30.905(1) (2001),¹ and the statute of limitations for breach of warranty claims, ORS 72.7250(1). As explained below, we affirm the trial court's disposition with respect to two of plaintiff's three specifications of negligence and her warranty claims. However, plaintiff's remaining specification of negligence alleged conduct that was not subject to ORS 30.905(1) and, from the pleadings, we cannot determine whether that specification is barred by the applicable statutes of limitations and ultimate repose, ORS 12.110 and ORS 12.115. Accordingly, we reverse and remand the dismissal of that specification.

We liberally construe the operative pleading — the first amended complaint — in assessing the sufficiency of plaintiff's claims, ORCP 21 A, and assume the truth of the facts alleged, drawing all inferences in plaintiff's favor. Hinkley v. Eugene Water Electric Board, 189 Or.App. 181, 183, 74 P.3d 1146 (2003). According to the first amended complaint, plaintiff was injured while driving "a 1989 Ford Festiva [that] was manufactured and sold as a new vehicle to a previous owner" by defendant, and then "re-sold" to plaintiff in November 1994. The accident occurred the following month. On December 26, 1994, as plaintiff was driving along the Oregon coast highway during a rain storm, strong winds forced the Festiva into the oncoming lane, where it collided with a 24-foot motor home driven by Dewey Milton.² Plaintiff suffered severe, life-altering injuries, including extensive brain injury, and, for some period of time, was rendered "insane."

Plaintiff filed this action in October 2001. In her initial complaint, plaintiff alleged two claims against defendant — one for "product liability/negligence" and the other for "breach of warranty." Defendant moved to dismiss the complaint under ORCP 21 A, arguing that plaintiff's "product liability/negligence" claim was untimely under the eight-year statute of ultimate repose, ORS 30.905(1), and the two-year statute of limitations, ORS 30.905(2), for a product liability civil action.³ Defendant also argued that the breach of warranty claim was untimely under the applicable statute of limitations, ORS 72.7250(1), and that plaintiff had failed to provide adequate notice as required by ORS 72.6070(3)(a).⁴ Plaintiff responded that, because she met the legal definition of "insane," she was entitled to a tolling of the limitations provision under ORS 12.160 and, given that tolling, her claims were timely.⁵ Plaintiff also argued that the filing of the complaint constituted adequate notice for purposes of ORS 72.6070.

The trial court allowed defendant's motion to dismiss. With respect to plaintiff's "product liability/negligence" claim, the court held that that claim was subject to ORS 30.905(1) and that the operation of that statute of ultimate repose "[was] not tolled by plaintiff's insanity." With respect to the breach of warranty claims, the trial court determined that plaintiff failed to plead any explicit extension of defendant's warranty to future performance and, under ORS 72.7250(2), the "warranty started running in 1989 upon the original purchase of the vehicle." Accordingly, the court dismissed that claim as untimely, concluding that, although ORS 12.160 might apply to toll the limitations period in breach of warranty claims, "the four-year statute [of limitations under ORS 72.7250(1)] would have run in 1993" and "would not have been tolled because plaintiff claims that her insanity was caused by the 1994 car crash." The court's order of dismissal was without prejudice.

Plaintiff then filed her first amended complaint. In that complaint, she alleged three claims against defendant — one claim for "negligence" and two claims that included overlapping allegations of breaches of warranties of merchantability.⁶ As pertinent to our review, the first amended complaint alleged generally:

"[T]he Ford Festiva developed a latent defect in the front control arm of the steering mechanism which required a recall in 1996. The defect in the steering mechanism contributes substantially to the Festiva's propensity to become unstable and result in loss of control.

"* * * * *

"Plaintiff was rendered insane due to her extensive brain injuries."

Plaintiff's claim for "negligence" alleged that defendant was negligent in three particulars:

"A. In failing to timely discover the latent defect in the control arm and issue a recall before December 26, 1994;

"B. By delaying the recall notice until June 20, 1996 "C. By failing to adequately test to discover the latent defect once Defendant Ford began receiving reports of serious injury and fatality attributed to loss of control by the driver[.]"

Plaintiff's third claim, for "breach of implied warranty," alleged that defendant:

"[W]arranted the future performance of the Festiva for 6 years or 100,000 miles, that the Festiva was of a quality that would at least pass without objection in the trade, and was fit for the ordinary purposes for which such vehicles are used, and in all other respects was of merchantable quality."

The first amended complaint lists eight particulars describing how defendant breached that warranty. The fourth claim is similar, except that it refers to an express warranty of future performance. See 196 Or.App. at ___, 102 P.3d at 713 n. 6.

Defendant again moved to dismiss under ORCP 21 A, reiterating its argument that the negligence claim was barred by ORS 30.905(1). Defendant treated the third claim as one for breach of the implied warranty of merchantability and the fourth claim as one for breach of an express warranty, and argued that both claims should be dismissed for lack of privity and lack of notice, and, with respect to the implied warranty claim, untimeliness. The trial court granted the motion, concluding that "plaintiff's First Amended Complaint does not cure the defects which the court previously ruled upon" and that "there is no tolling of the Statute of Ultimate Repose." Accordingly, in October 2002, the court entered an ORCP 67 B judgment dismissing all claims against defendant with prejudice.

On appeal, plaintiff raises six "assignments of error," each of which takes issue with different aspects of the trial court's reasoning in dismissing her negligence and warranty claims.⁷ For purposes of analytic clarity and cogency, we group plaintiff's "assignments of error" as appropriate and address, in turn, the propriety of the trial court's dismissal of plaintiff's negligence claim and of her warranty claims, beginning with the timeliness of plaintiff's individual specifications of negligence.

I. PLAINTIFF'S NEGLIGENCE CLAIM

As noted, plaintiff's first amended complaint alleged that defendant was negligent in three particulars:

"A. In failing to timely discover the latent defect in the control arm and issue a recall before December 26, 1994;

"B. By delaying the recall notice until June 20, 1996;

"C. By failing to adequately test to discover the latent defect once Defendant Ford began receiving reports of serious injury and fatality attributed to loss of control by the driver[.]"

The trial court necessarily concluded that the gravamen of each of those specifications rendered each subject to the ultimate repose bar for "product liability civil actions," ORS 30.905(1). 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."

A product liability civil action "embraces all theories a plaintiff can claim in an action based on a product defect," including, for example, negligence, strict liability, breach of warranty, and fraudulent misrepresentation. Kambury v. DaimlerChrysler Corp., 185 Or.App. 635, 639, 60 P.3d 1103 (2003); see Philpott v. A.H. Robins Co., Inc., 710 F.2d 1422 (9th Cir.1983)

(cited with approval in Kambury).

ORS 30.905 (2001) provided, in part:

"(1) Notwithstanding ORS 12.115 or 12.140 and except as provided in subsection (2) 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.

"(2) * * * [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."

Here, the Festiva was "first purchased for use or consumption" in 1989.⁸ Thus, if ORS 30.905(1) controls, plaintiff's negligence claim was long time-barred by the time plaintiff filed this action in 2001.

On appeal, as before the trial court, plaintiff advances three principal reasons for why ORS 30.905(1) is not preclusive. First, plaintiff asserts that some or all of her...