Oregon Statutory Time Limitations Handbook: The Red Book

Oregon Statutory Time Limitations

Published by OREGON STATE BAR

PROFESSIONAL LIABILITY FUND May 2003

Includes 2007 Addendum

2007 ADDENDUM To Oregon Statutory Time Limitations Handbook, §45.1(C) Published by the OSB Professional Liability Fund

New Case Affects Tolling by Advance Payments Oregon’s advance payment statute provides that if a person making an advance payment under ORS 31.560 or 31.565 for “death, injury or destruction” provides written notice within 30 days after the first advance payment was made of the date of the applicable statute of limitations, that statute continues to run. See ORS 12.155(1). If the required notice is not given, however, the statute of limitations is tolled as of the time the advance payment is made and until the notice “is actually given.” ORS 12.155(2).

Since 1997, Oregon courts have limited the use of the tolling provisions of the advance payment statute to payments made by insurers based on Minisce v. Thompson, 149 Or. App. 746, 756, 945 P.2d 582 (1997). In Minisce, the Oregon Court of Appeals had held that "the advance payment statutes do not toll the statute of limitations outside the setting of third-party claims against insurers.”

However, on December 7, 2006, in an en banc decision, the Oregon Supreme Court overruled Minisce to the extent it held that ORS 12.155 was limited to insurers. In Hamilton v. Paynter, 342 Or. 48, 149 P.3d 131 (December 7, 2006), the Court held that the term “person” in ORS 12.155 did not apply exclusively to insurance companies.

Instead, ORS 12.155 could be applied to any “person” as defined by ORS 174.100(5), which broadly defines “person” to include ”individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies." As a result, the Hamilton decision greatly expands the reach of ORS 12.155.

Based on the ruling in Hamilton, in any case alleging damages for “death, injury or destruction” which may be barred by the statute of limitations, practitioners should carefully consider whether the tolling provisions of ORS 12.155 apply. In addition, in defending claims alleging damages for “death injury or destruction,” practitioners should determine whether the defendant has made an advance payment as defined by ORS 31.560 or 31.565 and, if so, whether the defendant has provided the notice required by ORS 12.155(1) to avoid the statute’s tolling provision under ORS 12.155(2).

[Note: Please make note of the Hamilton case in your copy of the Oregon Statutory Time Limitations handbook, at §45.1(C).]

Oregon State Bar Professional Liability Fund

5335 S.W. Meadows Road, Suite 300 Post Office Box 1600 Lake Oswego, Oregon 97035

503-639-6911 1-800-452-1639

2003 Board of Directors and Officers Albert J. Bannon – Chairperson – Portland Robert W. Nunn – Vice Chairperson – Portland Bob Thuemmel – Secretary-Treas. – Portland Stephen M. Bloom – Pendleton Ron J. Palmer – Public Member – Cottage Grove Louis A. Santiago – Portland Amanda Walkup – Eugene Lisa Almasy Miller – Portland Tim Martinez – Public Member – Salem

Chief Executive Officer Ira R. Zarov Director of Loss Prevention Barbara S. Fishleder Practice Management Advisors Dee Crocker Beverly Michaelis Carol Wilson

© 2003 Oregon State Bar Professional Liability Fund All Rights Reserved

CONTRIBUTORS TO THIS EDITION* Jas Jeffrey Adams Jason M. Ayres Peter L. Barnhisel Edward J. Benett Linda M. Bolduan Ryan Wesley Bounds Gordon T. Carey, Jr. Eric S. DeFreest Tanya A. Durkee John J. Fahsbender Louis A. Ferreira, IV Joseph A. Field Barbara S. Fishleder Meagan A. Flynn Richard L. Fortner Pilar French B. Elise Gautier Leta E. Gorman Heather L. Guthrie Janay Haas Gregory J. Hall Tanya R. Hanson Victoria E. O’Kain Karl E. Hausafus Timothy J. Helfrich Lindsey H. Hughes Stephen T. Janik Linda Johannsen Terence C. Leeds Denise Lidzbarski Tom E. Lindley

Leah C. Lively Julie A. Lucas William A. McDaniel Robert J. McGaughey Beverly A. Michaelis Michael J. Millender Bruce C. Miller Alan L. Mitchell Marsha Murray-Lusby Karen Neese Tod A. Northman Leslie W. O’Leary Kevin S. O’Scannlain Mary J. Oberst William Thomas Patton Thomas B. Powers Peter W. Preston Randall G. Rice Bonnie M. Richardson-Kott Dian Sharon Rubanoff Ronald J. Rubino Christian Scott Michael J. Scott Richard A. Slottee Dennis Steinman Brent G. Summers Ellen Theodorson Sarah Rhoads Troutt James N. Westwood Michael C. Wetzel David O. Wilson

*The contributors gratefully acknowledge Gerald R. Pullen, Britt L. Nelson, S. Diane Rynerson, and Robert D. Fentress, authors of the previous editions.

REFERENCE INFORMATION

REFERENCE KEY Example See CIVIL PROCEDURE, TIME COMPUTATIONS

Explanation Capitalized words with no other reference refer the reader to the named section of this handbook.

APPEAL AND REVIEW (OREGON CLE 1993 & Supp 2002)

Capitalized words with a reference to Oregon CLE and a date refer the reader to a CLE publication of the Oregon State Bar.

AMENDMENTS TO RULES AND STATUTES The Oregon Revised Statutes (ORS) cited in the book are subject to amendment every oddnumbered year when the legislature meets, and in special sessions. Amendments to the ORS take effect at various times, as specified in the amendments.

The Uniform Trial Court Rules (UTCR) cited in the book are subject to amendment every year.

Generally, proposed amendments are published in the Oregon Appellate Courts Advance Sheets in January, to take effect in August. Occasionally, rule changes are adopted at other times of the year.

DISCLAIMER This handbook includes claim prevention techniques that are designed to minimize the likelihood of being sued for legal malpractice. It is not a complete compilation of all time limitations. The material presented does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and readers should conduct their own appropriate legal research.

TABLE OF CONTENTS 1.

Account Stated ..................................................................................................................1

2.

Accounts ...........................................................................................................................1

3.

Actions ..............................................................................................................................2

4.

Appellate Practice and Procedure .....................................................................................2

5.

Arbitration.........................................................................................................................8

6.

Asbestos ..........................................................................................................................10

7.

Assault and Battery .........................................................................................................10

8.

Assignment .....................................................................................................................11

9.

Attachment......................................................................................................................11

10.

Attorney’s Liens and Fees ..............................................................................................12

11.

Chattel Liens (Nonpossessory) .......................................................................................13

12.

Chattel Liens (Possessory)..............................................................................................14

13.

Civil Procedure ...............................................................................................................17

14.

Civil Rights .....................................................................................................................22

15.

Compensable Crimes ......................................................................................................34

16.

Conflict of Laws .............................................................................................................35

17.

Construction Bond Claims..............................................................................................36

18.

Construction Liens ..........................................................................................................38

19.

Continuing Tort...............................................................................................................42

20.

Contracts .........................................................................................................................43

21.

Contribution ....................................................................................................................48

22.

Conversion ......................................................................................................................48

23.

Corporations – Cooperative ............................................................................................49

24.

Corporations – Nonprofit................................................................................................50

25.

Corporations – Private ....................................................................................................53

26.

Cost and Disbursements..................................................................................................58

27.

Counterclaims, Recoupment, and Setoff ........................................................................58

28.

Death or Disability..........................................................................................................59

29.

Debtor – Creditor ............................................................................................................61

30.

Decedents’ Estates ..........................................................................................................62

31.

Declaratory Judgments ...................................................................................................68

32.

Defamation......................................................................................................................69

33.

Discovery – Pretrial ........................................................................................................70

34.

Dishonored Bank Checks and Instruments .....................................................................73

35.

Dismissal at Trial – Effect on Statute of Limitations .....................................................73

36.

Employer – Employee.....................................................................................................75

37.

False Imprisonment or Arrest .........................................................................................76

38.

Family Law (Domestic Relations) ..................................................................................77

39.

Fines and Forfeitures ......................................................................................................81

40.

Fraud and Deceit .............................................................................................................81

41.

Garnishment....................................................................................................................82

42.

Governmental and Public Bodies ...................................................................................84

43.

Guardians and Conservators ...........................................................................................86

44.

Indemnity ........................................................................................................................89

45.

Insurance .........................................................................................................................90

46.

Intentional Infliction of Emotional Distress ...................................................................93

47.

Intentional Interference...................................................................................................94

48.

Judgments .......................................................................................................................94

49.

Justice Courts ..................................................................................................................97

50.

Laches .............................................................................................................................99

51.

Landlord-Tenant ...........................................................................................................100

52.

Legal Malpractice .........................................................................................................104

53.

Lost and Unclaimed Property .......................................................................................107

54.

Mediation ......................................................................................................................109

55.

Medical and Dental Malpractice...................................................................................110

56.

Mistake..........................................................................................................................113

57.

Mortgages and Trust Deeds ..........................................................................................113

58.

Motor Vehicles .............................................................................................................115

59.

Personal Injury ..............................................................................................................117

60.

Personal Property ..........................................................................................................118

61.

Pesticides ......................................................................................................................118

62.

Products Liability..........................................................................................................119

63.

Racketeering Statutes (RICO) ......................................................................................123

64.

Real Property ................................................................................................................124

65.

Recovery of Possession of Personal Property...............................................................128

66.

Reformation of Contracts and Instruments ...................................................................129

67.

Secured Transactions (UCC) ........................................................................................130

68.

Securities – Blue Sky Laws ..........................................................................................139

69.

Ski Resorts ....................................................................................................................142

70.

Small Claims in Circuit Court ......................................................................................142

71.

Stalking .........................................................................................................................143

72.

Statute of Limitations – Defenses Avoiding Application.............................................144

73.

Statute of Limitations – Tolling....................................................................................147

74.

Statutory Liens ..............................................................................................................150

75.

Summary Judgment ......................................................................................................152

76.

Sureties..........................................................................................................................153

77.

Survival of Actions .......................................................................................................154

78.

Tender and Receipt .......................................................................................................155

79.

Time Computations.......................................................................................................155

80.

Tort or Contract ............................................................................................................160

81.

Trade and Antitrust Practices........................................................................................163

82.

Trial Proceedings ..........................................................................................................166

83.

Trusts ............................................................................................................................167

84.

Ultimate Repose............................................................................................................168

85.

Uniform Commercial Code...........................................................................................171

86.

Uniform Trial Court Rules............................................................................................179

87.

Workers’ Compensation ...............................................................................................187

88.

Writs..............................................................................................................................209

89.

Wrongful Death ............................................................................................................211 Table of Statutes and Rules ..........................................................................................215 Table of Cases...............................................................................................................229 Subject Index ................................................................................................................237

ACCOUNTS / §2.3

ACCOUNT STATED I.

(§1.1)

An action on an account stated must be commenced within six years. ORS 12.080(1). The cause of action accrues at the time of the last charge or payment. Interest, finance, and carrying charges are not considered last charge or payment. ORS 12.090.

II.

(§1.2)

An “account stated” is an agreement between parties that a certain amount is owing and will be paid. Sunshine Dairy v. Jolly Joan, 234 Or 84, 380 P2d 637 (1963). An action on “account” merely alleges a financial obligation but not an express or implied agreement to pay the obligation. Cooley v. Roman, 286 Or 807, 596 P2d 565 (1979). See CONTRACTS.

III.

(§1.3)

An action on an account stated relating to a breach of contract claim governed by the Article 2 of the Uniform Commercial Code is subject to the four-year statute of limitations in ORS 72.7250(1) (permitting parties to contract for limitation between one and four years). Moorman Manufacturing Co. of California v. Hall, 113 Or App 30, 830 P2d 606 (1992).

ACCOUNTS

I.

(§2.1)

An action on an account must be commenced within six years.

ORS 12.080(1). The cause of action accrues from the time of the last charge or payment. Interest, finance, and carrying charges are not considered last charge or payment. ORS 12.090.

II.

(§2.2)

An “action on account” is an action of assumpsit or debt for the recovery of money for services performed, property sold and delivered, money loaned, or damages for the nonperformance of simple contract, express or implied, when the rights of the parties will be adequately conserved by the payment and receipt of money.

Northwest Fndry. v. Willamette Mfg., 268 Or 343, 521 P2d 545 (1974).

•

III.

(§2.3)

Partial payment of principal or interest made on the account after the six-year statute of limitations had run tolled the statute. ORS 12.240; Northwest Fndry. v. Willamette Mfg., supra.

See CONTRACTS.

1

APPELLATE PRACTICE AND PROCEDURE / ยง4.1

ACTIONS I.

(ยง3.1)

Commencement

A.

An action is deemed commenced when a complaint is filed and summons served. ORS 12.020(1); ORCP 3.

B.

For the case to be considered commenced on the day the complaint is filed, the summons must be served within 60 days from the date the complaint is filed. ORS 12.020(2); ORCP 7.

C.

For purposes of the statute of limitations, the statute allows the plaintiff 60 days from the date of filing the complaint in which to serve a defendant if the statute of limitations runs after the complaint is filed but before the summons is served. ORS 12.020(1); ORCP 7. โ ข

D.

II.

The statute of limitations applicable to the action is tolled for 60 days from the filing of the complaint. The plaintiff must perfect service of the original or subsequent summons within the 60-day period.

Kenner v. Schmidt, 252 Or 218, 448 P2d 537 (1969).

If service is not perfected within the 60-day period, the statute of limitations continues to run as if the complaint had not been filed. The plaintiff must refile the complaint within the applicable statute for the particular cause of action. Allen v. Lococo, 252 Or 195, 448 P2d 569 (1968).

(ยง3.2)

Commencement on Filing

A.

ORS 12.020 defines commencement only to determine if actions are timely under the statutes of limitations. It is the only exception to ORCP 3, which makes the time of filing the time of commencement.

ORS 12.020 is a procedural and substantive rule. Hurley v. Shinmei Kisen K. K., 98 Or App 180, 779 P2d 1041 (1989).

B.

The 60-day limitation of ORS 12.020 does not apply to causes of action based on federal law brought in state court; e.g., admiralty claims under the Jones Act. The federal statute of limitations would apply in such actions. Hurley v. Shinmei Kisen K. K., supra.

APPELLATE PRACTICE AND PROCEDURE

I.

2

(ยง4.1)

Notice of Appeal

A.

Notice of appeal is jurisdictional and must be filed and served within 30 days after the judgment appealed from is entered in the register.

ORS 19.255(1).

B.

If any party has filed and served a motion for new trial or judgment n.o.v., the 30 days begins to run from the earlier of the following dates:

APPELLATE PRACTICE AND PROCEDURE / ยง4.3

(1) date the order disposing of the motion is entered in the register or (2) date the motion is deemed denied pursuant to ORCP 63 D or 64 F. ORS 19.255(2).

II.

III.

C.

Notice of cross-appeal must be filed and served within 10 days from the expiration of the time for filing the original notice of appeal. ORS 19.255(3).

D.

Within 14 days after filing the notice of appeal or notice of amended designation of record, any other party may designate additional parts of proceedings or exhibits to be included in the record. ORS 19.250(2).

E.

An order granting a new trial is a final judgment and must be appealed within 30 days after the order is entered. ORS 19.255(2); E.A. Mock & Sons, Inc. v. Mehdizadehkashi, 91 Or App 453, 457, 755 P2d 739 (1988).

F.

A motion to set aside a judgment, for new trial, or for judgment n.o.v. must be filed within 10 days from the date of entry of the judgment sought to be set aside; if not, the motion does not extend the time for filing an appeal. ORCP 63 D, 64 F; Schmidling v. Dove, 65 Or App 1, 7, 670 P2d 166 (1983).

(ยง4.2)

Undertaking on Appeal

A.

The undertaking must be filed and served within 14 days after filing notice of appeal. ORS 19.300(1).

B.

Objections to the sufficiency of undertaking must be filed within 14 days after the date on which a copy of the undertaking is served on the objecting party. ORS 19.305(3).

C.

A stipulation that waives, reduces, or limits an undertaking on appeal must be filed within 14 days after filing notice of appeal. ORS 19.310.

D.

Notwithstanding a pending appeal, the respondent may enforce the judgment if the respondent files a restitution bond within 10 days after the appeal is perfected. ORS 19.345.

(ยง4.3) A.

Transcript

Unless an appeal is referred to mediation, the person preparing the transcript must file the transcript with the trial court administrator within 30 days after filing of the notice of appeal, or within 30 days after filing of the order granting a transcript under ORS 138.500(3); ORS 19.370(2); ORAP 3.33(5). If the appeal is referred to mediation, the transcript must be filed within 30 days after the appeal is no longer held in abeyance.

ORS 19.370(3).

3

APPELLATE PRACTICE AND PROCEDURE / §4.4

•

IV.

B.

If satisfactory financial arrangements have not been made for the preparation of the transcript, and that creates the need to request an extension of time to file the transcript, any such request by the court reporter shall so state, and any such request by a party must explain why appropriate arrangements have not been made. ORAP 3.30(4).

C.

Unless an appeal is referred to mediation, a transcript may be corrected or augmented by filing a motion in the trial court within 15 days after the transcript is filed. ORS 19.370(5); ORAP 3.40(1). If an appeal is referred to mediation, a transcript may be corrected or augmented within 15 days after the appeal is no longer held in abeyance. ORS 19.370(6).

•

The transcript is deemed settled 15 days after it is filed if no motion to correct or augment the transcript is filed. The time period for filing the appellant’s opening brief begins the next day. ORS 19.370(7); ORAP 3.40(5)(a).

•

A motion to correct or augment the transcript holds the appeal in abeyance until the trial court acts on the motion. If the motion is denied, the appellant’s opening brief is due 49 days after the entry of the trial court order settling the transcript. ORAP 3.40(2), (5)(c), 5.80(1).

•

If a motion to correct or augment the transcript is allowed, the movant must request that the trial court enter an order settling the transcript once the correction or augmentation has been made. The appellant’s brief is due 49 days after entry of the trial court settling the transcript. ORAP 3.40(4)(a), (5)(b), 5.80(1).

D.

An agreed narrative statement may be filed in lieu of or in addition to the transcript within 30 days after filing the notice or appeal. ORS 19.380; ORAP 3.45.

E.

The trial court administrator must file and serve copies of an audio or video record within 14 days after receiving notice that the appellate court has waived preparation of a transcript and is allowing the appeal to be heard only on the audio or video record. ORS 19.385; ORAP 3.05(2), 3.63(2).

(§4.4) A.

4

Notice of appeal must be served on the trial court transcript coordinator in order to impose the duty of filing the transcript. ORS 19.240(2)(c). Arrangements should be made immediately for payment of the cost of the transcript. ORAP 3.33(2)(b), 3.33(3)a.

Briefs on Appeal The appellant’s opening brief and excerpt of record must be filed within 49 days of an order settling the transcript, an order waiving a transcript,

APPELLATE PRACTICE AND PROCEDURE / §4.5

the date an agreed narrative statement is filed, the date an agency record is settled in a judicial review case, or the date the notice of appeal is filed (if there is no transcript or narrative statement). ORAP 5.80(1).

V.

B.

The respondent’s brief and supplemental excerpt of record must be served and filed within 49 days after the appellant’s brief is filed. ORAP 5.80(2).

C.

The appellant’s reply brief must be served and filed within 21 days after the respondent’s brief is filed or after a motion to file a reply brief is granted. ORAP 5.80(3). An appellant’s answering brief on cross-appeal must be served and filed within 21 days after the brief on cross-appeal is filed. ORAP 5.80(4).

D.

The court may dismiss an appeal on its own motion or on the motion of a party if the appellant has failed to comply with the statutes and rules and has not adequately responded within 14 days to the court’s notice of noncompliance. ORAP 1.20(4).

E.

A party seeking reconsideration of a court of appeals decision or order must file a petition within 14 days of the decision. ORAP 6.25(2).

F.

A response to a petition for reconsideration must be filed within 7 days after the petition for reconsideration was filed. The court will consider the petition for reconsideration without waiting for a response to be filed but will consider a response if one is filed before the petition for reconsideration is considered and decided. ORAP 6.25(6).

(§4.5)

Petition for Review

A.

A petition for review of a court of appeals decision must be served and filed in the supreme court within 35 days from the date of the court of appeals decision. ORS 2.520; ORAP 9.05(1).

B.

Any response must be filed within 21 days after the petition for review is filed. ORAP 9.10(2).

C.

If the court of appeals reconsiders its decision, a petition for review of the reconsideration must be filed in the supreme court within 35 days after the date of the court of appeals decision on the reconsideration.

ORAP 6.25(4), 9.05(1).

D.

Filing of a petition for reconsideration by any party tolls (suspends) the time for all parties to file a petition for review. ORAP 6.25(4). A motion for reconsideration of any court of appeals order other than an opinion, or an order dismissing the appeal, does not toll the time for filing a petition for review. ORAP 6.25(7).

E.

A petition for reconsideration of a decision by the supreme court must be filed within 21 days from the date of the decision. ORAP 9.25(1).

5

APPELLATE PRACTICE AND PROCEDURE / §4.9

VI.

VII.

(§4.6)

Review of Administrative Agency Proceedings

A.

A petition for judicial review must be filed in the court of appeals within 60 days after serving the order on which the petition is based.

ORS 183.482(1).

B.

The agency must transmit to the court the original or a certified copy of the entire record within 30 days after the petition is served.

ORS 183.482(4); ORAP 4.20(2).

(§4.7)

Summary Determination of Appealability

The supreme court and court of appeals may make a summary determination of whether a decision is appealable. A petition for review of that determination must be filed within 14 days of the order or decision, or such shorter time as the court may order. ORAP 2.35(2), (4).

VIII. (§4.8)

IX.

6

Motions

A.

A response to a motion must be served and filed within 14 days after the motion is filed. ORAP 7.05(3).

B.

The court will usually decide a motion for an extension of time within a few days after it is filed. If the court grants the motion for extension, an objection to that decision is treated as a motion for reconsideration of the ruling. See ORAP 7.25(6).

C.

The time established by rule for the next event in the appellate process is tolled by filing certain motions. The time is tolled (suspended) until the court disposes of the motion. The following motions toll only the appellate process established by rule: a motion to hold the appeal in abeyance; to amend a designation of record; to dismiss; to determine jurisdiction; for summary affirmance under ORS 34.712, 138.225, or 138.660; to remand; to strike a brief; to supplement the record; and for leave to present additional evidence. ORAP 7.30.

(§4.9)

Mandamus

A.

Within 14 days from the date of filing a petition for a writ of mandamus, the defendant may serve and file a memorandum in opposition to the petition. ORAP 11.10(1).

B.

