Union Bank of Cal. v. Copeland Lumber Yards

• Decision Date: 13 June 2007
• Docket Number: A131135.,050707909.
• Citation: 213 Or. App. 308,160 P.3d 1032
• Parties: The UNION BANK OF CALIFORNIA, N.A., as personal representative of the Estate of Morris Nagl, on behalf of Bruce Nagl, Corrina Nagl, and Philip Nagl, Plaintiff-Appellant, v. COPELAND LUMBER YARDS, INC., an Oregon corporation; Crown Cork & Seal Company, Inc., a Pennsylvania corporation, individually and as successor-in-interest to Mundet Cork Corporation; Hiway Tire Co., an Oregon corporation; Honeywell International, Inc., a Delaware corporation, formerly known as Allied Signal, Inc. and as Allied-Signal, Inc., individually and as successor-in-interest to The Bendix Corporation, Bendix Products Automotive Division, Bendix Products Division-Bendix Aviation Corp., Bendix Home Systems, Allied Corporation, Allied Chemical Corporation, Honeywell, Inc., Honeywell Controls, General Chemical Corporation, Fram, Friction Materials of Los Angeles, EM Sector Holdings, Inc., Universal Oil Products Company, Boylston Corporation, Ehrhart & Associates, Inc., Ehrhart & Arthur, Inc., and Garrett Air Research Corp.; Knez Building Materials Co., an Oregon corporation, individually and as successor-in-interest to Gray Building Materials, Inc.; The Goodyear Tire & Rubber Company, an Ohio corporation, individually and as successor-in-interest to Goodyear Aerospace Corp., Lockheed Martin Tactical Systems, Inc., Loral Corporation, and Aircraft Braking Systems Corp.; and Weygandt Auto Parts, Inc., an Oregon corporation, Defendants, and Dowman Products, Inc., a California corporation, Defendant-Respondent.
• Court: Oregon Court of Appeals

160 P.3d 1032

213 Or. App. 308

The UNION BANK OF CALIFORNIA, N.A., as personal representative of the Estate of Morris Nagl, on behalf of Bruce Nagl, Corrina Nagl, and Philip Nagl, Plaintiff-Appellant, v. COPELAND LUMBER YARDS, INC., an Oregon corporation; Crown Cork & Seal Company, Inc., a Pennsylvania corporation, individually and as successor-in-interest to Mundet Cork Corporation; Hiway Tire Co., an Oregon corporation; Honeywell International, Inc., a Delaware corporation, formerly known as Allied Signal, Inc. and as Allied-Signal, Inc., individually and as successor-in-interest to The Bendix Corporation, Bendix Products Automotive Division, Bendix Products Division-Bendix Aviation Corp., Bendix Home Systems, Allied Corporation, Allied Chemical Corporation, Honeywell, Inc., Honeywell Controls, General Chemical Corporation, Fram, Friction Materials of Los Angeles, EM Sector Holdings, Inc., Universal Oil Products Company, Boylston Corporation, Ehrhart & Associates, Inc., Ehrhart & Arthur, Inc., and Garrett Air Research Corp.; Knez Building Materials Co., an Oregon corporation, individually and as successor-in-interest to Gray Building Materials, Inc.; The Goodyear Tire & Rubber Company, an Ohio corporation, individually and as successor-in-interest to Goodyear Aerospace Corp., Lockheed Martin Tactical Systems, Inc., Loral Corporation, and Aircraft Braking Systems Corp.; and Weygandt Auto Parts, Inc., an Oregon corporation, Defendants, and Dowman Products, Inc., a California corporation, Defendant-Respondent.

050707909.

A131135.

Court of Appeals of Oregon.

Argued and Submitted February 21, 2007.

Decided June 13, 2007.

Robyn L. Stein argued the cause for appellant. On the opening brief were Scott Niebling and Brayton Purcell LLP. With them on the reply brief was James Shadduck.

Jay W. Beattie, Portland, argued the cause for respondent. With him on the brief was Lindsay, Hart, Neil & Weigler, LLP.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

Oregon's wrongful death statute, ORS 30.020(1), provides that the decedent's personal representative may bring an action for wrongful death "if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission." The question in this case is the meaning of that provision — specifically, whether a personal representative can bring a wrongful death action when the decedent already recovered damages for personal injury based on the same act or omission that is the basis for the wrongful death claim. The trial court concluded that, if decedent already recovered damages for the same act or omission, the statute precludes a wrongful death action, because decedent could not have maintained the action had he lived. We agree and affirm.

The relevant facts are not in dispute. Morris Nagl worked as a floor installer from 1953 to 1991. During that time, he was exposed to asbestos-containing building materials, including joint compound, filler, and leveling and patching products. In 2001, Nagl was diagnosed with an asbestos-related disease. In 2003, he was diagnosed with mesothelioma.

