Vasquez v. Double Press Mfg., Inc.
Decision Date | 01 November 2017 |
Docket Number | A154774 |
Citation | 406 P.3d 225,288 Or.App. 503 |
Parties | Zeferino VASQUEZ, Plaintiff-Respondent, v. DOUBLE PRESS MFG., INC., a California corporation, Defendant-Appellant. |
Court | Oregon Court of Appeals |
Jonathan Henderson argued the cause for appellant. With him on the briefs were Elizabeth E. Lampson and Davis Rothwell Earle & Xochihua, P.C., Portland. With him on the supplemental brief was Davis Rothwell Earle & Xochihua, P.C., Portland.
Kathryn H. Clarke argued the cause for respondent. With her on the briefs were Mark G. McDougal andGregory Kafoury.
James S. Coon and Thomas, Coon, Newton & Frost filed the brief amicus curiae for Oregon Trial Lawyers' Association.
Nathan R. Morales, Sharon A. Rudnick, and Harrang Long Gary Rudnick P.C. filed the brief amicus curiae for Associated Oregon Industries and the Oregon Liability Reform Coalition.
Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.
Defendant seeks reconsideration of our decision in Vasquez v. Double Press Mfg., Inc. , 278 Or.App. 77, 372 P.3d 605 (2016). In that decision, we concluded that the application in this case of the cap on noneconomic damages in ORS 31.710(1)1 would violate plaintiff's jury-trial right under Article I, section 17, of the Oregon Constitution.2 We based our decision on the controlling precedent of Lakin v. Senco Products, Inc. , 329 Or. 62, 987 P.2d 463, clarified , 329 Or. 369, 987 P.2d 476 (1999). One day after we issued our decision in Vasquez , the Supreme Court issued its decision in Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016), which overruled Lakin . In light of Horton , we allow reconsideration and withdraw our opinion in Vasquez .
We also conclude that it is appropriate to exercise our discretion to address the two "right for the wrong reason" arguments raised by plaintiff in response to defendant's request for reconsideration. As to those arguments, we conclude that plaintiff's claims against defendant are not "subject to" ORS chapter 656, such that they would be excepted from the application of ORS 31.710(1). However, we also conclude that, as applied in this case, ORS 31.710(1) violates the remedy clause of Article I, section 10, of the Oregon Constitution.3 Accordingly, we allow reconsideration, withdraw our former opinion, and affirm the trial court's ruling not to apply ORS 31.710(1) to plaintiff's award of damages.
We take the facts from our prior opinion, which we recited consistently with the jury's verdict in favor of plaintiff:
Vasquez , 278 Or.App. at 79-81, 372 P.3d 605 (footnote omitted). On appeal, defendant challenged the trial court's denial of its post-verdict motion to apply the noneconomic damages cap in ORS 31.710(1).
278 Or.App. at 87, 372 P.3d 605.
In light of the Supreme Court's conclusion and overruling of Lakin , we allow reconsideration in this case and withdraw our former opinion. However, that does not end our inquiry. Because Horton announced a significant change in the law—not only in the application of Article I, section 17, but, as we will discuss below, in the application of Article I, section 10—we requested additional briefing and oral argument from the parties. We now turn to the additional arguments raised by the parties on reconsideration.
On reconsideration, plaintiff raises two new arguments as a basis to affirm the trial court under the "right for the wrong reason" principle: (1) plaintiff's claims against defendant are excepted from ORS 31.710(1) because they are "subject to" ORS chapter 656; and (2) ORS 31.710(1) violates Article I, section 10, both on its face and as applied in this case. Defendant responds that we should not consider those arguments because plaintiff did not timely raise them in his answering brief on appeal. However, as explained below, we conclude that we should consider plaintiff's "right for the wrong reason" arguments in determining whether to modify our previous disposition affirming the trial court.
In contending that plaintiff was required to raise his arguments in his answering brief for the arguments to be considered by us, defendant points to cases in which we and the Supreme Court have said that we will not consider arguments raised for the first time on reconsideration. See, e.g. , State v. Leistiko , 352 Or. 622, 624, 292 P.3d 522 (2012) ( ); Kentner v. Gulf Ins. Co. , 298 Or. 69, 74, 689 P.2d 955 (1984) (...
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