The relator has 28 days from the date of the court’s notice that the case is at issue, or from the date that an alternative writ of mandamus is issued, in which to file the opening brief. ORAP 11.15(1). The defendant has 28 days from the date that the relator serves and files the opening brief in which to file an answering brief. ORAP 11.15(2).

APPELLATE PRACTICE AND PROCEDURE / §4.11

X.

C.

A motion for leave of the court to file a reply brief in a mandamus proceeding must be filed within seven days after the filing of the brief for which permission to reply is sought. ORAP 11.15(3).

D.

See WRITS.

(§4.10) A.

A party seeking to recover costs must file a statement of costs and disbursements within 21 days after the date of decision. Filing a petition for review or a petition for reconsideration does not suspend the time for filing a statement of costs and disbursements. ORAP 13.05(5).

•

B.

Objections must be filed within 14 days after the statement is served.

A reply must be filed and served within 14 days after the objections are served. ORAP 13.05(5)(c).

A petition for attorney fees must be served and filed within 21 days after the date of decision. Filing a petition for review of a petition for reconsideration does not suspend the time for filing the petition for attorney fees. ORAP 13.10(2).

•

XI.

Costs and Attorney Fees on Appeal

Objections must be served and filed within 14 days after the date the petition is filed. Any reply must be served and filed within 14 days after the date of service of the objections. ORAP 13.10(6).

C.

Damages under ORS 19.445 (lack of probable cause for appeal) are recoverable only by filing a petition within 21 days after the decision.

ORAP 13.25.

D.

If the trial court enters a supplemental judgment awarding attorney fees or costs and disbursements after the notice of appeal has been filed and served, the appellant may challenge the supplemental judgment by filing and serving an amended notice of appeal within 30 days of the trial court’s supplemental judgment. A respondent whose request for attorney fees or costs or disbursements was disallowed and who wishes to challenge that ruling on appeal must file and serve an amended notice of cross-appeal within 30 days from the trial court’s supplemental judgment. ORAP 2.20(1)-(2).

(§4.11)

Time Computation

To compute time under appellate rules, do not count the day of the event. The act must be performed on the last day of the time period unless the last day is a Saturday, Sunday, or legal holiday, in which case the act must be performed on the next judicial day. ORAP 1.25(1).

7

ARBITRATION / §5.2

XII.

(§4.12)

References

See CIVIL PROCEDURE; TIME COMPUTATIONS; APPEAL AND REVIEW (Oregon CLE 1993 & Supp 2002); THE ETHICAL OREGON LAWYER ch 24 (Oregon CLE 1991 & Supp 1998).

ARBITRATION I.

(§5.1) A.

A party aggrieved by the other party’s failure to arbitrate under a written contract or submission providing for arbitration must petition the circuit court for an order directing the arbitration to proceed by giving 10 days’ written notice of the application to the other party. ORS 36.310.

B.

The award will be entered in the court clerk’s record as submitted after payment of $35 to the clerk.

C.

II.

8

General Provisions (ORS 36.300-36.365)

•

Copies of the award must be served on interested parties, and judgment will be entered as if the award is a jury verdict unless exceptions are filed against the award within 20 days after service of the award. ORS 36.350(1).

•

If the arbitrator’s award requires the payment of money (including costs and attorney fees), the award must be accompanied by a separate statement that contains the information required for money judgments in ORCP 70A(2)(a). ORS 36.350(2).

•

No exceptions or appearances will be deemed to be filed unless the fee of $35 for filing an exception to the award and the fee of $21 for filing an appearance to oppose the exception are paid to the clerk by the filing party. ORS 36.355(2).

A judgment will be entered and will have the effect of a default judgment if no objection is made to the entry of judgment after award. A judgment entered after objection is subject to appeal to the higher courts.

ORS 36.365.

(§5.2)

Court Arbitration Program (ORS 36.400-36.425)

A.

The Oregon Rules of Civil Procedure apply until a case is referred to an arbitrator. UTCR 13.040(1)B(2).

B.

Once a case is referred to an arbitrator, all pending motions not then resolved will be submitted to and determined by the arbitrator only.

UTCR 13.040(3).

C.

Except by court order, cases will not be transferred to arbitration within 63 days of the set trial date. UTCR 13.050(1).

ARBITRATION / §5.3

•

III.

A court order is unnecessary if the parties stipulate to an arbitrator and a hearing date at least 28 days before the scheduled trial date.

UTCR 13.050(2).

D.

After notice from the court transferring the case to arbitration, any party may seek an exemption from arbitration by filing and serving a motion within 14 days after notification. UTCR 13.070.

E.

An arbitrator will be assigned within 21 days after assignment to arbitration if the parties have not selected an arbitrator by stipulation.

UTCR 13.080(3).

F.

The hearing will be scheduled not sooner than 14 days or later than 49 days from the date that the case is assigned to an arbitrator. Continuances are granted only with the arbitrator’s permission and must be within the 49-day period. Permission of the presiding judge is necessary to continue hearings beyond the 49-day period. UTCR 13.160(2).

G.

A prehearing statement of proof, along with pleadings and other court file documents, must be submitted to the arbitrator at least 14 days before the hearing. UTCR 13.170(1), (3).

(§5.3) A.

Awards

The arbitrator must file the award with the trial court administrator within 14 days after completion of the hearings for all cases except dissolution cases. The arbitrator must file the award in a dissolution case within 21 days after completion of the hearing. UTCR 13.220(1).

•

A party may request a de novo hearing within 20 days after filing the award, or within two judicial days after service of the initial written request for trial de novo, notwithstanding the lapse of 20 days from the filing of the arbitration award. ORS 36.425; UTCR 13.250(2)(b).

•

If a party fails to file a written notice of appeal and request for a trial de novo within 20 days after the filing of the decision and award, the clerk of the court must enter the arbitration decision and award as a final judgment and it may not be appealed. ORS 36.425(3); UTCR 13.240.

B.

In dissolution cases, the arbitrator must send the award within seven days after the hearing and must give the parties an opportunity to be heard on the form of the decree. UTCR 13.210(6).

C.

If the arbitrator awards costs and attorney fees, the arbitrator must send the award to the parties, without filing it with the court, within seven days, and must establish procedures for determining amounts.

UTCR 13.210(5).

9

ASSAULT AND BATTERY / §7.1

D.

IV.

A party may challenge an award or denial of attorney fees and costs within seven days after the filing of the decision and award with the clerk. The opposing party must file and serve a written response within seven days after the exceptions were served. Failure to determine the challenge within 20 days is deemed a denial of the challenge.

ORS 36.425(6).

(§5.4)

References

See generally ARBITRATION AND MEDIATION (Oregon CLE 1996 & Supp 2001).

ASBESTOS I.

(§6.1)

The statute of ultimate repose is 10 years for actions against any person who performs the construction, alteration, or repair of any improvement to real property. But see §6.2.

II.

(§6.2)

Any action based on products liability for damages resulting from asbestos-related disease must be commenced within two years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the disease and the cause of the disease. ORS 30.907. The action is not subject to any period of repose. Purcell v. Asbestos Corp., Ltd., 153 Or App 415, 959 P2d 89, adh’d to in part on reh’g, 155 Or App 1, 963 P2d 729 (1998), rev den, 329 Or 358 (1999) (contrasting applicability of ORS 30.907 with statute of ultimate repose for improvements to real property provided in ORS 12.135, and holding that ORS 12.135 did not apply when liability and damages flow from manufacturing, selling, or delivering asbestos product). See School District No 1J, Multnomah County, Oregon v. AC&S, Inc., 5 F3d 1255 (9th Cir 1993) (statute of ultimate repose in ORS 12.135 applied to installation of product containing asbestos). But see Purcell, supra, 153 Or App at 428-429.

III.

(§6.3)

See also PRODUCTS LIABILITY; WRONGFUL DEATH. ASSAULT AND BATTERY

I.

(§7.1)

Generally

An action for assault and battery must be commenced within two years after the cause of action arises. Notwithstanding the two-year statute of limitations applicable to assault and battery, see ORS 12.110(1), a person who is the victim of a “compensable crime,” or that victim’s personal representative, may

10

ATTACHMENT / §9.3

bring an action within five years after the commission of the “compensable crime.” ORS 147.065.

A “compensable crime” is defined to include “an intentional, knowing or reckless act that results in serious bodily injury or death of another person and which, if committed by a person of full legal capacity, would be punishable as a crime in this state.” ORS 147.005(4). See ORS 163.160 et seq. (“Assault and Related Offenses”).

II.

(§7.2)

Counterclaim

A counterclaim for assault and battery, based on a cause of action that is not barred at the time that the plaintiff’s action commences, is not barred if the statute of limitations expires before the counterclaim is filed. Lewis v. Merrill, 228 Or 541, 365 P2d 1052 (1961).

III.

(§7.3)

References

See COMPENSABLE CRIMES; 1 TORTS ch 1 (Oregon CLE 1992 & Supp 2000).

See also ORS 12.117 (statute of limitation for actions based on child abuse).

ASSIGNMENT I.

(§8.1)

Any assignment of a chose in action made in writing for consideration is complete when the assignor executes the writing.

The assignment is effective on execution or according to written terms without giving notice to the debtor unless notice is required by statute. ORS 80.010.

II.

(§8.2)

See generally 1 OREGON CIVIL PLEADING AND PRACTICE ch 5 (Oregon CLE 1994 & Supp 2001).

ATTACHMENT

I.

(§9.1)

At the time the summons is issued or any time afterward, a plaintiff may have the property of the defendant attached. ORCP 84 A(2).

II.

(§9.2)

A motion for redelivery of attached property must be served on the plaintiff five days before a hearing on the motion. ORCP 84 F(1).

III.

(§9.3)

See GARNISHMENT; REPLEVIN-CLAIM AND DELIVERY. See generally CREDITORS’ RIGHTS AND REMEDIES ch 7 (Oregon CLE 2002).

11

ATTORNEY’S LIEN AND FEES / §10.2

ATTORNEY’S LIEN AND FEES I.

(§10.1) Generally An attorney has a lien on actions, suits, and proceedings after they are commenced and on judgments, decrees, orders, and awards entered in a client’s favor to cover the attorney fees and compensation. ORS 87.445.

II.

(§10.2) A.

Money Judgments. If the result of a case is a money judgment or decree, the attorney must file a notice of claim of lien with the clerk in the court that issued the judgment or decree within three years after the judgment or decree is given. Such a lien is a lien on the judgment or decree for as long as the judgment or decree is valid. ORS 87.450(1), (3).

•

B.

C.

12

Lien on Judgments

After filing a notice of claim of lien, the attorney must immediately mail the client a copy of the notice by registered or certified mail.

ORS 87.450(2).

Personal Property Judgments. If a judgment or decree is for the possession, award, or transfer of personal property, an attorney may claim a lien for fees and compensation by filing a notice of claim of lien not later than one year after entry of the final judgment, decree, or disposition on appeal. ORS 87.455(1).

•

Such a lien must be foreclosed within one year after the notice of claim of lien is filed. ORS 87.455(2). (See ORS ch 88, Foreclosure of Chattel Liens.)

•

The period for foreclosing the lien on personal property may be extended by an agreement in writing through no longer than two years after the notice of claim of lien is filed. ORS 87.455(3).

Real Property Judgments. If a judgment or decree is for the possession, award, or conveyance of real property, an attorney may claim a lien for fees and compensation by filing a notice of claim of lien within six months after entry of the final judgment, decree, or disposition on appeal. ORS 87.460(1).

•

Such a lien must be foreclosed within one year after the notice of claim of lien is filed. ORS 87.460(2). (See ORS ch 88, Foreclosure of Real Property Liens.)

•

The period for foreclosing the lien may be extended by an agreement in writing through no longer than two years after the notice of claim of lien is filed. ORS 87.460(3).

CHATTEL LIENS (NONPOSSESSORY) / §11.2

III.

IV.

(§10.3)

Attorney Fees

A.

Pleadings. A party seeking attorney fees must assert the right to fees in the pleadings. ORCP 68 C(2); Benj. Franklin Fed. Savings and Loan v.

Phillips, 88 Or App 354, 745 P2d 437 (1987); Pritchett v. Fry, 286 Or 189, 593 P2d 1133 (1979).

B.

Procedure. Attorney fees will be entered as part of a judgment if the party claiming the fees serves a statement of the amount of the fees not later than 14 days after the entry of the judgment on all parties who are not in default for failure to appear and if the claiming party files the original statement and proof of service with the court. ORCP 68 C(4).

See UTCR 5.080.

C.

Objections. Objections to the allowance of attorney fees must be filed and served not later that 14 days after service of the statement on the party making the objections. ORCP 68 C(4)(b).

(§10.4)

References

See also COSTS AND DISBURSEMENTS; INSURANCE; UNIFORM COMMERCIAL CODE; WORKERS’ COMPENSATION. CHATTEL LIENS (NONPOSSESSORY) I.

II.

(§11.1)

Generally

A.

A person claiming a nonpossessory chattel lien under ORS 87.216, 87.222, or 87.232 must file a written notice of claim of lien with the county recording officer within 60 days after the termination of furnishing labor, services, or materials. ORS 87.242.

B.

A copy of the notice of claim of lien filed under ORS 87.242 must be sent by the lien claimant to all holders of perfected security interests within 30 days after filing. ORS 87.252(2).

C.

A lien under ORS 87.216 and 87.232 can exist only for labor, materials, or services provided for six months immediately preceding the filing of the notice of claim of lien under ORS 87.242. ORS 87.256.

(§11.2) A.

Foreclosure

Foreclosure of a nonpossessory, nonagricultural chattel lien must be commenced (or a petition to foreclose the lien without suit under ORS 87.272 must be filed) within six months after the notice of the claim of lien is filed. If an agreement to extend payment has been made, a foreclosure must be filed within six months after the extended payment period expires. ORS 87.266(1).

13

CHATTEL LIENS (POSSESSORY) / §12.2

•

B.

III.

IV.

A lien continued by an agreement may not continue in force for more than two years from the time the claim of lien is filed.

ORS 87.266(1).

After disbursement for cost of sale and discharge of the lien, any remaining proceeds of the foreclosure sale must be claimed within three years from the date of deposit with the county treasurer. ORS 87.316.

(§11.3)

Agricultural Lien

A.

An agricultural claim of lien under ORS 87.226 requires filing a notice of claim of lien with the Secretary of State within 75 days after the furnishing of labor, materials, or services has terminated. ORS 87.242.

See, McGregor Co. v. Heritage, 291 Or 420, 631 P2d 1355 (1981) (lien follows chattels upon sale after attachment, unless chattels are sold prior to filing of notice of claim and purchaser is notified of lien prior to delivering proceeds to owner). An agricultural lienholder can lose its priority for failure to send notice. ORS 87.252(4).

B.

An agricultural services lien will cease to exist if a suit to foreclose or a petition to foreclose without suit under ORS 87.272 is not commenced within 18 months after the claim of lien is filed or six months after expiration of an agreed extended payment period. A lien continued by agreement may not continue in force for more than two years from the time the claim for lien is filed. ORS 87.266(2).

(§11.4)

References

See generally CREDITORS’ RIGHTS AND REMEDIES ch 3 (Oregon CLE 2002); FORECLOSING SECURITY INTERESTS ch 6 (Oregon CLE 1997 & Supp 2001).

CHATTEL LIENS (POSSESSORY) I.

(§12.1)

Generally

Any person who performs services or supplies materials to a chattel has a possessory lien until the charges are paid. ORS 87.152.

II.

14

(§12.2)

Foreclosure

A.

Foreclosure is not permitted until the lienor has possessed the chattel for at least 60 days after the lien attaches. ORS 87.172(1).

B.

In the case of an animal, a lienor must retain possession of the animal for at least 30 days before foreclosure. If the animal is a dog or a cat, the period of possession is 15 days. ORS 87.172(2).

C.

If the property is a motor vehicle appraised at $1,000 or less but more than $500 (by a person holding a certificate under ORS 819.230), which has been removed, towed, or stored, the vehicle must be retained at least

CHATTEL LIENS (POSSESSORY) / §12.2

30 days after the lien attaches before foreclosing the lien. ORS 87.172(3).

D.

Notice of the foreclosure sale must be given to the lien debtor at least 30 days before sale. ORS 87.192(1)(a).

•

E.

EXCEPTION: For a motor vehicle worth $1,000 or less but more than $500, notice must be given 15 days before the sale. For a motor vehicle worth more than $1,000, the 30-day notice provision applies.

ORS 87.192(1)(b)-(c).

Public notice of the foreclosure sale must be given by posting notice in a public place at or near the county courthouse and in a public place at the location where the lien claimant obtained possession of the chattel. ORS 87.192(2). These notices must be posted no later than the time required under ORS 87.192(1) (see §12.1 D, above). ORS 87.192(2)(a).

•

EXCEPTION: No notice need be posted at the location of possession if the chattel is a vehicle. ORS 87.192(2)(b).

Additionally, if the chattel is something other than an abandoned vehicle and has a fair market value of $1,000 or more, or if it is an abandoned vehicle with a fair market value of $2,500 or more, notice of the foreclosure sale must be printed once a week for two successive weeks in a daily or weekly newspaper. ORS 87.192(3).

F.

Notice of the foreclosure sale must be sent by the lien claimant to all holders of perfected security interests at least 30 days prior to the foreclosure sale. ORS 87.196(a), (c). If the chattel is a motor vehicle (other than as part of the inventory of a motor vehicle dealer), notice need only be given to security interest holders noted on the certificate of title. ORS 87.196(b).

•

EXCEPTIONS: If the lien is claimed under ORS 87.152, then notice must be given not later than the 20th day after storage charges begin.

ORS 87.196(1)(c)(A). If no storage charges are imposed, then notice must be given no later than the 30th day after the date upon which the services provided are completed. ORS 87.196(1)(c)(B). If the lien is for the cost of removing, towing, or storage of a vehicle that is worth more than $500 but less than $1,000 (as appraised by a person with a certificate under ORS 819.230), then notice must be given at least 15 days before the foreclosure sale.

Failure to provide notice to a necessary party may result in a buyer of the chattel taking subject to that party’s security interest or lien (in the case of a motor vehicle) or in the lien claimant being liable to the party for the lesser of the fair market value of the chattel or the amount owed to the party. ORS 87.196(3), (4).

15

CHATTEL LIENS (POSSESSORY) / §12.5

G.

III.

After disbursement for expenses of sale and discharge of the lien, any remaining proceeds of a foreclosure sale must be claimed within three years from the date of deposit with the county treasurer. ORS 87.206(2).

(§12.3) A.

An innkeeper has a lien until paid on certain chattels of a guest or boarder for the reasonable or agreed charges. ORS 87.156(1).

•

IV.

V.

16

Innkeeper’s Lien

EXCEPTION: An innkeeper may not retain prescription or nonprescription medications, medical equipment or apparatus, food, food stamps, children’s clothing or accessories after the guest or border requests their return. ORS 87.156(2).

B.

An innkeeper must retain the chattel subject to the lien for at least 60 days after the lien attaches before foreclosing the lien. ORS 87.172(1).

C.

Attorney’s fees are available to the prevailing party in any action to compel the return of property or recover damages based on its retention.

ORS 87.172(2)(c).

(§12.4)

Landlord’s Lien

A.

Commercial. A commercial landlord has a lien on a tenant’s or occupant’s chattels, except wearing apparel, to secure payment of rent and advances until rent and advances are paid. ORS 87.162. See Ashmun v. G and H Ranches, Inc., 48 Or App 945, 618 P2d 462 (1980), adh’d to on recons, 49 Or App 625, 619 P2d 1359 (1980).

B.

Foreclosure is not permitted until at least 60 days after the lien attaches.

ORS 87.172(1).

C.

Residential. No possessory lien is available under the Residential Landlord and Tenant Act, ORS 90.100-90.875. ORS 90.420. See Lyons v. Kamhoot, 281 Or 615, 618, 575 P2d 1389 (1978) (holding that innkeeper’s lien is invalid if Residential Landlord and Tenant Act applies).

(§12.5)

Self-Service Storage Facility Lien

A.

The owner of a self-service storage facility has a lien on all personal property that is located in a specific storage space to secure payment for rent, charges for services or materials, and expenses necessarily incurred in preserving or disposing of the personal property, until the rent and other charges and expenses are paid. ORS 87.687. The lien may be foreclosed on default. ORS 87.689(1).

B.

To foreclose the lien, the facility owner must send to the occupant of the storage space a notice demanding payment not earlier than 30 days after default and providing other required information. ORS 87.689(2)-(3).

CIVIL PROCEDURE / §13.1

VI.

C.

If foreclosing personal property with a fair market value of over $100, the owner must advertise notice of the sale once a week for at least 2 weeks in a newspaper or via a substitute method. The property can be sold no earlier than 15 days after the first publication. ORS 87.691(2)(3).

D.

After satisfaction of the lien, the balance of the sale proceeds must be held for delivery on demand to the occupant for two years from the date of the sale, after which the balance becomes the property of the storagefacility owner. ORS 87.691(7).

(§12.6) References See generally CREDITORS’ RIGHTS AND REMEDIES ch 3 (Oregon CLE 2002); FORECLOSING SECURITY INTERESTS ch 6 (Oregon CLE 1997 & Supp 2001).

CIVIL PROCEDURE

I.

(§13.1)

Pleadings

A.

A defendant must appear and defend (file an answer or a motion) within 30 days from the date of service of a summons and complaint, or a thirdparty complaint. ORCP 7 C(2); ORCP 15 A.

B.

A defendant served by publication must appear and defend within 30 days of the date stated in the summons. ORCP 7 C(2).

C.

The court may, in its discretion, enlarge the time or allow an answer, reply, or any other pleading or motion to be filed after the time limited by the procedural rules. ORCP 15 D.

D.

A motion for extension of time under ORCP 15 D is not a “motion or answer” and does not constitute an “appearance” for purposes of preventing entry of a default under ORCP 69 A. Charles Schwab & Co. v. Pletz, 95 Or App 48, 768 P2d 407 (1989).

E.

An answer to a cross-claim or reply to a counterclaim must be filed within 30 days from date of service of the cross-claim or counterclaim.

ORCP 7 C(2), 15 A.

F.

Any other motion or responsive pleadings must be filed within 10 days from the date of service of the pleading moved against or to which the responsive pleading is directed. ORCP 15 A.

G.

A defendant served by publication may be allowed to defend within one year after entry of the judgment on a showing of good cause.

ORCP 7 D(6)(f).

17

CIVIL PROCEDURE / §13.2

II.

18

H.

After a motion is denied, a responsive pleading must be filed within 10 days after the order denying the motion is served unless the order otherwise directs. ORCP 15 B(1).

I.

After a motion is allowed, an amended pleading must be filed within 10 days after the order allowing the motion is served, unless the court directs otherwise. ORCP 15 B(2).

J.

