Whipple v. Howser

• Decision Date: 02 June 1981
• Docket Number: No. 80-0708-J-3,80-0708-J-3
• Citation: 51 Or.App. 85,624 P.2d 648
• Parties: Holly Jean WHIPPLE, Plaintiff, v. Mark Thomas HOWSER and Thomas C. Howser, Defendants. Mark Thomas HOWSER and Thomas C. Howser, Appellants, v. Monique BEHRENDT, Respondent. ; CA 18103.
• Court: Oregon Court of Appeals

Page 648

624 P.2d 648

51 Or.App. 85

Holly Jean WHIPPLE, Plaintiff, v. Mark Thomas HOWSER and Thomas C. Howser, Defendants.

Mark Thomas HOWSER and Thomas C. Howser, Appellants, v. Monique BEHRENDT, Respondent.

No. 80-0708-J-3; CA 18103.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Dec. 19, 1980.

Resubmitted in banc March 4, 1981.

Decided March 9, 1981.

Reconsideration Denied May 7, 1981.

Review Allowed June 2, 1981.

William E. Duhaime, Medford, argued the cause for appellants. With him on the brief was Brophy, Wilson & Duhaime, Medford.

John W. Eads, Jr., Medford, argued the cause for respondent. With him on the brief was Frohnmayer, Deatherage, deSchweinitz & Eads, Medford.

Linda J. Rudnick and Clayton C. Patrick, Oregon Trial Lawyers Association, Salem, filed a brief amicus curiae.

THORNTON, Judge.

This appeal requires us to determine the effect to be given the 1979 Oregon Legislature's amendment of ORS 30.115, ¹ the guest passenger statute, removing actions based upon motor vehicle accidents from the statute's recovery limitations. ² The issue is whether the legislature intended the amendment to apply to an action commenced after October 3, 1979, the amendment's effective date, when the accident upon which the action is based occurred prior to that date. Resolution of this issue depends upon the legislature's intended interpretation of the amendment's "savings clause," which reads:

"Section 8. This Act does not apply to an action or other proceeding commenced before the effective date of this Act."

The question in this case arises as follows: On October 21, 1978, plaintiff was a passenger in a vehicle driven by Monique Behrendt which was involved in a collision with a vehicle owned by one defendant and operated by the other. On February 27, 1980, plaintiff filed an action seeking damages from defendants for personal injuries she allegedly suffered due to their negligence. On April 7, 1980, defendants filed an answer to plaintiff's complaint and, pursuant to ORCP 22C, ³ a third party action against Monique Behrendt. As third party plaintiffs, they alleged that third party defendant Behrendt's negligence proximately contributed to and caused plaintiff's injuries. They further alleged that if a judgment was returned against them, they were entitled to contribution ⁴ from third party defendant.

Pursuant to ORCP 21 A, ⁵ third party defendant moved to dismiss that complaint. Specifically, she argued that at the time of the accident, ORS 30.115 barred any recovery by plaintiff and, therefore, third party plaintiffs, absent either an allegation in the third party complaint of her gross negligence or that plaintiff was a "paying" passenger in her vehicle at the time of the accident. Since the third party plaintiffs' complaint contained neither allegation, third party defendant argued that it failed to state a cause of action.

The trial court agreed. Relying on Smith v. Clackamas County, 252 Or. 230, 448 P.2d 512 (1968), the court ruled that the 1979 amendment to ORS 30.115 did not apply to the third party action and that under the statute's former provisions, the third party complaint failed to state a cause of action. Based on this ruling, the trial court dismissed the third party action and entered an appropriate final judgment. Third party plaintiffs appeal and assign as error the trial court's dismissal of their third party complaint.

A generally recognized fundamental principle of jurisprudence is that retroactive application of new laws is disfavored. The principle is based upon the premise that such application involves a high risk of potential unfairness.

" * * * Perhaps the most fundamental reason why retroactive legislation is suspect stems from the principle that a person should be able to plan his conduct with reasonable certainty of the legal consequences. Thus The Federalist stressed the desirability of protecting the people from the 'fluctuating policy' of the legislature. Closely allied to this factor is man's desire for stability with respect to past transactions. Moreover, to the extent that statutory law should serve as a guide to individual conduct, this purpose is thwarted by retroactive enactments. Still another reason underlying the hostility to retroactive legislation is that such a statute may be passed with an exact knowledge of who will benefit from it. Finally, there is the strong common-law tradition that although a court's pronouncements may apply to past conduct, a legislature's function is to declare law for the future." (footnotes omitted.) Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 692-93 (1960).