In 2004, Nagl and his wife, Donna, brought a personal injury action against a number of companies engaged in the manufacture, distribution, and sale of asbestos-containing materials. Defendant Dowman Products, Inc., (Dowman) was among those companies named as a defendant. The complaint alleged claims of negligence, product liability, and loss of consortium, based on Nagl's exposure to asbestos-containing products that Dowman manufactured, delivered, or sold. The Nagls settled with other defendants and then obtained a verdict against Dowman for a total of $659,720.87, consisting of $274,720.87 in economic damages to Nagl, $350,000 in noneconomic damages to Nagl, and $35,000 in loss of consortium damages to his wife.

Approximately five months after the judgment was entered in the personal injury action, Nagl died.

In 2005, plaintiff, the personal representative of Nagl's estate and Nagl's three surviving children, initiated this wrongful death action against, among others, Dowman. The complaint alleges claims of negligence and product liability, based on Nagl's exposure to asbestos-containing products that Dowman manufactured, delivered, or sold. The prayer of $2.7 million includes medical expenses to Nagl that were not covered by the personal injury judgment, burial expenses, and damages for loss of consortium to Nagl's children.

Dowman moved for summary judgment on the ground that the wrongful death action was not permitted by statute. According to Dowman, the statute permits a wrongful death action only "if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission." In this case, Dowman argued, Nagl could not have brought the action, had he lived. Because Nagl already had brought a successful action for damages against the same wrongdoer (Dowman) for injury done by the same act or omission (injury produced by exposure to asbestos-containing products), Nagl would have been precluded from bringing a second claim for the same wrongdoing, as a matter of law. Because Nagl could not have brought the action, under the plain terms of the statute, neither can plaintiff.

Plaintiff responded that it makes no sense to read the statute to condition a personal representative's right to initiate a wrongful death action on the decedent's ability to bring the claim, had the decedent lived. According to plaintiff, a wrongful death action is entirely independent of any claims that the decedent himself could have brought.

The trial court agreed with Dowman that the wrongful death statute itself precluded plaintiff from bringing this action and entered judgment accordingly.

On appeal, plaintiff assigns error to the trial court's decision to grant Dowman's motion for summary judgment. In support of the assignment, plaintiff reprises its argument that Nagl's successful prosecution of his personal injury claim against defendant does not preclude Nagl's estate from pursuing its own claim, even if both claims arise out of the same acts or omissions. Plaintiff asserts that the portion of the statute on which the trial court relied — permitting a wrongful death action only "if the decedent might have maintained an action, had the decedent lived" — is no bar in this case. In plaintiff's view, Nagl "not only `might have' maintained such an action while alive but he did so and won." (Emphasis in original.)

Dowman responds that plaintiff is ignoring the wording of the statute, which requires that the decedent have been able to have brought the action "had the decedent lived." That wording, Dowman contends, makes clear that the determinative issue is whether decedent could have brought the action at the time of death. In this case, Nagl could not have done so, having already recovered on his personal injury claim against defendant for the same wrongdoing.

Plaintiff rejoins that we should read the statute to require only that the decedent have been able to have brought the claim at any time, and not at the time of death. Any other reading of the statute, plaintiff complains, "produces an absurd result" that "defies the statutory language, policy, and history."

In Oregon, an action for wrongful death is regarded as exclusively statutory in nature. Storm v. McClung, 334 Or. 210, 222 n. 4, 47 P.3d 476 (2002) ("Since at least 1891, this court has adhered to the view that no right of action for wrongful death existed at common law."); Groth v. Hyundai Precision and Ind. Co., 209 Or.App. 781, 801, 149 P.3d 333 (2006) ("A well-established line of Oregon cases holds that there was no right of action for wrongful death at common law and that wrongful death claims are purely statutory."). To be sure, as the Oregon Supreme Court itself has noted, there is reason to doubt the widely held view that there was no common-law action for wrongful death. Storm, 334 Or. at 222 n. 4, 47 P.3d 476.¹ Still to date, the court has not had occasion to reconsider the matter. See, e.g., Juarez v. Windsor Rock Products, Inc., 341 Or. 160, 169, 144 P.3d 211 (2006) (noting the issue but determining that it was not necessary to resolve it in that case). The point is worth emphasizing, for it frames the dispute before us, which is one not of policy or of developing common-law principles, but of statutory construction.

As such, our decision rests on familiar principles that apply to the interpretation of statutes. We attempt to discern the intentions of the legislature that enacted the statute into law by reference to the statute's text and, if necessary, its history and other aids to construction. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). In our examination of the statute's text, we consider prior judicial construction of it. Martin v. Board of Parole, 327 Or. 147, 156, 957 P.2d 1210 (1998). Prior Supreme Court construction of a statute, in fact, becomes part of the statute as if written into the text of the statute itself. Stephens v. Bohlman, 314 Or. 344, 350 n. 6, 838 P.2d 600 (1992).

Oregon's wrongful death statute provides, in part:

"When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent * * * may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission."

ORS 30.020(1). The statute has been amended on a number of occasions over the years, but the portion relevant to this case has remained essentially unchanged since its original enactment as part of the Deady Code of 1862. See Storm, 334 Or. at 222 n. 4, 47 P.3d 476. The Supreme Court has explained that, although the effect of the statute is to create a new cause of action...