A response to an amended pleading must be filed within the time remaining for a response to the original pleading or within 10 days after the amended pleading is served, whichever is longer, unless the court directs otherwise. ORCP 15 C.

K.

Amendment. A pleading may be amended by a party once, as a matter of course, at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted, the party may amend as a matter of course at any time within 20 days after it is served. ORCP 23 A. •

Otherwise, an amendment may be made only by leave of court or by written consent of the adverse party. ORCP 23 A.

•

See also STATUTE OF LIMITATIONS – DEFENSES.

(§13.2)

Motions

A.

Generally. A motion is not a pleading. ORCP Colwell v. Chernabaeff, 258 Or 373, 482 P2d 157 (1971).

13,

14 A;

B.

Except for service of summons, whenever a party has the right or is required to do some act within a prescribed time period after receiving service of a notice or document by mail, the party may add three days to the time period prescribed for performance. ORCP 10 C.

C.

See chapter 86, infra, for uniform trial court rules concerning motions and responses to motions. Also review any applicable supplemental local rules.

D.

Motion to Dismiss. A motion to dismiss raising defenses listed in ORCP 21 A(1) through 21 A(9) must be filed before pleading, if a further pleading is permitted. ORCP 21 A. •

The defenses listed in ORCP 21 A(1) through 21 A(9) must be heard and determined before trial on application of any party unless the court orders that the hearing be deferred until trial. ORCP 21 C.

•

See ORCP 21 F and 21 G regarding requirements for consolidation and preservation of certain defenses.

CIVIL PROCEDURE / §13.2

E.

Motion for Judgment on the Pleadings. A motion for judgment on the pleadings may be filed anytime after the pleadings are closed but within such time as not to delay the trial. ORCP 21 B.

F.

Motion to Make More Definite and Certain. A motion to make more definite and certain may be filed before a responsive pleading, or within 10 days after service of a pleading if no responsive pleading is permitted.

ORCP 21 D. •

The pleading must be amended or supplemented within 10 days after service of the order granting the motion or the court may strike the pleadings. ORCP 21 D.

G.

Motion to Strike. A motion to strike may be filed before a responsive pleading or, if no responsive pleading is permitted, within 10 days after service. ORCP 21 E.

H.

Intervention. A motion to intervene may be filed at any time before trial with court approval or when a statute, the ORCP, or the common law confers an unconditional right to intervene. ORCP 33 B, 33 C. •

A responsive pleading must be filed within 10 days after the court allows intervention. ORCP 33 D.

I.

Preliminary Injunction. Notice of the motion must be given to adverse parties at least five days before the date of the hearing, unless a different time period is fixed by the court. ORCP 79 C(1).

J.

When commencement of action is stayed by an injunction or a statutory prohibition, the time during which the action is stayed is not part of the time limit for commencement of action. ORS 12.210.

K.

Temporary Restraining Order (TRO). A motion for a preliminary injunction or a temporary restraining order may be made at any time after an action commences and before judgment. ORCP 79 A(2).

L.

•

ORCP 79 A(2) does not apply to TROs in domestic relations or elder abuse cases or under ORCP 83 provisional process rules. ORCP 79 E.

•

A TRO may not remain in effect longer than 10 days unless the court, before the TRO expires, for good cause extends the time or the opposing party consents. ORCP 79 B(2)(a).

•

The adverse party may appear and move for dissolution or modification on two days’ notice (or shorter if ordered by the court) to the party who obtained the order without notice. ORCP 79 B(4).

Recusal (Disqualification of a Judge). A party or attorney may disqualify a judge assigned to a case as follows:

19

CIVIL PROCEDURE / §13.4

Judicial Districts with Population of 100,000 or More, ORS 14.260 (4): •

The motion to disqualify must be made “at the time of the assignment of the case to a judge for trial or for hearing.” ORS 14.270.

•

Oral notice of intent to file the motion and affidavit is sufficient if the motion and affidavit are filed not later than the close of the next judicial day. ORS 14.270.

•

A motion to disqualify is not permitted after the judge has ruled on a petition or motion other than a motion to extend time (see exception for assignment to the presiding judge). ORS 14.270.

Judicial Districts with Population of Less than 100,000:

III.

IV.

20

(§13.3)

•

Uncontested Cases: The motion and affidavit may be filed at anytime before final determination of the matter. ORS 14.260(2).

•

Contested Cases: The motion and affidavit must be filed before or within five days after the matter is at issue on a question of fact (or within 10 days after the assignment of another judge), ORS 14.260(2); and no more than five days after the party or attorney receives notice of the assignment of a judge to serve pro tem in the county. ORS 14.260(3).

•

Disqualification is not permitted after the judge has ruled on any petition or motion (other than a motion to extend time).

ORS 14.260(3).

Receivers

A.

Appointment. Notice must be given to adverse parties at least five days before the hearing, unless a different time period is fixed by the court.

ORCP 80 C.

B.

Termination. Receivership may be terminated only on a motion served with at least 10 days’ notice to all parties appearing in the proceeding.

ORCP 80 G.

C.

Hearings. Notice must be sent to all interested persons at least five days before a hearing on a motion for appointment, discharge, accounting, and disposition of the receivership property, unless a different time period is fixed by the court. ORCP 80 F(3).

(§13.4)

Third-Party Practice

CIVIL PROCEDURE / §13.6

A.

Within 90 days after service of a summons and complaint on a defendant, that defendant, as a third-party plaintiff, may serve a summons and complaint on any nonparty as a matter of right. If 90 days have lapsed, the defendant may serve a summons and complaint by agreement of the appearing parties along with leave of the court. ORCP 22 C(1).

B.

A plaintiff against whom a counterclaim has been filed may file a summons and complaint against a third party under the same circumstances described for a defendant in ORCP 22 C(1).

ORCP 22 C(2).

C.

An answer or a motion under ORCP 7 C(2) to a third-party complaint must be filed within 30 days from date of service. ORCP 15 A. •

D.

V.

Other motions or responsive pleadings must be filed 10 days after service of the pleading moved against or to which the responsive pleading is directed. ORCP 15 A.

Persons other than the original parties may be made parties to a counterclaim or cross-claim in accordance with ORCP 28 and 29.

ORCP 22 D(1), 7 C(2). Any person so joined is treated as a defendant for purposes of service of summons and time to answer. ORCP 22 D(3).

(§13.5)

Substitution of Parties

A.

On the death or disability of a party, the court will allow an action to be continued by or against a personal representative or successor in interest, on motion made within one year of the death or disability. ORCP 34 B(1)-(2), 34 C; ORS 12.190.

B.

The court will allow an action to be continued against a personal representative or successor in interest within four months after the date of first publication of notice to interested persons but not more than one year after a party’s death. ORCP 34 B(2).

VI. (§13.6)

Dismissal Before Trial

If no counterclaim has been pleaded, an action may be dismissed by the plaintiff without order of the court by filing a notice of dismissal with the court and serving it on the defendant no less than five days before the day of trial.

ORCP 54 A(1).

•

Otherwise the plaintiff may not have a dismissal without the stipulation of all adverse parties who have appeared, ORCP 54 A(1)(b), or by order of the court. ORCP 54 A(2).

•

See ORCP 54 regarding whether dismissal is with or without prejudice.

21

CIVIL RIGHTS / §14.1

•

VII. (§13.7)

On notice or stipulation of dismissal, the court must enter a judgment of dismissal. ORCP 54 A(1).

Wrongful Use of Civil Proceedings

A.

It is not a wrongful use of a civil proceeding to file an action within 60 days of the running of the statute of limitations for the purpose of preserving and evaluating the claim when the action is dismissed within 120 days after filing. ORS 30.895(2).

B.

An action for the wrongful use of a civil proceeding must be commenced within two years after the cause of action arises. ORS 30.895, 12.110(1).

VIII. (§13.8)

References

See Uniform Trial Court Rules for pretrial procedures; APPELLATE PRACTICE AND PROCEDURE; TRIAL PROCEEDINGS; UNIFORM TRIAL COURT RULES. See generally CIVIL LITIGATION MANUAL (Oregon CLE 1993 & Supp 1999); OREGON CIVIL PLEADING AND PRACTICE (Oregon CLE 1994 & Supp 2001).

CIVIL RIGHTS I.

(§14.1) A.

22

Discrimination in Accommodations

Employment,

Housing,

and

Public

Generally. A person aggrieved by an unlawful practice, including discrimination in employment, housing, and public accommodations, may file a written, verified complaint with the Commissioner of the Bureau of Labor and Industries (BOLI) not later than one year after the unlawful practice, unless the person has filed a civil action in state or federal court alleging the same matters. ORS 659A.820(1)–(2). See §14.2.

•

A person who files a civil action under ORS 659A.885 or federal law waives the right to file a complaint with BOLI. ORS 659A.870(1).

NOTE: There is an exception for claims alleging violations of ORS 659A.145, ORS 659A.421, or comparable federal law. A person filing those claims does not waive the right to file an administrative complaint with BOLI, but the Commissioner shall dismiss the administrative complaint upon the commencement of a trial in the civil action.

•

Filing a complaint under ORS 659A.820 is not a condition precedent to filing a civil action. ORS 659A.870(2).

•

BOLI will notify the respondent (the person against whom the complaint is made) within 30 days of the filing. ORS 659A.820(4).

CIVIL RIGHTS / §14.2

B. II.

•

BOLI issues a finding of substantial evidence if an investigation discloses such evidence. ORS 659A.835. Following a finding of substantial evidence, BOLI prepares and serves formal charges on the respondent, unless the matter can be settled through conference and conciliation. ORS 659A.845. A hearing will be held that may result in a cease and desist order. ORS 659A.850.

•

BOLI issues a 90-day notice if BOLI dismisses the complaint. The notice must be in writing and notifies the complainant that a civil action against the respondent under ORS 659A.885 may be filed within 90 days of the date of the notice’s mailing and that the right to bring a civil action will be lost if not filed within the 90 days. ORS 659A.880.

•

A person who has filed a complaint under ORS 659A.820 need not receive BOLI’s 90-day notice under ORS 659A.880 before filing a civil action. ORS 659A.870(5).

When no complaint has been filed with BOLI, the complainant must file a civil action within the relevant statute of limitations. See §§ 14.2-14.6.

(§14.2)

Employment Discrimination

A.

Statutory Employment Discrimination Claims. Unlawful employment discrimination includes discrimination because of race, religion, color, sex, national origin, marital status, or age, ORS 659A.030, discrimination against injured workers, ORS 659A.040-ORS 659A.069, discrimination against disabled persons, ORS 659A.100-ORS 659A.145, discrimination against whistle blowers, ORS 659A.200-ORS 659A.236, discrimination in employee housing, ORS 659A.250-659A.262 and other specified employment discrimination. ORS 659A.300-659A.321.

Prohibited employment practices also include denying family leave to an eligible employee. ORS 659A.183. These statutory actions for unlawful employment discrimination must be commenced within one year after the occurrence of the unlawful practice unless a complaint has been timely filed under ORS 659A.820. ORS 659A.885; ORS 659A.875(1).

See supra §14.1 The one-year statute of limitations for employment discrimination claims runs from the date of the alleged unlawful employment practice, which is not necessarily the date that employment was terminated. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981). A plaintiff’s belated discovery of an employer’s unlawful motive does not delay the commencement of the statutory limitations period.

Huff v. Great Western Seed Co., 322 Or 457, 909 P2d 858 (1996).

B.

Common Law Discrimination Claims. A statutory employment discrimination claim does not abrogate the common-law tort of wrongful

23

CIVIL RIGHTS / §14.3

discharge, unless it is one of the claims for which broader remedies are authorized under ORS 659A.885(3). Holien v. Sears, Roebuck and Co., 66 Or App 911, 677 P2d 704, aff’d, 298 Or 76, 689 P2d 1292 (1984) (interpreting ORS 659.121, superseded in 2001 by ORS 659A.885 et seq.); Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990). The two-year statute of limitations for common law tort claims, ORS 12.110(1), applies to wrongful discharge claims. See Stupek v. Wyle Laboratories Corp., 327 Or 433, 437-38, 963 P2d 678, 680-81 (1998).

III.

C.

Tort Claims Notice. The notice of claim required under ORS 30.275 must be given within 180 days in any civil action alleging unlawful discrimination under ORS 659A.885 against a public body or any officer, employee, or agent. ORS 659A.875(4).

D.

Federal Employment Discrimination Claims. See §14.7 C.

(§14.3) A.

It is unlawful to discriminate in places of public accommodation on account of race, religion, color, sex, marital status, or national origin.

ORS 659A.403. It is unlawful to discriminate against disabled persons in places of public accommodations or in a labor or employment organization or agency. ORS 659A.142.

B.

A person aggrieved by discrimination in any place of public accommodation may file a written, verified complaint with BOLI not later than one year after the unlawful practice, unless the person has filed a civil action in state or federal court alleging the same matters. ORS 659A.820(1)-(2). See supra §14.1.

C.

When no complaint has been filed with BOLI pursuant to ORS 659A.820, the complainant may file a civil action. ORS 659A.885(5).

•

24

Public Accommodation Discrimination

CAVEAT: Following the repeal of ORS 659.121(3) in 2001, the statutory period for filing a civil action for public accommodation discrimination is unspecified. See Oregon Law Commission minutes from October 11, 2002, regarding the Civil Rights Work Group available from the commission or online at: www.willamette.edu/wucl/oregonlawcommission/home/pubs_minute s.html. In the absence of a statutory reference, a court could apply the one-year limitations period for employment discrimination claims, ORS 659A.875(1), the two-year statute of limitations applicable to general tort claims and various federal civil rights claims, ORS 12.110(1), or ORS 12.140, which provides that actions not otherwise provided for must be commenced within 10 years.

CIVIL RIGHTS / §14.5

IV.

V.

D.

Tort Claims Notice. The notice of claim required under ORS 30.275 must be given within 180 days in any civil action alleging unlawful discrimination under ORS 659A.885 against a public body or any officer, employee, or agent. ORS 659A.875(4).

E.

Federal Public Accommodation Discrimination Claims. See §14.7 D.

(§14.4)

Housing Discrimination

A.

Housing Discrimination Overview. Unlawful housing discrimination includes advertising, selling, leasing, renting, brokering, appraising, or lending for real property transactions that discriminates on the basis of race, color, sex, marital status, source of income, familial status, religion, or national origin, ORS 659A.421, or on the basis of disability, ORS 659A.145.

B.

Statute of Limitations/BOLI Filing. A person aggrieved by an unlawful practice, including discrimination in housing, may file a written, verified complaint with BOLI not later than one year after the unlawful practice, unless the person has filed a civil action in state or federal court alleging the same matters. ORS 659A.820(1)-(2). See supra §14.1. A civil action for housing discrimination must be filed not later than two years after the occurrence or the termination of the unlawful practice. ORS 659A.875(3). The two-year period does not include any time during which an administrative proceeding was pending with respect to the unlawful practice. ORS 659A.875(3).

C.

Tort Claims Notice. The notice of claim required under ORS 30.275 must be given in any civil action alleging unlawful discrimination under ORS 659A.885 against a public body or any officer, employee, or agent within 180 days. ORS 659A.875(4).

D.

Federal Housing Discrimination Claims. See §14.7 E.

(§14.5)

Discrimination Against Disabled Persons

A.

It is unlawful to discriminate against disabled persons in employment, ORS 659A.112, in employment agencies, labor organizations, or places of public accommodations, ORS 659.142, or in housing and real property transactions, ORS 659A.145.

B.

A person aggrieved by an unlawful practice, including discrimination against disabled persons, may file a written, verified complaint with BOLI not later than one year after the unlawful practice, unless the person has filed a civil action in state or federal court alleging the same matters. ORS 659A.820(1)-(2). See §14.1 A.

C.

A civil action for unlawful employment discrimination against a disabled person must be filed within one year after the unlawful practice occurred,

25

CIVIL RIGHTS / §14.6

unless a complaint has been timely filed with BOLI under ORS 659A.820. ORS 659A.875(1).

D.

A civil action for unlawful housing discrimination against a disabled person must be filed within two years after the occurrence or the termination of the unlawful practice. ORS 659A.875(3). The two-year period does not include any time during which an administrative proceeding was pending with respect to the unlawful practice. ORS 659A.875(3).

E.

The notice of claim required under ORS 30.275 must be given in any civil action alleging unlawful discrimination under ORS 659A.885 against a public body or any officer, employee, or agent within 180 days.

ORS 659A.875(4).

F.

The Oregon Assistance Animal Act (OAAA) provides certain rights in public accommodation, public transportation, and in renting housing for a person who is blind, deaf, or physically impaired, or an assistance animal trainer, related to the person’s use or possession of a dog guide, hearing ear dog, or assistance animal. ORS 346.610 et seq., ORS 346.640 et seq., and ORS 346.680 et seq. There is a private right of action for discrimination in renting housing on the basis of use or possession of a dog guide, ORS 346.630, a hearing ear dog, ORS 346.660, or an assistance animal. ORS 346.690.

•

G.

VI.

26

Federal Law •

Employment discrimination on the basis of disability: See §14.7 C.

•

Public accommodation discrimination on the basis of disability: See §14.7 D.

•

Housing discrimination on the basis of disability: See §14.7 E.

(§14.6) A.

CAVEAT: There is no specified statute of limitations for filing a civil action under the OAAA. In the absence of a time limit in the Act, a court could apply the two-year statute of limitations applicable to housing discrimination, ORS 659A.875(3), the two-year personal injury statute applicable to many federal discrimination claims, ORS 12.110(1), or ORS 12.140, which provides that actions not otherwise provided for must be commenced within 10 years.

Discrimination in Education

A person aggrieved by discrimination in higher education must file a notice of claim as required by ORS 30.275 within 180 days of the alleged discrimination and must file a grievance with the community college board or the State Board of Higher Education. ORS 659.860. The

CIVIL RIGHTS / §14.7

complainant may file a civil action for equitable relief, damages, or both 90 days after filing the grievance. ORS 659.860.

B. VII.

A civil action for unlawful discrimination in higher education must be filed within one year after the grievance is filed. ORS 659.860.

(§14.7) A.

Generally. Various federal statutes provide private rights of action for a wide variety of claims of discrimination and violations of civil rights.

Some of these, and the relevant statutes of limitations, are discussed below.

•

B.

Federal Civil Rights and Discrimination Claims

PRACTICE TIP: State law statutes of limitations for personal injury actions are applied to various federal civil rights claims; however, the Supreme Court has held that state notice-of-claim requirements cannot be applied to federal civil rights claims such as 42 USC § 1983, whether brought against public entities in federal or state court. Felder v. Casey, 487 US 131, 140, 108 S Ct 2302, 2307-2308 (1988). However, state law claims against public entities are governed by the Oregon Tort Claims Act, ORS 30.275, whether brought in state or federal court.

Federal Civil Rights Claims That Use the State Statute of Limitations.

The federal civil rights laws found in 42 USC § 1981 (contracts), 42 USC § 1982 (property), 42 USC § 1983 (state action), 42 USC § 1985 (conspiracy), and 42 USC § 1986 (conspiracy) do not include a statute of limitations. The courts characterize these claims as personal injury actions, and the applicable limitation is the state statute of limitations.

Thus, the two-year limitation of ORS 12.110(1), the general tort statute, applies in the district of Oregon. See Wilson v. Garcia, 471 US 261, 105 S Ct 1938, 85 L Ed2d 254 (1985); Addisu v. Fred Meyer, Inc., 198 F3d 1130, 1140 (9th Cir 2000); Davis v. Harvey, 789 F2d 1332 (9th Cir 1986).

This two-year period begins to run when the plaintiff knows or has reason to know of the injury that is the basis of the action. McCoy v. San Francisco, City and County, 14 F3d 28, 29 (9th Cir 1994). Jurisdiction is obtained under 28 USC § 1343(a).

•

Contracts. 42 USC § 1981 provides for equal rights as follows: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 42 USC § 1981 prohibits not only discriminatory

27

CIVIL RIGHTS / §14.7

government interference with private contracts but purely private discrimination in contracts and provides a private right of action.

Rivers v. Roadway Express, 511 US 298, 114 S Ct 1510, 128 L Ed2d 274 (1994).

C.

28

•

Property. 42 USC § 1982 provides that: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” Section 1982 provides a private right of action for racial discrimination against citizens independent of the rights granted in the Fair Housing Act of 1968.

See § 14.7 E.

•

State Action. 42 USC § 1983 provides a private right of action for “any citizen of the United States or other person” for violations of civil rights resulting from state action.

•

Conspiracy. 42 USC §§ 1985 and 1986 prohibit conspiracies to interfere with civil rights and provide a private right of action for enforcement of those civil rights.

Federal Employment Discrimination Law. Federal employment discrimination claims often have administrative time lines and may require that administrative remedies be exhausted first. The following are some examples of claims and applicable agency requirements.

•

Title VI of the Civil Rights Act of 1964, 42 USC §§ 2000d et seq., prohibits discrimination on the grounds of race, color, or national origin in any program or activity receiving federal financial assistance. 42 USC § 2000d-1 authorizes federal agencies to effectuate the provisions of 42 USC § 2000d by issuing rules, regulations, or orders of general applicability. An administrative complaint must be filed with the respective federal agency not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible department official or designee. 28 CFR § 42.107.

•

Title VII of the Civil Rights Act of 1964, 42 USC §§ 2000e et seq., prohibits discrimination in employment based on race, religion, sex, or national origin. A charge under this section must be filed within 180 days after the alleged unlawful employment practice occurred, unless the person has first instituted proceedings with a state agency (i.e., BOLI in Oregon), and waited 60 days to file with the Equal Employment Opportunity Commission (EEOC). In that case, the EEOC charge must be filed within 300 days after the alleged unlawful employment practice occurred, or within 30 days after

CIVIL RIGHTS / §14.7

receiving notice that the state agency has terminated its proceedings, whichever is earlier. 42 USC § 2000e-5(e)(1); Kang v. U. Lim America, Inc., 296 F3d 810 (9th Cir 2001). Furthermore, because Oregon has its own statute prohibiting such discrimination, a claimant must file a charge with BOLI and wait 60 days before filing with the EEOC. (See §14.5 regarding the time limits for filing claims under the Oregon discrimination statutes.) 42 USC § 2000e-5(c); Laquaglia v. Rio Hotel & Casino, Inc., 186 F3d 1172, 1176 (9th Cir 1999). The filing deadline under 42 USC § 2000e-5 acts as a statute of limitations. Failure to file a timely charge bars a subsequent action in federal court, unless the court finds a basis to apply equitable doctrines such as tolling or estoppel. National R.R. Passenger Corp v.