As a general rule of statutory construction, therefore, a legislative enactment is presumed to apply only prospectively and will be construed as applying retroactively only where the enactment clearly, by express language or necessary implication, indicates that the legislature intended such a result. 2 Sutherland, Statutory Construction § 41.04 at 252 (4th ed. 1973). The courts of this state have long adhered to this general rule. See Judkins v. Taffe, 21 Or. 89, 27 P. 221 (1891); Pitman v. Bump, 5 Or. 17, (1873); and Coos-Curry Elec. v. Curry County, 26 Or.App. 645, 554 P.2d 601 (1976).

We agree with the trial judge that the 1979 amendment to ORS 30.115 did not apply to the third party action. This case is governed by the familiar and well-settled rule of statutory construction referred to above and applied in Smith v. Clackamas County, supra, namely that where an amendment to a statute changes substantive rights, the amendment should not be applied retroactively where its language does not require such application.

In Smith, the court was asked to determine whether a statute, changing the basis of recovery from strict liability to liability based on negligence, was to be applied retroactively to a claim based on an accident which had occurred prior to the effective date of the statute, but not filed prior to that date. The legislature had said:

"This Act shall not affect any action, suit or proceeding commenced prior to and pending on the effective date of this Act." Or.Laws 1965, ch. 300, § 3.

In the case at bar, the legislature used the following language:

"This Act does not apply to an action, suit or other proceeding commenced before the effective date of this Act." Or.Laws 1979, ch. 866, § 8.

The dissent tries to distinguish the holding in Smith from the case at bar. We cannot. In our view, the holding in Smith is controlling here. Accord: Wiebe v. Seely, Administrator, 215 Or. 331, 335 P.2d 379 (1959); Joseph v. Lowry, 261 Or. 545, 495 P.2d 273 (1972). See also cases collected in Annotation, 98 A.L.R.2d 1105, 1110-1112 (1964).

Affirmed.

RICHARDSON, Judge, dissenting.

As noted in the majority opinion, the issue in this case is whether the legislature intended the 1979 amendment to ORS 30.115 to apply to an action commenced after the enactment's effective date, when the accident upon which the action is based occurred prior to that date. Relying on Smith v. Clackamas County, 252 Or. 230, 448 P.2d 512 (1968), the majority concludes that the amendment should not be applied to the present case. The majority is in error. Not only does Smith v. Clackamas County, supra, not control the issue here, but a proper interpretation of the legislature's action leads to the conclusion that the legislature intended the amendment to apply to the third party action. Accordingly, I dissent.

The majority states: "As a general rule of statutory construction, * * * a legislative enactment is presumed to apply only prospectively and will be construed as applying retroactively only where the enactment clearly, by express language or necessary implication, indicates that the legislature intended such a result." 51 Or.App. at 89, 624 P.2d at 650. The majority notes that the basis of this general rule is the concern for the potential unfairness to the litigants which might arise from retroactive application of laws. Courts have traditionally been reluctant, in the absence of legislative expression to the contrary, to apply legislation retroactively if to do so would result in unreasonable disruption in the parties' expectations or an unreasonable alteration of the parties' legal relationship. That principle focuses almost entirely upon the effect of the legislation.

The overriding consideration in determining proper statutory application, however, is the legislature's intended application. Therefore, in applying the general rule noted by the majority, the following considerations must be kept in mind. First, as noted, whether a particular statute should be applied prospectively or retrospectively is solely a matter of ascertaining the legislature's intent. Perkins v. Willamette Industries, 273 Or. 566, 570, 542 P.2d 473 (1975); Joseph v. Lowery, 261 Or. 545, 552, 495 P.2d 273 (1972). Any rule of statutory construction, therefore, can never be conclusive but can serve only as a guide to aid the court in this determination. Perkins v. Willamette Industries, supra; Joseph v. Lowery, supra; Spicer v. Benefit Ass'n of Ry. Emp., 142 Or. 574, 17 P.2d 1107, 21 P.2d 187, 90 A.L.R. 517 (1933). Second, within constitutional limits not in issue in this case, the legislature can provide that any enactment be applied retroactively. Hall v. Northwest Outward Bound School, 280 Or. 655, 572 P.2d 1007 (1977). Third, also within constitutional bounds, when the legislature expressly provides that a statute be applied retroactively, we give effect to that expression regardless of the enactment's effect on the legal relationship or expectations of the parties. Kirby v. Sonville, 286 Or. 339, 594 P.2d 818 (1979); Hall v. Northwest Outward Bound School, supra; Fullerton v. Lamm, 177 Or. 655, 163 P.2d 941, 165 P.2d 63 (1945); City of Salem v. Noble, 45 Or.App. 453, 608 P.2d 603 (1980). Finally, and most significantly to the...