Morgan, 122 S Ct 2061, 2077, 153 L Ed2d 106 (2002). When the EEOC ceases its administrative process, the claimant will be issued a Notice of Right to Sue in court; a civil action will be barred unless it is filed within 90 days of receipt of the Notice. 42 USC § 2000e16(c). Note: Separate exhaustion and timeliness requirements apply to a federal employee alleging Title VII-related claims against a federal employer. See 29 CFR Part 1614. For example, federal employees must consult an EEOC counselor within 45 days of the date of the allegedly discriminatory matter prior to filing a claim of discrimination on the basis of race, color, religion, sex, national origin, age, or handicap against certain federal employers. 29 CFR § 1614.103, 29 CFR § 1614.105 et seq. Johnson v. Henderson, 314 F3d 409, 412 (9th Cir 2002).

•

Title I of the Americans with Disabilities Act (ADA) of 1990, 42 USC §§ 12101-12117, prohibits employment discrimination against qualified individuals on the basis of their disability by a “covered entity,” i.e., employer, employment agency, labor organization, or joint labor-management committee having 15 or more employees. 42 USC § 12111. See Clackamas Gastroenterology Assocs., P.C. v.

Wells, 271 F3d 903 (9th Cir 2001), cert granted, 123 S Ct 31, 153 L Ed2d 893 (US 2002). The requirements and time limits for filing an ADA charge with the EEOC and in court are the same as those described in the previous paragraph under Title VII. See 42 USC § 12117(a) (incorporating the enforcement procedures set forth in Title VII, 42 USC § 2000e-5). O’Riley v. United States Bakery, 2002 US Dist LEXIS 25538 (D Or 2002); Santa Maria v.

Pacific Bell, 202 F3d 1170, 1176 (9th Cir 2000). Note: Separate exhaustion and timeliness requirements apply to a federal employee alleging a disability discrimination claim against a federal employer.

29

CIVIL RIGHTS / §14.7

See 29 CFR §§ 1614.101 et seq. See also above paragraph under Title VII.

30

•

The Rehabilitation Act of 1973, 29 USC § 794(a) (referred to as Section 504), protects handicapped individuals from discrimination in employment in programs receiving federal financial assistance. The remedies, procedures, and rights set forth in Title VI are available to any person aggrieved by a recipient of federal funds under 29 USC § 794. A complaint must be filed within 180 days of the alleged act of discrimination (except 90 days for the Railroad Retirement Board), although the agency may extend the deadline for good cause. 29 CFR § 100.570. The statute of limitations for a Section 504 claim is provided by the analogous state law. See Daviton v. Columbia/HCA Healthcare Corp., 241 F3d 1131, 1135-36 (9th Cir 2000). Oregon’s two-year statute of limitations for personal injury actions, ORS 12.110(1), most likely will be applied. See Pieri v. Dammasch State Hosp., 77 F3d 490 (9th Cir 1996) (unpublished opinion). Note: Separate exhaustion and timeliness requirements apply to a federal employee alleging a disability discrimination claim against a federal employer. See 29 CFR §§ 1614.101 et seq.

•

The Age Discrimination in Employment Act (ADEA), 29 USC §§ 621-634, protects against age discrimination and applies to employers with 20 or more employees in the current or preceding calendar year.

A claimant is required to file a charge with the EEOC within 180 days after the alleged discrimination occurs, or within 300 days in “deferral” states such as Oregon. 29 USC § 626(d)(2). Prior to filing with the EEOC, the claimant must file a charge under the comparable state law and wait 60 days before filing with the EEOC. 29 USC § 633(b). In claims under the ADEA, the 300-day period begins to run when the employee knows or should have known that an unlawful employment practice has been committed. Aronsen v. Crown Zellerbach, 662 F2d 584, 593 (9th Cir 1981). When the EEOC ceases its administrative process, the claimant will be issued a Notice of Right to Sue in court; a civil action under the ADEA will be barred unless it is filed within 90 days of receipt of the Notice. Note: Separate exhaustion and timeliness requirements apply to a federal employee alleging an age discrimination claim against a federal employer. See 29 USC § 633a, 29 CFR Part 1614.101 et seq. See also paragraph above on Title VII.

•

The Equal Pay Act, 29 USC §§ 201 et seq., 29 USC § 206(d), prohibits discrimination based on sex in employment pay. An action must be filed within two years after the cause of action accrued,

CIVIL RIGHTS / §14.7

except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. 29 USC § 255(a); E.E.O.C. v. First Citizens Bank of Billings, 758 F2d 397, 401 (9th Cir 1985). This time limit is more generous than that of Title VII. County of Washington v. Gunther, 452 US 161, 175, 101 S Ct 2242, 2250, 68 L Ed2d 751 (1981).

D.

Federal Public Accommodations and Public Services Discrimination Law. Federal claims for discrimination in public accommodations or by entities providing public services may require that administrative remedies be exhausted first. They also often have administrative time lines. Some of the claims use the state personal injury time limit. The following are examples of some of the applicable causes of action.

•

The Rehabilitation Act of 1973, 29 USC § 794(a) (Section 504), prohibits discrimination on the basis of disability by programs and activities receiving federal financial assistance. Kling v. County of Los Angeles, 633 F2d 876 (9th Cir 1980). The state statute of limitations for personal injury claims applies. See supra § 14.7 C.

•

Title II of the Civil Rights Act of 1964, 42 USC §§ 2000a et seq., prohibits discrimination in places of public accommodation because of race, color, religion, or national origin and provides a private right of action for injunctive relief but not damages. A claimant is not required to exhaust administrative remedies but must give 30 days’ written notice to any state or local agency that has jurisdiction prior to filing suit. 42 USC § 2000a-3(c).

•

•

CAVEAT: The Oregon statute most analogous to Title II of the Civil Rights Act of 1964, 42 USC §§ 2000a et seq., is ORS 659A.403. ORS 659A.403 does not have an explicit statute of limitations. In the absence of a time limit in the statute, a court could apply the two-year personal injury statute of limitations, ORS 12.110(1), or ORS 12.140, which provides that actions not otherwise provided for must be commenced within 10 years.

Title II of the Americans with Disabilities Act (ADA), 42 USC § 12131, prohibits discrimination in the provision of public services and programs by a “public entity” and provides a private right of action, including damages. The remedies available are the same as those provided under Section 504, the Rehabilitation Act of 1973, 29 USC § 794(a). Title II of the ADA does not require exhaustion of administrative remedies, and thus the applicable statute of limitations is the two-year personal injury statute, ORS 12.110(1). See Macy v.

SAIF Corp., 2000 US Dist LEXIS 2905 (D Or 2000).

31

CIVIL RIGHTS / §14.7

•

E.

Title III of the American with Disabilities Act (ADA), 42 USC § 12182(a), prohibits discrimination on the basis of disability in places of public accommodation and provides a private right of action for injunctive relief, but not damages, to “any person who is being subjected to discrimination on the basis of disability” or who has “reasonable grounds for believing that such person is about to be subjected to discrimination.” Courts characterize a claim under the ADA as a personal injury action, and they apply the personal injury statute of limitations of the state where the claim arose. Thus, in Oregon, the 180-day Oregon Tort Claims Act statute of limitations, ORS 30.275(2), and the two-year personal injury statute of limitations, ORS 12.110(1), apply. The limitations period begins to run when the plaintiff discovers the injury. Pickern v. Holiday Quality Foods, Inc., 293 F3d 1133 (9th Cir), cert den, 123 S Ct 559 (2002).

Federal Fair Housing and Housing Discrimination Law. The following are some of the federal claims that are available for discrimination in housing.

•

The Fair Housing Act, 42 USC §§ 3601 et seq., and the Fair Housing Amendments Act of 1988 (FHAA), 42 USC § 3604, prohibit discrimination in housing on the basis of race, color, national origin, religion, sex, familial status, or handicap. Establishing a prima facie case of disability discrimination in housing under Section 504 and the FHAA is similar. Green v. Housing Auth. of Clackamas Co., 994 F. Supp. 1253, 1255 (D Or 1998). A suit must be commenced not later than two years after the occurrence or termination of an alleged discriminatory housing practice. 42 USC § 3613(a)(1)(A). The computation of the two-year period does not include any time during which an administrative proceeding was pending with respect to a complaint or charge based upon such discriminatory housing practice. 42 USC § 3613(a)(1)(B).

•

32

CAVEAT: An aggrieved person under the federal Fair Housing Act may file an administrative complaint with the U.S. Department of Housing and Urban Development (HUD). That complaint must be filed within one year of the discriminatory act.

If a complaint has been filed with HUD, then the two-year statute of limitations is tolled until HUD issues a charge of discrimination or dismisses the complaint. If the complaint is dismissed, the complainant is allowed 90 days to file a civil action. 42 USC §§ 3610-3613.

CIVIL RIGHTS / §14.7

F.

•

The Equal Credit Opportunity Act (ECOA), 15 USC §§ 1691 et seq., generally makes it unlawful for any creditor to discriminate against a credit applicant on the basis of race, color, religion, national origin, sex, marital status, or age. The ECOA also applies to claims of discrimination against residents of a segregated neighborhood who are denied credit because of the racial makeup of their area. See Miller v. American Express Co., 688 F2d 1235, 1239 (9th Cir 1982).

The statute of limitations is two years from the date of the occurrence of the alleged discrimination, unless filed administratively and an administrative agency action commences within two years of the occurrence or the attorney general commences a civil action within two years from the date of the occurrence. In either of these cases the victim may bring suit not later than one year after the commencement of that proceeding or action. 15 USC § 1691 (f). 15 USC 1691e (f).

See Farrell v. Bank of New Hampshire-Portsmouth, 929 F2d 871 (1st Cir 1991).

•

Other claims related to discrimination in housing can be made under 42 USC § 1982 (see supra § 14.7 B); Title II and Title III of the Americans with Disabilities Act, 42 USC §§ 12131-12133, §§ 1218112182 (see supra § 14.7 D); and the Rehabilitation Act of 1973, 29 USC § 794 (Section 504) (see supra § 14.7 C).

Federal Education Discrimination Law •

The Equal Educational Opportunities Act of 1974, 20 USC §§ 1701 et seq., provides that all children enrolled in public schools are entitled to equal educational opportunity without regard to race, color, sex, or national origin, 20 USC § 1701, and an individual denied an equal educational opportunity may sue for appropriate relief in federal court. 20 USC § 1706.

•

•

PRACTICE TIP: The federal statute leaves it to the district courts to determine the scope of the remedy and manifests the purpose not to limit judicial power but to guide and channel its exercise.

Morgan v. Kerrigan, 530 F2d 401 (1st Cir 1976). See supra § 14.6. A civil action for unlawful discrimination in higher education must be filed within one year after the grievance is filed. ORS 659.860. When pursuing a private right of action under 20 USC § 1706 for other levels of education, the same one-year time limit may apply.

Title IX of the Education Amendments of 1972, 20 USC §§ 16811688, prohibits discrimination on the basis of sex in educational programs receiving federal financial assistance. Comparing Title IX with civil rights statutes such as 42 USC § 1983 and Title VI, the 33

COMPENSABLE CRIMES / §15.2

Ninth Circuit has implied that the state statute of limitations for personal injury claims would be applied in a Title IX case, Taylor v.

Regents of Univ. of Cal., 993 F2d 710, 712 (1993). See also Oden v.

N. Marianas College, 284 F3d 1058 (9th Cir 2002). Thus, generally the two-year statute of limitations of ORS 12.110(1) will apply. (But see ORS 659A.875.)

•

The Rehabilitation Act of 1973, 29 USC § 794(a) (Section 504), prohibits discrimination on the basis of disability by programs and activities receiving federal financial assistance and provides a private right of action. The exhaustion of administrative remedies and timelines described in supra § 14.7 C also apply to claims based on discrimination in education. Generally, the two-year statute of limitations of ORS 12.110(1) will apply, although there are exceptions, such as ORS 659A.875.

•

The Individuals with Disabilities Education Act (IDEA), 20 USC §§ 1400-1454, provides a remedy for a handicapped child who has been denied the right to a free appropriate public education. The two-year statute of limitations of ORS 30.275(2) applies to IDEA claims in Oregon. S.V. v. Sherwood Sch. Dist., 254 F3d 877 (9th Cir 2001).

IDEA requires that administrative appeal procedures be exhausted before seeking judicial review under it or other federal laws protecting the rights of children with disabilities. 20 USC § 1415(1).

See supra § 14.6.

VIII. (§14.8)

References

6 FED PROC, L ED, Civil Rights §§ 11:1 et seq.; CIVIL RIGHTS ACTIONS, Cook, Sobieski, (Matthew Bender); HOUSING DISCRIMINATION, Robert G. Schwemm (Clark, Boardman, Callaghan) COMPENSABLE CRIMES I.

II. 34

(§15.1)

Generally

A.

Notwithstanding ORS 12.110, the victim of a compensable crime or the victim’s representative must bring an action within five years after the commission of the crime. ORS 147.065.

B.

To be eligible for compensation, the victim must notify the appropriate law enforcement officials of the crime within 72 hours after its perpetration, unless the Department of Justice finds that good cause exists for the failure to notify law enforcement. ORS 147.015(2).

(§15.2)

Procedure

CONFLICT OF LAWS / §16.2

III.

A.

The applicant for compensation must follow the procedure set forth in ORS 147.015 and 147.105. This procedure includes filing the application for compensation with the department within 6 months of the injury unless the department gives a time extension for good cause.

B.

The filing of additional information or amendment of the application for compensation relates back to the filing of the original application.

ORS 147.105(5).

(§15.3)

References

See generally 1 CRIMINAL LAW ch 12 (Oregon CLE 1994 & Supp 1998).

CONFLICT OF LAWS I.

(§16.1)

Generally

The statute of limitations in a conflict-of-laws situation is governed by the Uniform Conflicts of Laws–Limitations Act (UCLLA), ORS 12.410-12.480.

II.

(§16.2)

Application

A.

The UCLLA requires application of the statute of limitations that corresponds to the substantive law forming the basis of the plaintiff’s claim. ORS 12.430. See Cropp v. Interstate Distributor Co., 129 Or App 510, 880 P2d 464 (1994).

B.

To determine which state’s substantive law applies, Oregon courts first consider whether there is actually a conflict between the competing states’ substantive laws. Webber v. Olsen, 157 Or App 585, 590, 971 P2d 448 (1998), rev’d on other grounds, 330 Or 189 (1999). Assuming there is a conflict between the competing states’ laws, the next question is which state had the most significant relationship to the parties and the transaction. The law of the state with the most significant relationship to the parties and the transaction will be applied unless the other state’s interest is so important that its laws must be applied. See Stricklin v.

Soued, 147 Or App 399, 401, 936 P2d 398 (1997); see also Casey v.

Manson Construction and Engineering Co., 247 Or 274, 287-288, 428 P2d 898 (1967).

C.

If the court determines that the limitations period of another state applies, but it is substantially different from Oregon’s and has not afforded the plaintiff a fair opportunity to sue, or the other limitations period imposes an unfair burden in defending against the claim, Oregon’s limitation will apply. ORS 12.450.

D.

The UCLLA does not revive a claim barred before January 1, 1988.

ORS 12.460(1)-(2).

35

CONSTRUCTION BOND CLAIMS / §17.2

III.

(§16.3)

References

See generally CONTRACT LAW IN OREGON ch 11 (Oregon CLE 1991 & Supp 1999); 1 INSURANCE §§11.7B11.9 (Oregon CLE 1996 & Supp 1999).

CONSTRUCTION BOND CLAIMS I.

(§17.1)

Licensing

Whether potential claimants must be licensed with the Oregon Construction Contractors Board (CCB) should be considered. (For example, plumbers and electricians must have an additional license in their respective trades.) See CONSTRUCTION LIENS. There is, however, a CCB licensing exception for “[a] person who is constructing, altering, improving or repairing a structure located within the boundaries of any site or reservation under the jurisdiction of the Federal Government.” ORS 701.010(2). Licensed architects and engineers (and certain other professionals) who are operating within the scope of their respective license are also exempt from CCB licensing. ORS 701.010(7).

II.

36

(§17.2)

Private Projects

A.

Generally. There is no statutory requirement mandating project-specific performance or payment bonds on private construction projects in Oregon. If such a bond is in place, its terms must be reviewed to determine who can make a claim and the time and manner in which to make the claim. A claimant may, however, be able to make a claim against the contractor’s CCB bond.

B.

CCB Claims •

Generally. ORS 701.145 sets forth the time limitations for CCB bond claims. In very general terms, claims must be received by the CCB within one year of the event giving rise to the claim. Also, the CCB OARs relating to the claims should be consulted. The CCB frequently amends its OARs; be sure that you have the correct version. See www.ccb.state.or.us.

•

Residential vs. Commercial. The procedure for filing a claim against a contractor’s bond depends on whether the claim involves a residential structure, a small commercial structure, or a large commercial structure. ORS 701.145, 701.146. The terms residential structure, small commercial structure, and large commercial structure are defined in ORS 701.005. Note that there are established priorities for satisfying claims on a contractor’s bond. ORS 701.150.

•

Claims against residential and small commercial structures are primarily managed through an administrative claims process initiated by completing and filing a CCB claims form.

CONSTRUCTION BOND CLAIMS / §17.3

•

III.

(§17.3)

For a claim arising out of construction of a large commercial structure, the claimant must first obtain a judgment in a court of competent jurisdiction. Within 90 days of filing a complaint, the claimant must send a copy of the complaint to the CCB and the surety by certified mail, return receipt requested. Although neither the CCB nor the surety is listed as a party to the lawsuit, notice is necessary to give the surety the opportunity to intervene and defend.

Within 30 days after entry of a judgment, a certified copy of the judgment must be delivered to the CCB and the surety. Thereafter, the CCB may issue a proposed order and, if not properly and validly objected to, a final order will be issued.

Public Projects

A.

Generally. Bonding statutes were adopted for public works projects in lieu of suppliers’ and subcontractors’ construction lien rights on private projects. See e.g., Multnomah Co. v. United States F. Etc. Co., 87 Or 198, 203, 170 P 525 (1918). Note, however, that not every public works project is required to have a payment or performance bond. Public bodies may except certain categories of projects from the bonding requirements or declare a project-specific emergency, which obviates the bonding requirements. Thus, although there are no preclaim requirements for public works bond claims under either Oregon’s Little Miller Act or the federal Miller Act, potential claimants may wish to confirm the existence of a bond through either an Oregon Public Records Request or a federal Freedom of Information Act request before agreeing to work on a public works project.

B.

Oregon’s Little Miller Act. To perfect an Oregon Little Miller Act claim, notice must be given by all protected parties, except claims for contributions to an employee benefit plan, within 120 days after their last substantial day on project. ORS 279.528. In City of The Dalles v.

D’Electric Co., 105 Or App 46, 803 P2d 771 (1990), the court held that replacement or corrective materials can be used to calculate the notice timing requirements under the Little Miller Act. This is different from the timing under Oregon’s construction lien statutes, which generally do not permit repair work to qualify as the valid last day. A general form of notice is provided in the statutes. ORS 279.528(3). ORS 279.526 governs who must receive a notice of claim under the Oregon Little Miller Act. (See also OAR 137-040-0045, which addresses Little Miller Act notices to the state.)

•

An action on an Oregon Little Miller Act bond must be instituted no later than two years after the person last provided labor or materials – not two years from when the notice was given. ORS 279.536(3).

37

CONSTRUCTION LIENS / §18.2

C.

The Federal Miller Act. Persons furnishing labor or materials to a project for the federal government may be protected by what is commonly known as the Miller Act (40 USC §§270a-270d). If the claimant does not have a direct contractual relationship with the prime contractor, a claimant must give written notice to the contractor within 90 days from the date the claimant last performed labor or furnished material or services for which a claim is made. Note, however, the persons entitled to make a Miller Act claim are much more limited than those entitled to make a claim under Oregon’s Little Miller Act. •

D.

A suit pursuant to the Miller Act must be brought in the United States District Court and in the name of the United States on behalf of the claimant. The suit must be commenced within one year after the day on which the last material was supplied or labor or services were performed.

Notice Received. It is suggested that the claims notices under Oregon’s Little Miller Act and the federal Miller Act be received before the relevant time period expires. See Pepper Burns Insulation, Inc. v. Artco Corporation, 970 F2d 1340 (4th Cir 1992).

CONSTRUCTION LIENS

I.

(§18.1)

Contractor Licensing

ORS 701.065 and the current version of Oregon Construction Contractors Board (CCB) administrative rules (OAR ch 812) should be reviewed before a lien is perfected or foreclosed. A contractor that was not properly licensed with the CCB must obtain a valid CCB license before a claim of construction lien is perfected or foreclosed. A special exception relating to construction liens for contractors whose CCB license has lapsed permits a lapsed contractor to proceed with the exercise of its rights even before its license has been renewed.

See ORS 701.065(2)(b); OAR 812-003-0025(7).

II.

(§18.2) A.

38

Warnings

How to Count Days – Not Procedural. Because ORS 174.120 and ORCP 10 (which provide certain rules on how to count days) apply only to the computation of time in procedural statutes and rules, they generally are not controlling for construction lien purposes. In Tyree v.

Tyree, 116 Or App 317, 840 P2d 1378 (1992), the court ruled that neither ORS 174.120 nor ORCP 10 extends the time period for a person to give a tort claim notice under ORS 30.275(2)(a). Similarly, ORS 87.035, like other construction lien statutes, is a substantive statute. See Lemire v. McCollum, 246 Or 418, 428-429, 425 P2d 755 (1967)

CONSTRUCTION LIENS / §18.3

(construction liens were unknown at common law and are purely statutory).

III.

B.

FDCPA. The Fair Debt Collection Practices Act (FDCPA), 15 USC §1601 et seq., requires certain disclosures on communications with consumer debtors and provides certain timelines for particular events.

When a construction lien relates to a consumer debt, the potential application of the FDCPA disclosures and timelines should be considered in the first notice and all subsequent notices. See CONSUMER LAW IN OREGON ch 22 (Oregon CLE 1996 and Supp 2000).

C.

Manner of Notices. Most notices required by Oregon construction lien statutes must be in writing and delivered in person or delivered by registered or certified mail. Notices pursuant to ORS 87.093 (“Information Notice to Owner”) may also be proved by a United States Postal Service certificate of mailing. ORS 87.018.

(§18.3) A.

Prelien Notices

Notice of Right to a Lien (Owner, ORS 87.021; Mortgagee, ORS 87.025(3)). If a person does not have a contract with the owner of an improvement, the person’s right to perfect a claim of lien may be conditioned on the requirement that he or she provide a notice of right to a lien to the owner of the site. ORS 87.021. To maintain priority over lenders, claimants who provide any materials need to provide notice to the lender. ORS 87.025(3). The notice relates back to protect work provided after a date that is eight days (not including Saturdays, Sundays, and other holidays as defined in ORS 187.010; i.e., count only “business days”) before the notice is delivered or mailed. ORS 87.021(1), 87.025(3).

•

“Progress of the Improvement.” Although notice is mailed within the calendar-day requirement of ORS 87.021, it must also be given “during the progress of the improvement” to be effective. Thus, although the notice in Sun Solutions v. Brandt, 300 Or 317, 709 P2d 1079 (1985), was timely from a calendar-day perspective, it was ineffective because the improvement was completed before the owner received the notice. Accordingly, the notice was not “during the progress of the improvement” as required by ORS 87.021.

•

The 2001 Oregon Legislature amended ORS 87.021(1), which may affect the potential lien claimants who need to send the notice of right to a lien to owners. During the first 2002 Special Session, the legislature delayed the effective date of the 2001 law until January 1, 2004. 2002 First Special Session ch 6, §8.

39

CONSTRUCTION LIENS / §18.5

IV.

B.

Reply to Demand for Information. If all that has been sent is a notice of right to a lien, then an owner or a mortgagee has the right to demand certain information. This information must be provided within 15 business days after receipt of this request for information.

ORS 87.025(4), 87.027.

C.

Information Notice to Owner. An “Information Notice to Owner” must be given only by original contractors who contract for residential construction or improvements as defined in ORS 87.093(7) when the contract exceeds $1,000, and must be given in the form adopted by the CCB. ORS 87.093. When the contract initially exceeds $1,000 and is in writing, the notice must be given at the time that the contract is signed by the owner or the owner’s agent. If the original contractor’s agreement is oral or initially is less than $1,000, the notice must be mailed within five days after the contract is made or five days after the original contractor knows the contract price will exceed $1,000, respectively. ORS 87.093(2)-(3).

D.

Notice of Nonresponsibility. If applicable, an owner must, within three days after the owner obtains knowledge of the construction, give notice that the owner will not be responsible for the same by posting a notice in writing to that effect in some conspicuous place on the land or the improvement situated on it. ORS 87.030.

(§18.4) A.

Labor, Materials, or Equipment Claimants. For lien claimants who supplied labor, materials, or equipment, the claim of construction lien must be perfected “not later than 75 days after the person ceased to provide labor, rent equipment or furnish materials or 75 days after completion of construction, whichever is earlier.” ORS 87.035.

•

B.

V.

40

No repair or trifling work. A person cannot postpone the statutory deadline for filing a lien claim by the performance of “every trifling omission” or by repairing his or her own substandard work. Fox & Co. v. Roman Catholic Bishop, 107 Or 557, 559, 215 P 178 (1923).

Other Claimants. For all other lien claimants, the claim of construction lien must be perfected “not later than 75 days after completion of the construction.” ORS 87.035.

(§18.5) A.

Claim of Construction Lien

Postlien Notices

Notice of Filing Lien Claim. After a person records a lien, the person must, within 20 days after the lien is recorded, mail to all the owners and

CONSTRUCTION LIENS / §18.8

mortgagees a written notice that a lien claim has been recorded, together with a copy of the lien. ORS 87.039.

VI.

B.

Notice of Intent to Foreclose. At least 10 days before filing the foreclosure action, the claimant must send a notice to all owners and mortgagees of the claimant’s intent to foreclose the construction lien.

ORS 87.057(1). Notice of a lien claimant’s intent to foreclose must be given to every mortgagee regardless of whether such mortgagee is a necessary party to the foreclosure. Molalla Pump v. Chaney, 42 Or App 789, 791-792, 601 P2d 874 (1979).

C.

Reply to Demand for Information. If a notice of intent to foreclose has been provided and an owner makes a request for information, the lien claimant must respond to that request within five days. ORS 87.057(2).

(§18.6)

Foreclosure

A lien foreclosure action must be filed on a claim of construction lien no later than 120 days after recording of the claimant’s lien. Lien claimants should not rely on the filing of a lien foreclosure action by another lien claimant as fulfilling this requirement for all lien claimants. Each lien claimant should foreclose its own lien by a claim, cross-claim, or counterclaim filed within the 120-day period and by service on the required parties within the time required

by ORS 12.020. ORS 87.055.

VII.

(§18.7)

Lien Release Bond or Cash Deposit

A.

Lien Release Bond or Cash Deposit. Owners of an improvement or land subject to a lien or any other interested party may file a lien release bond or a cash deposit whose effect is to transfer the lien claim’s attachment from the property onto the bond or deposit. ORS 87.076.

B.

Notice of Filing a Lien Release Bond or Cash Deposit. The lien claimant is entitled to notice that a lien release bond or cash deposit (see ORS 87.076) has been filed within 20 days after the bond is filed or the cash is deposited. ORS 87.078(1). The failure to timely and properly provide this notice means that the lien release bond or cash deposit has no legal effect on the lien claim. ORS 87.078(2). See Tualatin Valley Builders Supply v. TMT Homes, 179 Or App 575, 41 P3d 429 (2002).

C.

Petition to Determine Adequacy. A petition to determine the adequacy of a lien release bond must be filed within 10 days of receipt of the notice of filing. Not later than two days after the petition is filed with the court, the lien claimant who challenged the bond must give notice of the petition to the person who filed the bond. ORS 87.086.

VIII. (§18.8)

References

41

CONTINUING TORT / §19.3

See generally FORECLOSING SECURITY INTERESTS ch 5 (Oregon CLE 1997 & Supp 2001); 2 CONSTRUCTION LAW ch 14 (Oregon CLE 1989 & Supp 1997).

CONTINUING TORT I.

(§19.1)

Trespass and Nuisance

An action for trespass or injury to another’s interest in real property must be commenced within six years. ORS 12.080(3). The statute of limitations runs from the date the trespass or interference originates. Davis v. Bostick, 282 Or 667, 580 P2d 544 (1978); Denora v. Fischer Eng., 55 Or App 448, 638 P2d 490 (1982).

II.

III.

(§19.2)

Negligence

A.

Failure of Duty. The statute of limitations will not bar an action for negligence when the plaintiff alleges that the defendant’s failure to maintain property caused injury to the plaintiff, even though the negligence began more than two years before the complaint was filed.

Holdner v. Columbia County, 51 Or App 605, 627 P2d 4 (1981).

B.

Medical Malpractice. The continued treatment of a plaintiff for an eye disease from 1932 to 1939 based on a mistaken diagnosis constituted a continuing tort. The statute of limitations started to run only when the treatment ceased. Shives v. Chamberlain, 168 Or 676, 126 P2d 28 (1942).

C.

Dental Malpractice. The continued treatment for more than a year by a dentist after partial removal of a wisdom tooth, failure to discover an infection, and failure to take X-rays was a continuing tort. The cause of action accrued and the statute of limitations started to run from the date of the last treatment. Hotelling v. Walther, 169 Or 559, 130 P2d 944 (1942).

D.

Statute of Ultimate Repose. Any medical or dental malpractice claim brought on a continuing tort theory is subject to the five-year period of ultimate repose set forth in ORS 12.110(4). Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 455-456, 918 P2d 453 (1996), rev den, 329 Or 287 (1999).

(§19.3)

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress can be similar to a continuing tort, with the limitations period tolled until actual injury is incurred, as long as the incidents giving rise to the claim are not separately actionable. Barrington v.

Sandberg, 164 Or App 292, 297-298, 991 P2d 1071 (1999). But see Simpson v.

Burrows, 90 F Supp 2d 1108 (D Or 2000); Davis v. Bostick, 282 Or 667, 672, 580 P2d 544 (1978) (continuing tort doctrine does not apply to intentional 42

CONTRACTS / §20.2

infliction of emotional distress claims when separate tortious acts give rise to separate, compensable claims).

CONTRACTS I.

II.

(§20.1)

General Rule

A.

“Actions shall be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.” ORS 12.010. “(1) An action upon a contract or liability, express or implied, excepting those mentioned in ORS 12.070, 12.110 and 12.135 and except as otherwise provided in ORS 72.7250 . . . shall be commenced within six years.”

ORS 12.080.

B.

ORS 12.080 applies not only to actions on contracts, but also to actions on implied-in-law or quasi-contracts, including indemnity actions (even though the indemnity action arises out of an underlying claim for negligence). Owings v. Rosé, 262 Or 247, 262-263, 497 P2d 1183 (1972). (Note that actions for contribution covered by ORS 18.450 must be commenced within two years.)

(§20.2) A.

Accrual of Action on a Contract

General Rule. An action on a contract accrues when there is a complete cause of action–when an action on the contract may be maintained.

Zurcher v. Booth, 80 Or 335, 338, 157 P 147 (1916). In Tharp v.

Jackson, 85 Or 78, 82-83, 165 P 585 (1917), the defendant agreed to pay the plaintiff stenographer $50 per month for her services, but payment was not due until five years after she began providing the services. The plaintiff commenced an action alleging nonpayment more than six years after she began providing services, but less than six years after payment was due. The court held that the action was not barred. Although the right to payment had been earned more than six years before the action was commenced, payment for the services had not been due for more than six years.

•

A new or continuing contract may restart the running of the statute of limitations, but no acknowledgment or promise is sufficient evidence of the new or continuing contract unless it is contained in a writing signed by the party to be charged. ORS 12.230; Green v. Coos Bay Wagon Road Co., 23 F 67, 70 (CC Or 1885) (Deady, J.) (acknowledgment does not take case out of operation of statute prospectively; statute commences to run again simultaneously with new promise, and in six years thereafter bars remedy thereon);

43

CONTRACTS / §20.2

Buell v. Deschutes Co. Mun. Imp. Dist., 208 Or 56, 298 P2d 1000 (1956) (refers to acknowledgment as tolling statute of limitations).

•

B.

Accrual of Action on an Account. In an action to recover a balance due on an account, the cause of action is deemed to have accrued from the time of the last charge or payment proved in the account. (Interest, financing charges, and carrying charges are not deemed to be such a charge.) ORS 12.090. ORS 12.240, a tolling statute, has a similar effect.

See discussion below. See also ACCOUNT STATED.

C.

Application of Discovery Rule to Contract Actions. It is not clear whether the discovery rule applies to contract actions. In Berry v.

Branner, 245 Or 307, 311-313, 421 P2d 996 (1966), the medical malpractice action in which the Oregon Supreme Court first adopted the discovery rule, the court indicated that the discovery rule arises out of the interpretation of the word accrued found in ORS 12.010. As such, it would seem that the discovery rule would apply to all statutes of limitations in ORS chapter 12, including contract and other tort actions.

Nevertheless, Oregon courts have not applied the discovery rule across the board.

•

44

Oregon cases are in conflict concerning whether damages are an essential element of a breach of contract claim, thereby possibly essential to triggering the statute of limitations. Compare Moini v.

Hewes, 93 Or App 598, 602-603, 763 P2d 414 (1988) (damages are essential element of breach of contract claim) with Hollin v. Libby, McNeil & Libby, 253 Or 8, 13, 452 P2d 555 (1969) (a party is liable in contract as soon as party breaks any promise made). The weight of Oregon authority, however, holds that a party may maintain a breach of contract action without evidence of actual damages. See Western Feed Co. v. Heidloff, 230 Or 324, 334, 370 P2d 612 (1962) (proof of actual damages was not necessary to survive directed verdict motion; jury could find nominal damages from evidence of breach); Smith v.

Abel, 211 Or 571, 589, 316 P2d 793 (1957); Schafer v. Fraser, 206 Or 446, 486-487, 290 P2d 190 (1955) (actual damages are not element of contract cause of action because nominal damages can be recovered).

In tort actions, the Oregon Court of Appeals applied the discovery rule to a libel action involving confidential documents. White v.

Gurnsey, 48 Or App 931, 936-937, 618 P2d 975 (1980). In Workman v. Rajneesh Foundation International, 84 Or App 226, 230-232, 733 P2d 908 (1987), however, the court refused to apply the discovery rule to a defamation claim because the rationale for the discovery rule

CONTRACTS / §20.3

(injuries that elude immediate detection) did not apply to defamations expressed in open or public forums.

•

No Oregon court has ruled on whether the discovery rule applies to contract actions. See FDIC v. Smith, 328 Or 420, 431, 980 P2d 141 (1999) (declining to decide whether discovery rule, in context of adverse domination claim, applies to contract actions). Based on White and Workman, supra, the court may answer the question on policy grounds by determining whether the breach of contract eluded immediate detection.

For statutes of limitations found outside ORS chapter 12, the court may look to whether the legislature intended the discovery rule to apply. See e.g., Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001) (discovery rule does not apply to product liability actions under ORS 30.905); Moore v. Mutual of Enumclaw Ins. Co., 317 Or 235, 247-248, 855 P2d 626 (1993) (discovery rule does not apply to ORS 742.240).

•

III.

(§20.3)

For a further discussion of the discovery rule, see DEFAMATION; LEGAL MALPRACTICE; MEDICAL AND DENTAL MALPRACTICE; WRONGFUL DEATH. Exceptions to Six-Year Limitation

The six-year statute of limitations prescribed in ORS 12.080(1), by its own terms, does not apply to all actions relating to a contract.

A.

Liabilities Arising Out of Contracts When Party Owes Independent Standard of Care. ORS 12.080(1) does not apply to every liability just because the relationship between the parties arises out of a contract. If a contract, most often a professional or other independent services contract, “incorporates by reference or by implication a general standard of skill and care to which the defendant would be bound independent[ly] of the contract, and the alleged breach would also be a breach of this noncontractual duty, then [the two-year limitation provided in] ORS 12.110 applies.” Securities-Intermountain v. Sunset Fuel, 289 Or 243, 259, 611 P2d 1158 (1980). Certain insurer-insured relationships arise out of contracts but carry with them standards of care that exist independently of those contracts and without reference to the specific terms thereof. Georgetown Realty v. The Home Ins. Co., 313 Or 97, 106, 110-111, 831 P2d 7 (1992). If, on the other hand, the parties have spelled out the performance expected by the plaintiff and promised by the defendant in terms that commit the defendant to this performance without reference to and irrespective of any general standard, then the

45

CONTRACTS / §20.3

six-year limitation provided in ORS 12.080 applies. SecuritiesIntermountain, supra, 289 Or at 259-260.

B.

Statute of Ultimate Repose for Actions in Contract Arising from the Construction, Alteration, or Repair of any Improvement to Real Property; Surveyors. Actions against a person, whether in contract or tort, arising from that person’s having performed the construction, alteration, or repair of any improvement to real property are, in addition, subject to a 10-year statute of ultimate repose dating from substantial completion or abandonment of the construction, alteration, or repair.

ORS 12.135(1). For a further discussion of statutes of ultimate repose, see REAL PROPERTY; TORT OR CONTRACT. •

C.

46

Notwithstanding any other statute of limitations, actions against surveyors for injury or damage arising out of a survey of real property must be commenced within two years after the date the injury or damage is first discovered or in the exercise of reasonable care should have been discovered. In addition, the action is subject to a 10-year statute of ultimate repose dating from the date the surveyor’s map is filed or, if no map is filed, from the date of completion of work on the survey. ORS 12.280. See REAL PROPERTY.

Contractual Limitation Periods; Actions on Fire Insurance Policies; Sales of Goods. “The parties to a contract may stipulate that an action for a breach [of the contract] must be brought within a certain period, and, if such limitation is reasonable, it will be upheld.” Ausplund v. Aetna Indemnity Co., 47 Or 10, 22, 81 P 577 (1905); Biomass One, L.P. v. S-P Construction, 103 Or App 521, 524-526, 799 P2d 152 (1990) (action for breach of construction contract governed by one-year limitation period specified in contract).

•

A statutory example of a contractual limitation is ORS 742.240, which provides that fire insurance policies must contain a provision that actions must be “commenced within 24 months next after inception of the loss.” This statute is not deemed to be a statute of limitations, but is instead deemed to create a contractual limitation.

Ben Rybke Co. v. Royal Globe Insurance Co., 293 Or 513, 517-518, 651 P2d 138 (1982). For further discussion, see 2 INSURANCE §20.63 (Oregon CLE 1996 & Supp. 1999).

•

The parties to a contract for sale of goods may, by their original agreement, reduce the period of limitation to not less than one year, but they may not extend it. ORS 72.7250(1).

CONTRACTS / §20.3

D.

Sealed Instruments Entered into Before August 13, 1965. Although it is hard to believe there are many of these instruments left, an action on a sealed instrument entered into before August 13, 1965, must be commenced within 10 years rather than six years. ORS 12.070.

E.

Contracts for Sales of Goods. Actions provided for in ORS 72.7250 are excepted from ORS 12.080. Actions for breach of a contract for sale of goods must be commenced within four years after the cause of action accrued. ORS 72.7250(1). A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. ORS 72.7250(2).

•

A breach of warranty, and thus the accrual of the cause of action, ordinarily occurs when the tender of delivery (ORS 72.5030) is made.

ORS 72.7250(2). When, however, the warranty explicitly extends to future performance of the goods, and discovery of the breach must await the time of such performance, then the cause of action accrues when the breach is or should have been discovered. ORS 72.7250(2).

•

The four-year statute provided in ORS 72.7250 applies to actions on an account or an account stated that arise out of an underlying sale of goods. Moorman Manufacturing Co. v. Hall, 113 Or App 30, 830 P2d 606 (1992). ORS 72.7250 does not alter the law on tolling of the statute of limitations (ORS 72.7250(4)), but following from the Moorman opinion, it alters the law on accrual of causes of actions on accounts (ORS 72.7250(2)). This means that ORS 12.240, which has the effect of tolling the running of the statute of limitations until the time of the last payment, applies to actions on an account that arise out of an underlying sale of goods; but that ORS 12.090, which provides that a cause of action on an account does not accrue until the last payment proved in the account, does not apply. ORS 12.240 is described as a tolling provision, and it has been applied to an action on an account arising out of an underlying sale of goods. Northwest Fndry. v. Willamette Mfg., 268 Or 343, 356, 521 P2d 545 (1974). In contrast, ORS 12.090, by its terms an accrual provision, appears to be displaced (ORS 71.1030) by ORS 72.7250(2).

F.

Actions Arising Under a Rental Agreement. An action arising under a rental agreement or ORS chapter 90 must be commenced within one year. ORS 12.125.

G.

Actions for Overtime or Premium Pay Under an Employment Agreement. An action for overtime or premium pay, or for penalties or liquidated damages for failure to pay overtime or premium pay, must be commenced within two years. ORS 12.110(3). See generally Massey v.

Ore.-Wash. Plywood Co., 223 Or 139, 143-144, 353 P2d 1039 (1960) 47

CONVERSION / §22.2

(vacation pay is not premium pay and therefore former ORS 12.120(3) [now ORS 12.110(3)] did not bar action).

H.

IV.

Actions (Suits) for Reformation. An action (suit) for reformation is deemed to be a “cause not otherwise provided for,” and therefore the 10year period provided in ORS 12.140 is used to determine laches. The sixyear statute provided in ORS 12.080(1) does not apply. Woodriff v.

Ashcraft, 263 Or 547, 553, 503 P2d 472 (1972).

(§20.4)

References

See generally CONTRACT LAW IN OREGON (Oregon CLE 1991 & Supp 1999).

CONTRIBUTION I.

(§21.1)

If two or more tortfeasors are responsible for the same injury or wrongful death, contribution may be enforced by a separate action commenced two years after judgment has become final by lapse of time for appeal or after appellate review. ORS 18.450(3).

II.

(§21.2)

If there is no judgment against a tortfeasor, that tortfeasor cannot seek contribution unless the tortfeasor has:

III.

(§21.3)

•

Discharged the common liability by payment made within the statute of limitations period for the tort; and

•

Commenced the contribution action within two years after payment; or

•

Agreed to discharge the common liability while the tort action was pending; and

•

Paid the liability and commenced the contribution action within two years after the agreement. ORS 18.450(4)(a)-(b).

See INDEMNITY. See generally 1 TORTS ch 16 (Oregon CLE 1992 & Supp 2000).

CONVERSION

I.

(§22.1)

An action for conversion must be filed within six years after injury.

ORS 12.080(4). See also, Everman v. Lockwood, 144 Or App 28, 925 P2d 128 (1996); but see Stull v. Hoke, 141 Or App 150, 917 P2d 69 (1996), aff’d in part, rev’d in part, 326 Or 72 (1997).

II.

(§22.2)

Injury occurs at the time of the conversion. Sheppard v. Yokum and DeLashmutt, 10 Or 402, 3 P 824 (1882).

48

CORPORATIONS – COOPERATIVE / §23.4

III.

(§22.3)

See generally 2 DAMAGES ch 20 (Oregon CLE 1998 & Supp 2002); 1 TORTS ch 7 (Oregon CLE 1992 & Supp 2000).

CORPORATIONS – COOPERATIVE

I.

II.

III.

(§23.1)

Documents

A.

A document filed with the Secretary of State is effective on the date it is filed and at the time specified in the document or on any date specified in the document, but no effective date can be delayed more than 90 days after filing. If a date is specified but a time is not, the document is effective at 12:01 A.M. on the date specified. ORS 62.035(1)-(2).

B.

If the Secretary of State refuses to file a document, the document must be returned to the cooperative within 10 business days after delivery. ORS 62.050(3).

(§23.2)

Meetings

A.

A record date for determination of shareholders entitled to receive notice of meetings, to vote at meetings, or to receive payment of any dividends may be fixed by the bylaws not more than 50 days and not less than 10 days before the action requiring determination. If no record date is fixed by the bylaws, the date that the meeting notice is mailed or the date of the resolution declaring the dividend will be the record date. ORS 62.195(3).

B.

Notice of a special meeting must be given not less than seven or more than 30 days before the meeting. ORS 62.255(4).

C.

For the following actions, notice must be given not less than seven or more than 30 days before the action: •

Amendment of articles, ORS 62.555(2)(b);

•

Shareholder voting on amendments, ORS 62.560(2); and

•

Voluntary dissolution, ORS 62.655(2).

(§23.3)

Court Proceedings

If an action is instituted by a member or shareholder in the name of the cooperative, the plaintiff must file the complaint within 20 days after notice was given to the cooperative board. ORS 62.335(1)(c).

IV.

(§23.4) A.

Annual Reports

Information in the annual report must be current as of 30 days before the anniversary of the cooperative. ORS 62.455(2).

49

CORPORATIONS – NONPROFIT / §24.3

B.

V.

If necessary information is missing, the errors must be corrected within 45 days after notice of the errors given by the Secretary of State.

ORS 62.455(4).

(§23.5)

Amendment of Articles

Notice of a proposed amendment must be given not less than seven or more than 30 days before the meeting. ORS 62.555(2)(b), 62.255(4).

VI.

VII.

(§23.6)

Unclaimed Distributions

A.

A distribution that remains unclaimed for four years after the date authorizing payment may be forfeited by the board. ORS 62.425(1).

B.

Any amounts forfeited may revert to the cooperative if six months’ notice is given to the creditor. ORS 62.425(1).

C.

All intangible personal property that is unclaimed within two years after the date of final distribution after dissolution is presumed to be abandoned. ORS 62.720.

(§23.7)

References

See generally 2 ADVISING OREGON BUSINESSES ch 32 (Oregon CLE 2001).

CORPORATIONS – NONPROFIT I.

(§24.1)

Generally

See the Oregon Nonprofit Corporation Act, ORS chapter 65.

II.

III.

(§24.2)

Documents

A.

A document filed with the Secretary of State is effective on the date it is filed or at any time specified in the document, but no effective date can be delayed more than 90 days after filing. ORS 65.011(1)-(2).

B.

If the Secretary of State refuses to file a document, the document must be returned to the corporation within 10 business days after delivery. ORS 65.017(3).

(§24.3)

Notices

Notice may be oral or written unless otherwise specified. Written notice is effective at the earliest of the following:

50

•

When mailed (post paid and correctly addressed);

•

When received;

•

Five days after its postmark;

•

On the date shown on the return receipt; or

•

Thirty days after deposit in the United States mail.

CORPORATIONS – NONPROFIT / §24.8

•

IV.

The date specified in the articles or bylaws with respect to notice to directors. ORS 65.034(3), (5)

(§24.4)

Resignation of Registered Agent

The appointment of a registered agent is terminated on the 31st day after filing a statement of resignation with the Secretary of State. ORS 65.117(3).

V.

(§24.5)

Members and Memberships

Expulsion of a member of a public benefit or mutual benefit corporation requires a procedure that is fair and reasonable. A procedure that includes at least 15 days’ prior written notice, with an opportunity for the member to be heard orally or in writing at least five days before the effective date, is fair and reasonable. ORS 65.167(2).

VI.

VII.

(§24.6)

Meetings of Members

A.

If notice of a special meeting called by demand of the members is not given within 30 days after the date of the written demand, the person signing the demand for a special meeting may set the time and place of the meeting. ORS 65.204.

B.

Notice of annual, regular, and special meetings is fair and reasonable if the corporation gives notice at least seven days before the meeting. If notice is mailed by other than first-class or registered mail, it must be given at least 30 days but not more than 60 days before the meeting.

ORS 65.214(3)(a).

C.

Proxies. A proxy appointment is valid for 11 months unless a different period is expressly provided in the appointment form. ORS 65.231.

D.

Voting agreements are valid for a period of up to 10 years. ORS 65.254.

(§24.7)

Directors

In the absence of any term in the bylaws or articles, the term of each director is one year. Except for designated or appointed directors, the term of directors may not exceed five years. ORS 65.314.

VIII. (§24.8)

Mergers and Sales

A.

Notice of a plan of merger of a public benefit or religious corporation must be delivered to the Attorney General at least 20 days before consummation of any merger. ORS 65.484(2).

B.

Public benefit or religious corporations must give 20 days’ written notice to the Attorney General before the sale, lease, exchange, or disposition of all or substantially all corporate property, unless the transaction is in the usual course of business. ORS 65.534(7).

51

CORPORATIONS – NONPROFIT / §24.11

IX.

X.

XI.

52

(§24.9)

Dissolution

A.

A public benefit or religious corporation must give the Attorney General at least 20 days’ notice before any assets are transferred as part of the dissolution process. ORS 65.627(2).

B.

If the corporation is given notice that grounds exist for dissolving it and the grounds for dissolution are not corrected within 45 days, the corporation will be dissolved. ORS 65.651(2).

(§24.10) Claims Against Dissolved Corporations A.

A corporation must give notice in writing to known claimants that a claim must be filed by an effective date that is no fewer than 120 days from the date of the notice. ORS 65.641(1).

B.

A rejected claim must be enforced by commencing a proceeding against the corporation within 90 days from the effective date of the rejection notice. ORS 65.641(2)(b).

C.

Unknown claimants may receive notice of dissolution by publication. A claim against the corporation based on a published notice will be barred unless the claim is enforced within five years. ORS 65.644(2).

D.

The following claimants must commence a proceeding to enforce a claim within five years after the date of publication of notice: •

Claimants who did not receive written notice;

•

Claimants with claims that were not timely acted on; and

•

Claimants holding contingent claims. ORS 65.644(3).

(§24.11) Records and Reports A.

A corporation must maintain permanent records of all meetings and actions without meetings. A corporation must keep a copy for inspection of minutes of all meetings for the past three years, written communications required by ORS chapter 65 and those regarding general membership matters made to members within the past three years, the last three financial statements, and the last three accountant’s reports if annual financial statements are reported. ORS 65.771(1), (5)(d)-(e), (g)-(h).

B.

A member can inspect records by giving five business days’ written notice. ORS 65.774.

C.

Information contained in the annual report must be current as of 30 days before the anniversary of the corporation. ORS 65.787(2).

CORPORATIONS – PRIVATE / §25.2

CORPORATIONS – PRIVATE Note: The “Oregon Business Corporation Act” applies to all domestic corporations in existence on June 15, 1987. ORS 60.951, 60.957.

I.

II.

(§25.1)

Documents

A.

Delivery of a document to the Secretary of State is accomplished only when the document is actually received by the office. ORS 60.004(10).

B.

A document is effective at 12:01 A.M. on the date it is filed by the Secretary of State or at any time on the date filed as specified in the document. ORS 60.011(1).

•

A document is effective on a delayed date and time if specified or at 12:01 A.M. on the delayed date if no time is specified.

ORS 60.011(2).

•

A delayed effective date may not be later than 90 days after the date the document is filed. ORS 60.011(2).

C.

Articles of correction are effective on the effective date of the document they correct. If persons are adversely affected by the correction, the correction is effective when filed. ORS 60.014(3).

D.

If the Secretary of State refuses to file any corporate document, the document must be returned to the domestic or foreign corporation or its representative within 10 business days after the document was delivered.

ORS 60.017(3).

(§25.2) A.

B.

Notices

Any notices required under ORS chapter 60 must be in writing, unless oral notice is specifically permitted by the articles of incorporation or bylaws. All notices required by ORS chapter 60 by a corporation to its shareholders must be in writing. Notice is effective at the earliest of the following: •

When mailed (post paid and correctly addressed);

•

When received;

•

Five days after date of postmark; or

•

On the date shown on the return receipt if sent by registered or certified mail. ORS 60.034(1), (3), (5).

Written notice is effective when mailed if mailed postpaid and correctly addressed to a shareholder or director. ORS 60.034(3).

•

Oral notice is effective when communicated. ORS 60.034(6).

53

CORPORATIONS – PRIVATE / §25.7

III.

IV.

V.

VI.

(§25.3)

Incorporation

A.

Corporate existence begins when the articles are filed by the Secretary of State, unless a delayed effective date is specified. ORS 60.051(1).

B.

The directors, or incorporators if no directors have been named, must hold an organizational meeting after incorporation. ORS 60.057.

(§25.4)

Registered Agent

A.

A change in the name or address of the registered agent or registered office is effective on the date of filing. ORS 60.114(3).

B.

A registered agent may resign by delivering a signed statement to the Secretary of State and giving a copy of the statement to the corporation.

The agency and registered office are terminated on the 31st day after filing unless a successor agent is appointed. ORS 60.117(3).

(§25.5)

Subscription for Shares

A.

Subscriptions for shares before incorporation are irrevocable for six months unless the subscription agreement provides for a longer or shorter period or all subscribers agree to revocation. ORS 60.144(1).

B.

A subscription agreement may be rescinded by the corporation if the subscriber’s debt remains unpaid more than 20 days after written demand for payment. ORS 60.144(4).

(§25.6)

Shareholders’ Preemptive Rights

Shares subject to preemptive rights that are not acquired by shareholders may be issued to any person for one year after being offered to shareholders. An offer at a consideration lower than offered to shareholders or made after one year is subject to the shareholders’ preemptive rights. ORS 60.174(3)(f).

VII.

54

(§25.7)

Shareholders’ Meetings

A.

Notice of each annual and special shareholders’ meeting must be given by the corporation not more than 60 days or less than 10 days before the meeting date. ORS 60.214(1).

B.

A determination of shareholders entitled to receive notice of a meeting or action for the purpose of voting must be made as of a record date, and the record date may not be fixed more than 70 days before the meeting or action. ORS 60.221(1)-(2).

C.

If a shareholders’ meeting is adjourned for more than 120 days, a new record date must be fixed to determine which shareholders are entitled to notice. ORS 60.221(3).

D.

Proxies. A proxy appointment is valid for 11 months unless a longer period is expressly provided. ORS 60.231(4).

CORPORATIONS – PRIVATE / §25.11

E.

Court-Ordered Meetings. A shareholder may demand a special meeting and, if no notice of a special meeting is given within 30 days after the demand is delivered, a shareholder may apply to the county circuit court for issuance of an order fixing the details of a special meeting.

ORS 60.207(1)(b).

The shareholders’ application to the court for a special meeting will be set for hearing. The court must give the corporation five days’ notice of the hearing. ORS 60.207(3).

•

F.

Actions Without a Meeting.

If action is taken pursuant to ORS 60.211(1)(b) by fewer than all of the shareholders entitled to vote on the action, the shareholders who were entitled to vote on the action but who did not consent in writing to the action must be promptly notified of the action.

VIII. (§25.8)

Voting Trusts

A voting trust is valid for not more than 10 years after its effective date, unless extended for additional terms of not more than 10 years each with the voting trustee’s written consent. An extension is valid for 10 years from the date that the first shareholder signs the extension agreement. ORS 60.254(2)-(3).

IX.

(§25.9)

Directors’ Meetings

Special meetings of the board must be preceded by at least two days’ notice, unless the articles or bylaws provide for a different time. ORS 60.344.

X.

(§25.10) Amendment of Articles of Incorporation Articles may be amended before shares are issued by giving notice of the amendment with a statement that subscribers of stock may rescind the subscription by giving notice in writing to the board or incorporators within 30 days of delivery or mailing of the notice of amendment. If notice of rescission is not delivered or mailed within 30 days, the subscriber may not avoid the subscription agreement or assert a claim against any person based on the amendment. ORS 60.444.

XI.

(§25.11) Merger and Share Exchange A.

If a plan of merger or share exchange is adopted, the board must give notice to each shareholder of a proposed shareholders’ meeting not more than 60 days or fewer than 10 days before the meeting date.

ORS 60.487(4).

B.

A parent corporation owning at least 90% of shares of a subsidiary may merge without approval of shareholders but may not deliver the articles of merger to the Secretary of State until 30 days after mailing a copy of the plan of merger to each shareholder. ORS 60.491.

55

CORPORATIONS – PRIVATE / §25.13

XII.

(§25.12) Dissenters’ Rights to Obtain Payment of Shares A.

If dissenters’ rights are created at a shareholders’ meeting, the corporation must send a dissenters’ notice no later than 10 days after the action was taken. ORS 60.567.

B.

The date set for receipt of the dissenters’ payment demand must be not fewer than 30 days and not more than 60 days after the dissenters’ notice is sent. ORS 60.567(2)(d).

C.

If the corporation does not take action within 60 days after the date set for demanding the proposed payment, the corporation must return the deposited certificates and release the transfer restrictions. ORS 60.581.

D.

A dissenter may notify the corporation and demand payment of the estimated fair market value of shares if the corporation fails to make payment or return certificates within 60 days after demand. ORS 60.587(1)(b)-(c).

E.

A dissenter who is dissatisfied with the corporation’s payment or offer must notify the corporation of its demand within 30 days after the corporation’s offer or payment for the dissenter’s shares, or the dissenter’s right to demand payment is waived. ORS 60.587(2).

F.

If a dissenter’s demand for payment remains unsettled, the corporation may petition the court within 60 days after receipt of the demand to determine the fair market value of the shares, plus accrued interest. If no such proceedings are commenced, the corporation must pay the amount demanded. ORS 60.591(1).

XIII. (§25.13) Voluntary Dissolution

56

A.

A corporation may revoke its voluntary dissolution within 120 days after the effective date of the dissolution. ORS 60.634(1).

B.

A dissolved corporation may dispose of known claims by giving written notice stating a deadline date at least 120 days from the effective date of the notice. ORS 60.641(2)(c).

C.

A claim against the dissolved corporation is barred if not delivered to the dissolved corporation by the deadline date. If a claim is rejected and the claimant does not commence a proceeding to enforce the claim within 90 days of the rejection notice, the claim is barred. ORS 60.641(3).

D.

A corporation may publish notice to persons with claims, stating that claims will be barred unless enforced within five years after publication of the notice. ORS 60.444(1)-(2).

CORPORATIONS – PRIVATE / §25.17

XIV. (§25.14) Administrative Dissolution

XV.

A.

After the Secretary of State gives the corporation written notice of the determination that grounds exist for dissolving the corporation, the corporation has 45 days to correct the grounds for dissolution or it will be dissolved. ORS 60.651(1)-(2).

B.

The corporation may appeal denial of reinstatement pursuant to ORS 183.310-183.550. ORS 60.657.

(§25.15) Disposition of Assets After Dissolution Assets that should be distributed to a creditor, shareholder, or claimant but cannot be distributed because the parties cannot be found must be reduced to cash and deposited with the Division of State Lands within one year after the final distribution is payable. ORS 60.674.

XVI. (§25.16) Foreign Corporations A.

A foreign corporation must deliver an application to transact business with information current to within 60 days of delivery. ORS 60.707(2).

B.

Resignation of the registered agent terminates the agency and registered office on the 31st day after the signed resignation is filed with the Secretary of State and a copy is given to the foreign corporation.

ORS 60.727(1), (3).

C.

A foreign corporation may withdraw from transacting business in Oregon by filing an application that includes a commitment to notify the Secretary of State for a period of five years of any change in its mailing address. ORS 60.734(1)(e).

D.

A foreign corporation may transact business for 45 days from the date of notice of revocation of authority to transact business if the corporation does not correct each ground for revocation within that time.

ORS 60.741(1)B(2).

XVII. (§25.17) Corporate Records A.

Among other documents, a corporation must keep for three years a copy of all written communications to shareholders, minutes of shareholders’ meetings, and records of actions taken without a meeting.

ORS 60.771(5)(d)-(e).

B.

A shareholder is entitled to inspect corporate records by giving at least five business days’ notice. ORS 60.774(1)-(2).

C.

Any court order allowing inspection of records must give the corporation five days’ notice of the hearing date. ORS 60.781(5).

57

COUNTERCLAIMS, RECOUPMENT, AND SETOFF / §27.1

XVIII. (§25.18)

Annual Report

A.

An annual report must contain information that is current as of 30 days before the anniversary of the corporation. ORS 60.787(2).

B.

Any errors must be corrected within 45 days of notice from the Secretary of State. ORS 60.787(4).

XIX. (§25.19) References See generally 2 ADVISING OREGON BUSINESSES chs 22, 27, & 30 (Oregon CLE 2001).

COSTS AND DISBURSEMENTS I.

II.

(§26.1)

Trial Court

A.

A verified cost bill must be filed and served on all appearing parties not later than 14 days after entry of judgment. ORCP 68 C(4)(a).

B.

Objections must be served and filed within 14 days of service of the cost bill on the party making the objection. ORCP 68 C(4)(b).

(§26.2)

Appellate Court

A.

A verified statement of costs and disbursements and a petition for attorney fees must be filed and served 21 days after the date of the decision. Filing a petition for review or a petition for reconsideration does not suspend the time for filing a statement of costs and disbursements. ORS 20.320; ORAP 13.05(5).

B.

Objections must be filed and served within 14 days after service of the statement. ORS 20.320; ORAP 13.05(5)(c). A reply must be filed within 14 days after the date of filing the objection. ORAP 13.05(5)(c).

C.

These times are not extended by a pending petition for rehearing. Empire Holding Corp. v. Coshow, 150 Or 252, 41 P2d 426 (1935).

D.

The 21-day rule in the court of appeals may be extended if the underlying statute being sued on allows “or such further time as may be allowed by the court.” ORS 20.320; State v. Vanderburg, 98 Or App 428, 781 P2d 1216 (1989).

COUNTERCLAIMS, RECOUPMENT, AND SETOFF

I.

(§27.1)

Counterclaims

A counterclaim that is based on a cause of action that was not barred at the time the action was commenced by the plaintiff is not barred if the statute of limitations expires before the counterclaim is filed. Lewis v. Merrill, 228 Or 541, 365 P2d 1052 (1961).

58

DEATH OR DISABILITY / §28.2

II.

III.

(§27.2)

Recoupment

A.

Recoupment relates back to the original complaint because it is the “cutting back” of the plaintiff’s claim. Rogue River Management Co. v.

Shaw, 243 Or 54, 411 P2d 440 (1966).

B.

Even though the statute of limitations may have run to prevent an original action, an affirmative claim for recoupment is not barred. Lamb v. Young, 250 Or 228, 441 P2d 616 (1968); Dixon v. Schoonover, 226 Or 443, 359 P2d 115 (1961); Wright v. Hage, 214 Or 400, 330 P2d 342 (1958).

(§27.3)

Setoff

A.

Setoff is a money demand against a plaintiff arising on a contract constituting a debt independent of and unconnected to the plaintiff’s cause of action. Rogue River Management Co. v. Shaw, 243 Or 54, 411 P2d 440 (1966).

B.

A setoff claim does not relate back to the date of the complaint but must stand on its own. It is barred if filed after the statute of limitations on the setoff claim has run as of the date of filing. Jewell v. Compton, 277 Or 93, 559 P2d 874 (1977); Lamb v. Young, 250 Or 228, 441 P2d 616 (1968).

DEATH OR DISABILITY

I.

II.

(§28.1)

Death of a Party

A.

If a party dies, the action may be continued by the decedent’s personal representative or successor in interest on a motion made any time within one year after the decedent’s death. ORCP 34 B(1).

B.

If a party dies, the action may be continued against the decedent’s personal representative or successor in interest on a motion made any time within four months after the date of the first publication of notice to interested persons, but not more than one year after the decedent’s death.

ORCP 34 B(2).

C.

See WRONGFUL DEATH.

(§28.2)

Disability of a Party

A.

If a party is disabled, an action may be continued by or against the disabled party’s guardian, conservator, or successor in interest on a motion made within one year after the disability. ORCP 34 C.

B.

If a person is less than 18 years old or insane at the time a cause of action mentioned in ORS 12.010 - 12.050, 12.070 - 12.250, or 12.276 accrues, the time of the disability will not be a part of the time limited for the 59

DEATH OR DISABILITY / §28.2

commencement of the action. However, the statute of limitations will not be extended more than five years by a disability or, in any case, more than one year after the disability ceases. ORS 12.160.

•

CAVEAT: This tolling provision does not affect the five-year statute of ultimate repose set forth in ORS 12.110(4).

•

EXAMPLE 1: If a minor is close to the age of majority when the accident occurs, and will become of age more than two years after the accident, when does the time limitation run? injured minor’s date of birth date of accident injured minors turns 18 time limitation on claim

8/1/1983 7/15/1999 8/1/2001 8/1/2002

Explanation: ORS 12.160 states that the period within which the action must be brought cannot be extended more than five years by any disability, nor can it be extended in any case longer than one year after the disability ceases. Therefore, the time limit would run one year from the date that the injured person became age 18. Because the injured person's 18th birthday was on August 1, 2001, the time limit would run on 8/1/02. Without application of ORS 12.160, the time limitation on the claim would have expired on 7/15/01, two years from the date of the accident.

•

EXAMPLE 2: If a minor is very young when the accident occurs, what time limitation applies? injured minor’s date of birth date of accident injured minor turns 18 time limitation on claim

8/1/2002 8/15/2002 8/1/2020 8/15/2009

Explanation: The disability can be extended for a maximum of five years. The statute for the cause of action is then added to the five years.

In this example, the statute would be extended for five years because of the minority, and then an additional two years would be added for the tort time limitation. This seven-year extension would make the statute run on 8/15/2009. Shaw v. Zabel, 267 Or 557, 517 P2d 1187 (1974); Guiley v. Hammacker, 55 Or App 921, 640 P2d 664 (1982).

•

C.

60

CAVEAT: The PLF reminds attorneys that filing early avoids potential malpractice problems with locating and serving defendants.

To be sufficient to toll the statute of limitations, the insanity referred to in ORS 12.160 must be “a condition of mental derangement as actually to bar the sufferer from comprehending rights which he is otherwise

DEBTOR – CREDITOR / §29.3

bound to know.” Roberts v. Drew, 105 Or App 251, 254, 804 P2d 503 (1991). Whether that condition existed is usually a question of fact.

Roberts v. Drew, supra, 105 Or App at 255.

D. III.

To extend the statute of limitations due to a disability, the disability must have existed when the right of action accrued. ORS 12.170.

(§28.3)

Effect of Death on Unfiled Action

A.

If a person who is entitled to bring an action dies before the statute of limitations expires, the personal representative may commence the action after the expiration of that time and within one year after the death of the person. ORS 12.190(1). However, the limitation period set forth in ORS 30.075, rather than ORS 12.190(1), applies to personal injury actions in which the decedent has died before the action was commenced. ORS 12.190(1) applies to all other actions in which the decedent has died before the action was brought. Giuletti v. Oncology Associates of Oregon, P.C., 178 Or App 260, 36 P3d 510 (2001).

B.

If a person who would be a defendant in a case dies before the statute of limitations expires, the plaintiff may commence an action against the defendant’s personal representative after the statute of limitations expires but within one year after the defendant’s death. ORS 12.190(2).

DEBTOR – CREDITOR

I.

(§29.1)

The creditor has the right to realize on its security even though the statute of limitations has run on the debt or note. First Nat’l Bk. v.

Jack Mathis Gen. Cont., 274 Or 315, 546 P2d 754 (1976).

II.

(§29.2)

A promissory note not subject to the Uniform Commercial Code that is payable “on demand” is due immediately without an actual demand, and the statute of limitations commences to run against the note from the date of its execution and delivery and not from the date of demand. Angelini v. Delaney, 156 Or App 293, 966 P2d 223 (1998), rev den, 328 Or 594 (1999).

•

III.

(§29.3)

A promissory note not subject to the Uniform Commercial Code that is payable “on demand after date” becomes due and payable, without demand, on the day after its date, and the statute of limitations begins to run from that day. Culver v. Andres, 26 Or App 809, 554 P2d 541 (1976).

See SECURED TRANSACTIONS; UNIFORM COMMERCIAL CODE.

61

DECEDENTS’ ESTATES / §30.2

DECEDENTS’ ESTATES I.

(§30.1) A.

A person having custody of a will must deliver the will to a court having jurisdiction of the estate of the testator or to the personal representative within 30 days after learning that the testator is dead. ORS 112.810(1)(f).

B.

An attorney licensed to practice in Oregon having custody of a will may dispose of the will after 40 years have elapsed since the will was executed if the testator cannot be found, after diligent inquiry, and if the will is not subject to a contract to make or not revoke a will. ORS 112.815.

C.

II.

•

The will may be destroyed if a testator does not contact the attorney within 90 days of the date of published notice of the attorney’s intent to destroy the will. ORS 112.820(1)(b).

•

The attorney must file an affidavit in the county probate court within 30 days after the will is destroyed. ORS 112.820(1)(c).

An attorney who has custody of a will may destroy the will without notice if it has not been admitted to probate within 40 years after the testator’s death. ORS 112.820(2).

(§30.2) A.

Opening of the Estate

The court may appoint a special administrator before a personal representative is appointed when the decedent’s property is in danger of loss, injury, or deterioration, or to dispose of the decedent’s remains.

ORS 113.005(1).

•

The powers of the special administrator cease when a personal representative is appointed. ORS 113.005(5).

B.

An attesting witness may be brought before the court by a motion filed within 30 days after the order admitting the will to probate is issued.

ORS 113.055(2).

C.

A will contest must be commenced before the later of:

D.

62

Disposition of Wills

•

four months after the date of delivery or mailing of the information required by ORS 113.145 if the contestant is someone who is required to receive the ORS 113.145 mailing; or

•

four months after the first publication of notice to interested persons if the contestant was not required to be named in the probate petition as an interested person. ORS 113.075

On appointment, a personal representative must cause a notice to interested persons to be published. ORS 113.155.

DECEDENTS’ ESTATES / §30.3

E.

Within 30 days after appointment, a personal representative must file in the estate proceeding a proof by an affidavit of the delivery or mailing of the information to heirs and devisees as required by ORS 113.145. ORS 113.145(4).

F.

A personal representative must file an inventory of all property of the estate in the estate proceeding within 60 days of his or her appointment.

ORS 113.165.

G.

III.

•

The personal representative must include newly discovered property in a supplemental inventory filed within 30 days of possession or knowledge of the property, or include the property in the next accounting. ORS 113.175.

•

Property is appraised at its true cash value as of the date of death of the decedent. ORS 113.185(3).

The Uniform Disclaimer of Property Interest Act does not impose a specific time limit for making a disclaimer, but if a disclaimer is to be tax-qualified, the time limits of IRC §2518 still apply. ORS 105.629. See IRC §2518.

(§30.3)

Personal Representative

A.

The duties and powers of the personal representative commence when letters of the personal representative are issued, and relate back to acts of the personal representative occurring before appointment. ORS 114.255.

B.

If a personal representative dies, resigns, or is removed by the court after notice to interested persons has been published, but before four months have expired from the date of first publication, the successor personal representative must publish new notice to interested persons.

ORS 113.225(1).

C.

A personal representative must annually file a verified account of administration in the estate proceeding, within 30 days of the anniversary of the personal representative’s appointment, within 30 days after removal, resignation, or revocation of the personal representative’s letters, or when the estate is ready for final settlement and distribution.

ORS 116.083(1).

D.

The court will enter an order to discharge the personal representative after distribution has been made, as ordered in the final decree. Except as provided in ORS 115.004, the discharge is a release of the personal representative and is a bar to any action against the personal representative or surety of the personal representative. ORS 116.213.

63

DECEDENTS’ ESTATES / §30.5

•

E. IV.

V.

See ORS 116.033 and 116.213 (relating to discharge of personal representative).

(§30.4)

Administration

A.

After four months after the first publication of notice to interested persons, the estate will be summarily closed if provision for support of the decedent’s spouse and dependent children consumes the entire estate after payment of claims, taxes, and the expenses of administration.

ORS 114.085.

B.

The surviving spouse is considered to have elected to take under the will unless the spouse serves and files a statement of election against the will within 90 days after the date the will was admitted to probate or within 30 days after the date the inventory was filed, whichever is later.

ORS 114.145.

C.

Whenever notice must be give for a hearing or any matter seeking an order, each interested person or his or her attorney must receive notice in one of the following ways: •

Personally delivered at least five days before the hearing date;

•

Mailed at least 14 days before the hearing date; or

•

Published for three consecutive weeks, with the last publication at least 10 days before the hearing date. ORS 111.215.

D.

Objections to a hearing must be filed on or before the date set for the hearing. ORS 111.235.

E.

A motion to modify or set aside an order of the probate commissioner must be made within 30 days after the order was entered.

ORS 111.185(1).

F.

The personal representative may file an appeal in tax court to an inheritance tax determination within 90 days after service of the order by mail. ORS 118.171, 305.280(1).

(§30.5) A.

64

The court may allow an action to be brought against the personal representative for cause within one year after the order of discharge is entered. ORS 116.213.

Small Estates

Not less than 30 days after the decedent’s death, any one or more claiming successors or, if the decedent died testate, any person named as personal representative in his or her will, may file an affidavit with the clerk of the probate court in any county where there is venue for a proceeding seeking appointment of a personal representative. The

DECEDENTS’ ESTATES / §30.6

affidavit may be amended by a new affidavit filed within four months after filing the preceding affidavit. ORS 114.515(1), (3), (5).

VI.

B.

The affidavit must state that claims against the estate may be barred unless a claim is presented to the affiant within four months after the affidavit is filed. ORS 114.525(12)(a).

C.

To receive payment or delivery of the property, the affiant must deliver a certified copy of the affidavit on or after the 10th day following the filing of the affidavit to any person indebted to or holding property of the decedent. ORS 114.535(1).

D.

A claim may be presented to the affiant within four months after the affidavit was filed. A claim is considered to be allowed unless the affiant mails or delivers notice of disallowance to the claimant and the claimant’s attorney within 60 days after date of presentment of the claim.

ORS 114.540(1)-(2).

E.

A creditor whose claim is disallowed may file a petition with the probate court for summary determination within 30 days after the notice of disallowance was mailed or delivered. A creditor whose claim is listed as disputed in the affidavit may file a petition for summary determination within four months after filing the affidavit. ORS 114.540(3).

F.

Within 30 days after filing the affidavit, the affiant must record, mail, or deliver each instrument that the affidavit states will be recorded, mailed, or delivered. ORS 114.545(1)(b).

G.

The affiant or any claiming successor who has not been paid in full may file a petition for summary review of administration of the estate within two years after the death of the decedent. ORS 114.550.

H.

If a personal representative is not appointed within four months after the affidavit is filed, the decedent’s property will be transferred to the persons shown by the affidavit to be entitled to the property. Any other claims will be barred except as provided in ORS 114.540, 114.545, and 114.550. ORS 114.555.

(§30.6)

Claims Against Estates

A.

If the statute of limitations has not expired on a claim on the date of the decedent’s death, the time for filing an action will be extended for one year after the date of death. ORS 115.215, 12.190(2).

B.

A claim is deemed to be allowed unless the personal representative mails or delivers notice of disallowance to the claimant and the claimant’s attorney within 60 days of presentment. ORS 115.135(1).

•

A personal representative may rescind prior allowance of an unpaid claim not less than 30 days before the date of filing the final account 65

DECEDENTS’ ESTATES / §30.6

if the claim was allowed because of error, misinformation, or excusable neglect. ORS 15.135(3).

C.

D.

66

A claimant must file and serve a request for summary determination or file a separate action within 30 days after the personal representative has mailed or delivered the notice of disallowance. ORS 115.145(1).

•

If the claimant files a request for summary determination of the claim (and serves a copy on the personal representative), the personal representative has 30 days after the date of service to notify the claimant in writing that he or she must commence a separate action on the claim. ORS 115.155.

•

The claimant has 60 days after receipt of the notice in which to commence a separate action against the personal representative, or the claim will be barred. ORS 115.155.

To comply with Tulsa Professional Collection Services v. Pope, 485 US 478, 108 S Ct 1340, 99 L Ed2d 565 (1988), the claims procedure is modified by ORS 115.003.

•

A personal representative must take reasonably necessary actions to locate claimants during the first three months after his or her appointment. ORS 115.003(1), (5).

•

Potential claimants must be notified within 30 days after the search period expires. Notice is not necessary for “conjectural” claims or claims already paid. ORS 115.003(2).

•

The personal representative must file an affidavit of compliance within 60 days after the three-month search period expires.

ORS 115.003(4).

E.

An action against a personal representative for failure to give notice or to conduct an adequate search for potential claimants must be commenced within two years after the decedent’s death or within the statute of limitations applicable to the claim, whichever is earlier. ORS 115.004(5).

F.

Claims against the estate, other than claims of the personal representative as a creditor of the decedent, are barred if not presented before the later of four months after the date of first publication of notice to interested persons or 30 days after a notice is mailed or delivered pursuant to ORS 115.003(3). ORS 115.005(1)-(2). Claims barred as untimely may be paid from any residue left after paying priority expenses or after paying earlier-presented claims of other persons. ORS 115.005(3).

G.

Except for state claims for recovery of public assistance described in ORS 115.005(6), claims not presented within two years after the death of

DECEDENTS’ ESTATES / §30.10

the decedent or within the applicable statute of limitations, whichever is earlier, are barred from payment from the estate. ORS 115.005(4).

H.

VII.

Up to the limits of insurance protection only, ORS 115.005 does not affect or prevent any proceeding to establish the liability of the decedent or personal representative when the decedent or personal representative had liability insurance when the proceeding was commenced.

ORS 115.005(5)(b).

(§30.7) A.

The personal representative must mail notice of the final accounting and petition for decree of distribution to interested persons and allow interested persons at least 20 days to file objections to the accounting.

ORS 116.093(1).

B.

The court may permit an action against the personal representative within one year after the order discharging the personal representative if the order was obtained by fraud or misrepresentation made by the personal representative or his or her surety, or through the mistake, inadvertence, surprise, or excusable neglect of the claimant. ORS 116.213.

C.

See ORS 116.303-116.383 regarding the apportionment of estate taxes.

VIII. (§30.8)

IX.

X.

Accounting, Distribution, and Closing

Reopening of Estate

A.

An estate will be reopened to admit a will to probate, such as when a new will has been discovered, only within one year after the estate has been administered in Oregon and closed. ORS 113.027.

B.

The court may reopen the estate on the petition of any interested person at any time to administer newly discovered property or for other proper cause. ORS 116.233.

(§30.9)

Escheat

A.

The county clerk gives the Director of the Division of State Lands the title of estates that have been opened for more than three years if there are no heirs or uncontested claims to the estate. ORS 116.243.

B.

Escheated property may be reclaimed by a person not having actual knowledge of the decree or order within 10 years after the decree of final distribution. ORS 116.253(1).

(§30.10) Estates of Absentees A.

The estate of an absentee may be administered on a petition showing facts of the absentee’s death or that the absentee’s whereabouts has been unknown to the petitioner for more than one year. ORS 117.005.

67

DECLARATORY JUDGMENTS / §31.3

•

B.

XI.

XII.

A date for hearing will be set at least 30 days after the petition is filed. ORS 117.015.

The absentee has no rights in property sold by the personal representative in the administration of the absentee’s estate, but the absentee may recover remaining assets and proceeds realized in the personal representative’s possession. The absentee may recover any of the estate or proceeds in the distributee’s possession for a period of five years after the estate is distributed. ORS 117.075.

(§30.11) Rule Against Perpetuities A.

The Uniform Statutory Rule Against Perpetuities provides that any interest in property created after January 1, 1990, will be subject to the “wait and see” approach. A property disposition is subject to judicial reformation if it does not vest or fails to vest within 90 years. ORS 105.950, 105.960.

B.

This statute eliminates the traps created by the “fertile octogenarian,” the “unborn widow,” and the “slothful executor” situations.

(§30.12) References See generally ADMINISTERING OREGON ESTATES (Oregon CLE 1991 & Supps 2000, 2002).

DECLARATORY JUDGMENTS

I.

II.

III.

(§31.1)

Generally

A.

ORS chapter 28 includes the Uniform Declaratory Judgments Act but does not include any reference to limitations for the commencement of actions. ORS 28.010-28.160.

B.

The time limit for commencement of an action depends on the nature of the underlying claim. Brooks v. Smith, 27 Or App 441, 556 P2d 696 (1976); Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976).

(§31.2)

Appeal

A.

All orders, judgments, and decrees rendered in a declaratory judgment action are subject to review or appeal just as is any other order, judgment, or decree. ORS 28.070.

B.

See also APPELLATE PRACTICE AND PROCEDURE.

(§31.3)

References

See generally 2 OREGON CIVIL PLEADING AND PRACTICE ch 33 (Oregon CLE 1994 & Supp 2001); APPEAL AND REVIEW (Oregon CLE 1993 & Supp 2002).

68

DEFAMATION / §32.3

DEFAMATION I.

II.

(§32.1)

Generally

A.

An action for libel or slander must be filed within one year of the date of occurrence. ORS 12.120(2).

B.

“The gravamen of the tort of defamation is the injury to the plaintiff’s reputation caused by a statement communicated to someone other than to the plaintiff . . . [E]ach publication is a discrete tort.” Schenck v. Oregon Television, Inc., 146 Or App 430, 435, 934 P2d 480 (1997); Kraemer v.

Harding, 159 Or App 90, 102, 976 P2d 1160, rev den, 329 Or 357 (1999). See Simpson v. Burrows, 990 F Supp 2d 1108, 1125 (D Or 2000).

C.

A demand for correction or retraction of a published defamatory statement must be delivered to the publisher either personally or by registered or certified mail, at the publisher’s place of business or residence within 20 days after the defamed person receives actual notice of the statement. ORS 30.165(1).

D.

The publisher has two weeks after receiving the demand to investigate the demand and publish the correction or retraction. ORS 30.165(2).

E.

A plaintiff’s failure to demand a timely retraction after the original broadcast of a defamatory statement does not preclude a claim based on a timely demand for retraction following a rebroadcast. Schenck v.

Oregon Television, Inc., supra.

(§32.2)

Slander of Title

An action for slander of title to real property must be commenced within one year from the date a prospective sale was lost due to the slander of title.

ORS 12.120(2); Diamond v. Huffman, 64 Or App 330, 667 P2d 1040 (1983); Shenefield v. Axtell, 274 Or 279, 545 P2d 876 (1976).

III.

(§32.3)

False Light and Other Claims Related to Defamation

Claims related to libel or slander may also be subject to the one-year limitations period of ORS 12.120(2).

•

A false light claim that alleges facts that could also constitute a claim for defamation is subject to the one-year limitations period of ORS 12.120(2).

Magenis v. Fisher Broadcasting, Inc., 103 Or App 555, 559-560, 798 P2d 1106 (1990).

•

An action for negligent injury to reputation is an action for defamation subject to the one-year statute of limitations in ORS 12.120(2). Coe v.

Statesman-Journal Co., 277 Or 117, 560 P2d 254 (1977).

69

DISCOVERY – PRETRIAL / §33.1

•

IV.

When a claim is based on negligent release of confidential information under ORS 342.176(4), the claim is not governed by the one-year statute of limitations in ORS 12.120(2). Bradbury v. Teacher Standards and Practices Comm., 151 Or App 176, 181-182, 947 P2d 1145 (1997), aff’d, 328 Or 391 (1999).

(§32.4)

Discovery Rule

A discovery rule may apply to extend the one-year limitations period of ORS 12.120(2).

V.

•

When an allegedly libelous memorandum was confidential in nature and the initial publication was not of a type that the plaintiff would be presumed to know about, the limitations period of ORS 12.120(2) began to run when the plaintiff discovered the existence of the memorandum. White v.

Gurnsey, 48 Or App 931, 618 P2d 975 (1980).

•

For purposes of the discovery rule, the plaintiff does not have to know the precise nature of the claim. Actual knowledge of substantially all of the content is sufficient to trigger the statute of limitations. Holdner v. Oregon Trout, Inc., 173 Or App 344, 22 P3d 244 (2001), citing Gaston v. Parsons, 318 Or 247, 255, 864 P2d 1319 (1994).

•

The discovery rule, under which the statute of limitations is tolled until the plaintiff knows or reasonably should know of a claim against the defendant, did not apply to an action for defamation made in public meeting. Workman v. Rajneesh Foundation International, 84 Or App 226, 733 P2d 908 (1987); FDIC v. Smith, 328 Or 420, 428, 980 P2d 141 (1999).

(§32.5)

Oregon Tort Claims Act

ORS 12.120(2) applies to defamation claims brought under the Oregon Tort Claims Act. ORS 30.275(9); Masters v. Secretary of State, 88 Or App 221, 224, 744 P2d 1309 (1987).

VI.

(§32.6)

References

See generally 1 TORTS ch 5 and 2 TORTS ch 24 (Oregon CLE 1992 & Supp 2000).

DISCOVERY – PRETRIAL I.

70

(§33.1)

Depositions

A.

A deposition may be taken at any time after service of summons and complaint on reasonable notice in writing to all parties in the action.

ORCP 39 A.

B.

Leave of court must be obtained if the plaintiff seeks to take a deposition before a defendant’s time to appear has expired, unless the defendant has

DISCOVERY – PRETRIAL / §33.3

served a notice of taking deposition or has otherwise sought discovery, or if the person to be deposed will be unavailable after the time for appearance has expired. ORCP 39 A, C(2).

II.

(§33.2) A.

B.

C.

III.

A recording or transcription of the testimony must be submitted to the witness for examination only when a request for submission to the witness is made at the time the deposition is taken, or by leave of the court when a request is made by a party or witness any time before trial.

ORCP 39 F(1).

The party who took the deposition must promptly serve all parties with notice of changes to the transcript made by the witness. The witness must make a written statement that the transcript or recording is correct subject to the changes within 30 days after the deposition was submitted to the witness. ORCP 39 F(2). If the statement is not made within the 30day period, the party taking the deposition must state on the transcription or in a writing to accompany the recording the fact of the waiver, or the physical incapacity or absence of the witness, or the fact of refusal of the witness to make the statement, together with the reasons, if any are given. ORCP 39 F(2).

Objections to competency, relevancy, or materiality are not waived by failure to make them before or during deposition testimony, unless the ground for the objection might have been remedied if presented at the deposition. ORCP 41 C(1).

•

Objections to the manner of taking the deposition, to the form of the questions or answers, to the oath or affirmation, or to the conduct of the parties are waived if not made at the taking of the deposition.

ORCP 41 C(2).

•

Objections to irregularities in transcription or preparation of testimony are waived unless a motion to suppress is made with reasonable promptness after discovery of the defect. ORCP 41 D.

(§33.3) A.

Perpetuation of Testimony

After commencement of an action, any party may perpetuate the testimony of a witness for the purpose of trial by serving a perpetuation deposition notice. ORCP 39 I(1).

•

B.

Corrections to Depositions

A perpetuation deposition must be taken not less than seven days before trial, and at least 14 days’ notice must be given. ORCP 39 I(4).

Objections to a perpetuation deposition must be made by motion pursuant to ORCP 36 C before the time set for the deposition. ORCP 39 I(3).

71

DISCOVERY – PRETRIAL / §33.6

•

IV.

V.

VI.

72

(§33.4)

All objections to testimony or evidence taken at the perpetuation examination must be made at the time of the deposition and noted on the record for resolution by the court before the testimony is offered.

Objections not made at the deposition are waived. ORCP 39 I(6).

Written Depositions

A.

After commencement of the action, by stipulation of the parties or leave of court, any party may take the testimony of any person by written questions. ORCP 40 A.

B.

Cross questions may be served within 30 days after notice and questions are served. Redirect questions may be served within 10 days after receipt of service of cross questions. Recross questions may be served within 10 days after receipt of redirect questions. ORCP 40 A.

C.

Objections to the form of written questions are waived unless served in writing on the party propounding them, within the time allowed for serving cross, redirect, or recross questions, and within 20 days after service of the last authorized questions. ORCP 41 C(3).

(§33.5)

Production of Documents

A.

A request for the production of documents may be served on the plaintiff after the commencement of the action, and may be served on any other party with or after service of summons on that party. ORCP 43 B.

B.

A defendant cannot be compelled to produce documents before 45 days after service of summons unless the court specifies a shorter time.

ORCP 43 B.

C.

A subpoena requiring document production without testimony from a nonparty in a civil case must be served on all parties at least seven days before service of the subpoena on the nonparty, unless the time is shortened by the court. ORCP 43 D, 55 D(1). The nonparty is allowed at least 14 days to produce the material, unless the time is shortened by the court. ORCP 55 D(1).

(§33.6)

Production of Hospital Records and Medical Records

A.

Hospital records may be obtained by subpoena only as provided in ORCP 55 H. If the subpoena directs delivery of the records to the attorney or party issuing the subpoena, then a copy of the subpoena must be served on the person whose records are sought, and on all other parties to the litigation, not less than 14 days before serving the subpoena on the hospital. ORCP 55 H(2)(b).

B.

A true copy of a subpoena duces tecum for medical records must be served on the attorney for the patient, or on an unrepresented patient, not less than 14 days before the subpoena is served on a custodian of

DISMISSAL AT TRIAL – EFFECT ON STATUTE OF LIMITATIONS / §35.1

medical records. The court may shorten or lengthen the period for good cause. ORCP 55 I(2).

VII.

(§33.7)

Requests for Admissions

A.

A request for admissions may be served by any party on another party after commencement of an action. ORCP 45 A.

B.

A response must be made within 30 days of service of a request or the matter is deemed admitted. A defendant is not required to answer or object to a request for admissions until 45 days after service of the summons and complaint on the defendant. ORCP 45 B.

VIII. (§33.8) References See generally 2 OREGON CIVIL PLEADING AND PRACTICE chs 25-27 (Oregon CLE 1994 & Supp 2001); 1 CIVIL LITIGATION MANUAL chs 16-18 (Oregon CLE 1993 & Supp 1999).

DISHONORED BANK CHECKS AND INSTRUMENTS I.

(§34.1)

In addition to the amount for which the check was drawn, a plaintiff may recover damages equal to the greater of $100 or triple the amount of a dishonored check, but not more than $500 over the face amount of the check, by giving the maker of the dishonored check a written demand for payment of the amount of the check at least 30 days before commencing an action on the check. ORS 30.701(1)B(2).

•

II.

(§34.2)

NOTE: ORS 30.701(2) applies only to checks made on or after October 4, 1997. Checks made before that date are governed by former ORS 20.090, 30.700, and 82.300. See the note following ORS 30.701.

The payee’s claim will be satisfied if, after the action commences but before the trial, the defendant pays the amount of the check, interest, service fees (up to $25 per check), court costs, and attorney fees. ORS 30.701(3), (5).

DISMISSAL AT TRIAL – EFFECT ON STATUTE OF LIMITATIONS I.

(§35.1) A.

Savings Clause

If an action is commenced within the statute of limitations and is dismissed at trial or on appeal after the statute has run, the plaintiff may refile the action within one year. This rule is known as the savings clause because the plaintiff’s rights have not been concluded. ORS 12.220; Quick v. Andresen, 238 Or 433, 395 P2d 154 (1964).

73

DISMISSAL AT TRIAL – EFFECT ON STATUTE OF LIMITATIONS / §35.2

II.

74

•

“On trial thereof” includes a trial on a matter of law, including a dismissal for lack of jurisdiction. ORS 12.220; Hatley v. Truck Insurance Exchange, 261 Or 606, 494 P2d 426 (1972).

•

The savings clause in ORS 12.220 does not apply to causes of action that were not brought in the original action. McNeely v.

Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992).

•

The savings clause does not apply to the trial court’s review of an action by a different tribunal when such review “is in the nature of an appeal.” US West Communications, Inc. v. Eachus, 124 Or App 325, 329-330, 862 P2d 102 (1993).

•

The savings clause set forth in ORS 12.220 does not apply to a cause of action described in ORS 72.7250 (action for breach of contract for sale). See ORS 72.7250 for the savings clause applicable to actions for breach of a contract for sale.

B.

Dismissal for lack of prosecution does not invoke the one-year extension. ORS 12.220; Fuller v. Safeway Stores, 258 Or 131, 481 P2d 616 (1971); Te-Ta-Ma Truth Foundation v. Vaughan, 114 Or App 448, 835 P2d 938 (1992) (dismissal with prejudice for failure to obtain counsel is analogous to dismissal for lack of prosecution; savings clause does not apply). However, the dismissal of an inactive case pursuant to a removal order will not result in the right to refile under ORS 12.220 if the procedural requirements of ORCP 54 B(3) are not followed. Moore v. Ball, Janik & Novak, 120 Or App 466, 852 P2d 937 (1993).

C.

Even if the trial court does not have personal or subject-matter jurisdiction of the first action brought, the action is deemed “commenced” within the savings clause if brought within one year after dismissal. ORS 12.220; Stevens v. Scanlon, 248 Or 229, 430 P2d 1019 (1967).

D.

ORS 12.220 does not apply to a dismissal after a trial on the merits.

Tikka v. Martin, 271 Or 287, 532 P2d 18 (1975).

E.

When the trial court dismisses a case, the time spent on an appeal from that dismissal is not included when calculating the one year within which a party is allowed to commence a new action on the same cause. ORS 12.220; Sanok v. Grimes, 306 Or 259, 760 P2d 228 (1988).

(§35.2)

Reversal and Nonsuit

EMPLOYER – EMPLOYEE / §36.2

A.

A plaintiff may refile a claim in state court within one year of reversal by the Ninth Circuit Court of Appeals. ORS 12.220; Beetham v. GeorgiaPacific, 87 Or App 592, 595 n 2, 743 P2d 755 (1987).

B.

A voluntary nonsuit granted before the trial commences is not a dismissal within the meaning of ORS 12.220. Vandermeer v. Pacific Northwest Dev. Corp., 284 Or 517, 587 P2d 98 (1978); Alderson v. State of Oregon, 105 Or App 574, 806 P2d 142 (1991). A voluntary nonsuit granted during trial is a dismissal under ORS 12.220, and the additional year to refile is applicable. Quick v. Andresen, 238 Or 433, 395 P2d 154 (1964).

C.

All defenses that would have been available against the first action will be available against the action filed within one year of dismissal or reversal, even though the statute of limitations on those defenses has run.

ORS 12.220.

EMPLOYER – EMPLOYEE

I.

II.

(§36.1)

Wages

A.

When an employee is discharged or when the employment relationship is terminated by mutual agreement, the employer must pay the employee all earned and unpaid wages by the end of the first business day after the discharge or termination. ORS 652.140(1).

B.

Unpaid wages are due immediately when an employee quits employment after giving the employer not less than 48 hours’ notice (excluding Saturdays, Sundays, and holidays) of the intention to quit employment.

If no notice is given to the employer, wages are due within five days (excluding Saturdays, Sundays, and holidays), or at the next regularly scheduled payday after the employee has quit, whichever occurs first.

ORS 652.140(2).

C.

An action based on a contract for the payment of wages must be commenced within six years of the date wages become due. ORS 12.080(1); State ex rel Nilsen v. B. Jacques Chev., 16 Or App 552, 520 P2d 366 (1974).

D.

An action for overtime or premium pay, or for penalties or liquidated damages for failure to pay overtime or premium pay, must be commenced within two years. ORS 12.110(3).

(§36.2) A.

Wage Claims

Within 30 days after an employer’s property is seized by any court process or is placed in receivership, an employee may make a claim (up

75

FALSE IMPRISONMENT OR ARREST / §37.2

to $2,000) for wages earned in the 90 days preceding the seizure, transfer, or assignment of the property. ORS 652.510(1).

III.

IV.

•

An employee enforcing a claim under ORS 652.510(1) may make a claim with the officer or person charged with the execution of the process, within 30 days after the seizure of the property on any execution or writ of attachment, or may make a claim with the assignee or receiver within 45 days after the property is placed in the hands of an assignee or receiver. ORS 652.510(2).

•

Any interested person may object to the wage claim within 10 days after the claim report for wages is filed. ORS 652.540(1).

B.

If a claim has been objected to, the claimant must file an action at law within 30 days after the objection is filed, and serve the complaint on the objecting party and the principal debtor. ORS 652.540(2).

C.

Wage claimants have priority against property sold, transferred, mortgaged, or liened to pay or secure a preexisting debt, but must claim against the transferee within 10 days after actual delivery of the property to the transferee or within 30 days after the recording of a deed or transfer. The wage claimant must also file a court action within 30 days after the notice of claim is served. ORS 652.570(1)(a).

(§36.3)

Employer Liability Law

A.

No new cause of action is created by the law. ORS 654.305 increases the employer’s burden for hazardous occupations but does not increase the liability.

B.

The two-year statute of limitations for negligent personal injury is applicable to actions under the Employer Liability Law. Shelton v. Paris, 199 Or 365, 261 P2d 856 (1953).

C.

See also WORKERS’ COMPENSATION.

(§36.4)

References

See generally LABOR AND EMPLOYMENT LAW: PRIVATE SECTOR (Oregon CLE 2002); 2 TORTS ch 27 (Oregon CLE 1992 & Supp 2000).

FALSE IMPRISONMENT OR ARREST I.

(§37.1)

An action must be commenced within two years of injury. ORS 12.110(1).

II.

(§37.2)

The supreme court recognizes “false arrest” as a synonym for “false imprisonment.” Hylton y. Phillips, 270 Or 766, 529 P2d 906 (1974).

76

FAMILY LAW (DOMESTIC RELATIONS) / §38.2

III.

(§37.3)

See generally 1 TORTS ch 2 (Oregon CLE 1992 & Supp 2000); 1 DAMAGES ch 16 (Oregon CLE 1998 and Supp 2002).

FAMILY LAW (DOMESTIC RELATIONS)

I.

(§38.1) A.

The respondent must be served with a summons and petition, and the parties must wait 90 days from the date of service or first publication before a trial or hearing may be held. ORS 107.065(1).

B.

The court may waive the waiting period on motion and affidavit stating grounds of emergency or necessity. ORS 107.065(2).

C.

The marriage relationship is terminated when the court signs the judgment of dissolution of marriage. ORS 107.115(2).

D.

A written response is required within 30 days after service of a motion to modify the decree. ORS 107.135(11).

E.

The statement of marital assets and liabilities required under UTCR 8.010(4) must be filed and served at the time designated by the relevant supplemental local rules (SLRs) or, in the absence of an SLR, not less than 14 days before the hearing on the merits. The parties may stipulate otherwise but, in any event, must file no later than the beginning of trial.

UTCR 8.010(6).

•

II.

Dissolution of Marriage

The Uniform Support Affidavit required under UTCR 8.010(5) must be filed and served at the time designated by the relevant SLRs or, in the absence of an SLR, not less that 14 days before the hearing on the merits. UTCR 8.010(6). The parties may stipulate otherwise but, in any event, they must file no later than the beginning of trial.

F.

When support will be an issue at prejudgment relief sought under ORS 107.095(1), the opposing party must serve and file a Uniform Support Affidavit on the moving party at least seven days before the hearing.

UTCR 8.040(4).

G.

When support will be an issue in judgment modification proceedings under ORS 107.135, the opposing party must serve and file a Uniform Support Affidavit on the moving party at least seven days before the hearing. UTCR 8.050(3).

(§38.2) A.

Jurisdiction

A court has jurisdiction over a party to determine a question of the party’s status under ORS chapter 106 (marriage) and ORS chapter 107 (dissolution) when the plaintiff is a resident of or is domiciled in this state. ORCP 4 K(1), 7.

77

FAMILY LAW (DOMESTIC RELATIONS) / §38.4

B.

A court has jurisdiction over a party to enforce personal obligations arising under ORS chapter 106 and chapter 107 if the parties to a marriage have concurrently maintained the same or separate residences or domiciles in Oregon for six months, notwithstanding departure from Oregon and residence or domicile in another state or country before filing the action. ORCP 4 K(2).

•

C.

III.

IV.

There is no jurisdiction if an action to enforce obligations is not brought within one year of one of the parties’ establishing a new residence or domicile in another state or country. ORCP 4 K(2).

In an action to establish paternity, the court has jurisdiction when the act of sexual intercourse that resulted in the birth is alleged to have taken place in Oregon. ORCP 4 K(3).

(§38.3)

Liens

A.

In general, a judgment for future payment of money is a lien on real property for 10 years from the date of docketing the order, judgment, or decree and can be renewed pursuant to ORS 18.360. ORS 107.126(1).

B.

When a judgment divides the marital property under ORS 107.105(1)(f), however, and provides for future payment of money to become due in 10 or more years from the date that the judgment is entered, that “future” part of the judgment and lien do not expire until 10 years after the future payment becomes due. Before that 10-year period expires, the court may renew the judgment that has become due in the preceding 10 years. The renewal expires 10 years after the renewed judgment is entered. ORS 18.360(3). ORS 18.360 applies to the State of Oregon as a party, and the state must renew judgments resulting from domestic relations cases before the 10-year expiration of the judgment lien. Hovden and Hovden, 104 Or App 514, 802 P2d 89 (1990).

C.

Any child support judgment under ORS 25.700 (unpaid child support) that is entered and docketed on or after January 1, 1994, continues to be a lien on real property for 25 years after the judgment is entered and docketed. ORS 107.126(2).

D.

The 10-year lien resulting from a domestic relations judgment commences when the judgment is entered and does not commence on the occurrence of a condition in the future, such as emancipation of a minor child. Ostlund v. Ostlund, 98 Or App 540, 779 P2d 1096 (1989).

(§38.4)

Spousal Support

A paying spouse may ask the court to set aside spousal support in a judgment of dissolution after the paying spouse has paid support for more than 10 years

78

FAMILY LAW (DOMESTIC RELATIONS) / §38.7

when the former spouse has not made reasonable efforts to become selfsupporting. ORS 107.407.

V.

VI.

VII.

•

The 10-year rule does not apply if the supported spouse is over 60 years of age at the time of the petition to set aside the support provision of the decree. ORS 107.412(4).

•

The 10-year rule does not apply if spousal support was granted in lieu of a share of property in order to provide the other spouse with a tax benefit.

ORS 107.407.

(§38.5)

Separation

A.

A decree of separation may be modified on motion and at least 30 days’ notice within two years after the decree is entered to allow supplemental proceedings to dissolve the marriage. ORS 107.465.

B.

The court will fix the period of separation, and the decree has no effect after the period has expired. ORS 107.475.

(§38.6)

Parent and Child

A.

After one year has expired from the date that an adoption decree is entered, the validity of the adoption is conclusive on all persons. ORS 109.381(3). However, a judgment of adoption entered without notice to one parent must be vacated. Phariss v. Welshans, 150 Or App 498, 503B504, 946 P2d 1160 (1997).

B.

A nonregistering party who wishes to contest the validity or enforcement of a registered support order or income-withholding order must request a hearing within 20 days after the date that the notice of registration was mailed or personally served. ORS 110.417.

C.

A creditor who wishes to collect a debt that appears to be “expenses of the family” must commence the action within “the period otherwise provided by law.” ORS 108.040.

(§38.7) A.

Filiation

The old statute of limitations for filiation proceedings has been ruled unconstitutional. State ex rel AFSD v. Tuttle, 304 Or 270, 744 P2d 990 (1987); State ex rel Adult & Fam. Ser. v. Bradley, 295 Or 216, 666 P2d 249 (1983).

•

ORS 109.125-109.235 do not include a statute of limitations.

B.

A putative father may move to set aside the judgment of paternity within one year if he establishes fraud of the petitioner. ORS 109.096(8).

C.

Voluntary acknowledgment of paternity may be rescinded only up to the earlier of (1) 60 days after the form is filed with the state registrar or (2) the date an order relating to the child is entered. After the 60-day period, 79

FAMILY LAW (DOMESTIC RELATIONS) / §38.9

a party may challenge only on the basis of fraud, duress, or material mistake of fact. ORS 109.070(2).

D.

•

A voluntary acknowledgement may be challenged (1) at any time after the 60-day period on the basis of fraud, duress, or material mistake of fact or (2) within one year after it is filed.

•

A party to the acknowledgment or the state may apply for an order requiring genetic testing if the test was not previously completed and if child support enforcement services are being provided pursuant to ORS 25.080.

Expert testimony regarding blood tests must be submitted at least 20 days before the paternity proceedings. ORS 109.254(2).

•

VIII. (§38.8) A.

IX.

Expert testimony may be introduced by affidavit unless a written challenge to the testing procedure or results is filed with the court and delivered to opposing counsel at least 10 days before the paternity hearing. ORS 109.254(2).

Juvenile Proceedings

A juvenile offender’s length of stay in a detention facility is ordinarily limited to 28 days. The limit may be extended for an additional 28 days if the juvenile expressly consents or the court finds good cause. ORS 419C.150(1). The 28-day limit does not apply if the juvenile is charged with certain crimes listed in ORS 419C.150(2).

B.

If a child is in detention or shelter care, a preliminary hearing must be held within 36 hours, excluding weekends and judicial holidays, after placement in detention, except as ordered by the court on a showing of good cause. ORS 419C.139.

C.

A dispositional hearing will be held within 28 days after the juvenile court assumes jurisdiction, except as ordered by the court on good cause.

UTCR 11.050.

D.

A prehearing investigation report will be made available to the parties at least seven days before the dispositional hearing unless the parties stipulate to a shorter time. UTCR 11.060(1).

(§38.9)

Husband and Wife

The Oregon Supreme Court abolished spousal immunity and agreed with the Restatement (Second) of Torts §895F (1979). Heino v. Harper, 306 Or 347, 378, 759 P2d 253 (1988). The Restatement rule provides that marriage by itself does not create immunity from tort liability, but recognizes that the marital relationship might affect the standard of care, with doctrines such as consent and privilege rendering conduct between spouses nontortious. See Heino v.

Harper, supra, 306 Or at 376; RESTATEMENT (SECOND) OF TORTS §895F(2) 80

FRAUD AND DECEIT / §40.2

(1979). In Cary v. Cary, 159 Or 578, 80 P2d 886 (1938), the court followed public policy considerations in holding that marriage tolls the statute of limitations in a claim between spouses. Without citing Cary, the court in Heino v. Harper, supra, rejected the same policy considerations. It is questionable whether the Cary case would be decided the same way today. See Richard W. Scholl, Alone at Last–Oregon Abolishes Interspousal Immunity for Negligent Torts in Heino v. Harper, 25 WILLAMETTE L REV 429, 452 (1989).

X.

(§38.10) Child Abuse A civil action based on child abuse that occurs while the victim is under 18 years of age must be commenced within the longer of (1) six years after the child turns 18 years old or (2) if the injured person does not discover the injury or the causal connection between the injury and the child abuse, then three years from the date of the discovery. ORS 12.117. This statute of limitations may revive a cause of action barred by former ORS 12.117. See the note following ORS 12.117.

XI.

(§38.11) References See generally FAMILY LAW (Oregon CLE 2002).

FINES AND FORFEITURES

I.

(§39.1)

The defendant is personally liable to the county for unpaid fines or costs resulting from a proceeding before a county hearings officer to enforce county ordinances if the fines or costs are not paid within 60 days after payment is ordered. ORS 30.460.

II.

(§39.2)

The order for payment may be recorded in the County Clerk Lien Record. ORS 30.460.

FRAUD AND DECEIT

I.

(§40.1)

An action based on fraud or deceit must be commenced within two years after the date of discovery of the fraud or deceit. ORS 12.110(1); see ORS 12.040(4).

II.

(§40.2)

“Discovery” of the fraud or deceit requires that (1) a plaintiff have sufficient knowledge to excite attention and put the plaintiff on guard or cause the plaintiff to make an inquiry and (2) with such knowledge, a reasonably diligent inquiry by the plaintiff would disclose the fraud. Mathies v. Hoeck, 284 Or 539, 588 P2d 1 (1978); Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994); Widing v.

Schwabe, Williamson & Wyatt, 154 Or App 276, 961 P2d 889 (1998).

81

GARNISHMENT / §41.3

III.

(§40.3)

See generally REAL PROPERTY; 2 TORTS chs 22, 31 (Oregon CLE 1992 & Supp 2000); CONTRACT LAW IN OREGON ch 6 (Oregon CLE 1991 & Supp 1999).

GARNISHMENT

I.

II.

III.

(§41.1) A.

A writ of garnishment issued by a court clerk or a plaintiff’s attorney must be delivered to the garnishee within 60 days after issuance to effect a valid attachment of property or debt. ORS 18.609(1).

B.

Some writs act as a continuing lien. Except as noted in C. below, a plaintiff may garnish all the defendant’s nonexempt wages during the period commencing with the date the writ is delivered and ending on the earlier of 90 days after the date the writ is delivered or the date the garnishment is released or satisfied in full. ORS 18.625(2).

D.

If the plaintiff is a county or county agency, a writ served on an employer is a continuing garnishment until the debt is paid in full or the writ is released. ORS 18.625(3). (For state agency, see ORS 18.902.)

(§41.2)

Response Required

A.

Within seven calendar days of the day the writ is delivered to the garnishee, the garnishee must prepare and deliver a garnishee response in the form and manner provided in ORS 18.835 and ORS 18.690.

ORS 18.680(2). If the seventh calendar day after delivery of a writ of garnishment is a Saturday, Sunday, or legal holiday, a garnishee response must be delivered by the garnishee on or before the next following day that is not a Saturday, Sunday, or legal holiday. ORS 18.680(3).

B.

The sheriff will direct the garnishee to deliver the defendant’s property only if the sheriff receives from the garnishor a written request for sale of the property and the fees within 20 days after the garnishee delivers the garnishee response. ORS 18.755(1). The sheriff must conduct the sale of property within 15 days after notice is sent to the garnishee to hold property or after the property is delivered to the sheriff. ORS 18.758.

C.

The garnishor must return any funds exceeding the amount owing on the debt within 10 days of receiving payment. ORS 18.745.

(§41.3) A.

82

Delivery and Duration of Writ

Delivery of Property

If the sheriff fails to give the garnishee notice to either hold or deliver property to the sheriff within 30 days of delivery of the garnishee response, the lien of garnishment becomes ineffective. ORS 18.752(2).

GARNISHMENT / §41.6

IV.

V.

VI.

B.

If the garnished property is a debt that will become due within 45 days after the writ is delivered to the garnishee, the garnishee must deliver the property within five days after the debt becomes due. ORS 18.732(1).

C.

Costs for gaining entry to any safe deposit box must be paid within 20 days after delivery of the garnishee response, or the garnishment becomes ineffective to garnish any property in that safe deposit box.

ORS 18.792.

(§41.4)

Challenge to Garnishment

A.

The defendant may claim an exemption from garnishment by delivering an exemption form to the court clerk that issued the writ. The claim of exemption must be filed within (1) 120 days after the writ of garnishment is delivered to the debtor if the challenge is based on an exemption that is claimed for wages earned or (2) 30 days after the writ of garnishment is delivered to the debtor if the challenge is based on other grounds. ORS 18.700(2).

B.

On receiving notice of a challenge to a garnishment under ORS 18.702, the garnishee must mail or deliver the required payment to the court within the time the garnishee would have otherwise been required to mail or deliver the payment to the garnishor. ORS 18.708.

(§41.5)

Allegations and Interrogatories

A.

Allegations against the garnishee pursuant to ORS 18.780 must be made within one year of delivery of the writ. ORS 12.085.

B.

If the court issues an order requiring the garnishee to appear in court for failure to act, a plaintiff’s allegations and optional interrogatories must be served not less than 20 days before the date of the plaintiff’s court appearance. The allegations must include notice that the garnishee’s answer must be filed not less than 10 days before the court appearance.

ORS 18.780(1).

C.

A plaintiff’s allegations for the garnishee’s failure to act must be filed not less than 20 days before the date the garnishee is ordered to appear in court. ORS 18.780(1).

D.

The garnishee’s answer to allegations must be filed and a true copy delivered to the plaintiff not less than 10 days before the court appearance date. ORS 18.780(2).

(§41.6)

References

See generally CREDITORS’ RIGHTS AND REMEDIES chs 1, 7 (Oregon CLE 2002); 2 OREGON CIVIL PLEADING AND PRACTICE ch 32 (Oregon CLE 1994 & Supp 1998).

83

GOVERNMENTAL AND PUBLIC BODIES / §42.1

GOVERNMENTAL AND PUBLIC BODIES I.

(§42.1) A.

84

Oregon Tort Claims Act

Notice. A plaintiff must give written notice of claim to a public body within 180 days of injury arising from an action or omission of the public body. ORS 30.275(1), (2)(b).

•

The 180-day written notice requirement does not begin to run until the plaintiff has a reasonable opportunity to discover his or her injury and the identity of the party responsible. Adams v. Oregon State Police, 289 Or 233, 238-239, 611 P2d 1153 (1980).

•

To be timely, notice of claim against the public body must actually be received by the public body within the stated period. Tyree v. Tyree, 116 Or App 317, 840 P2d 1378 (1992).

•

Notice requirements of the Oregon Tort Claims Act do not apply to claims based on a federal claim. Sanok v. Grimes, 306 Or 259, 760 P2d 228 (1988).

•

Limited exceptions to ORS 30.275(1) – (7) involve the Department of Human Services and the Oregon Youth Authority. See, ORS 30.275(8).

B.

Notice in Wrongful Death Action. A notice of claim for a wrongful death action must be given to the public body within one year after the alleged injury or loss. ORS 30.275(2)(a).

C.

Extension of Notice Period. The notice-of-claim period is extended for up to 90 days if the injured person is unable to give notice due to the injury or because of minority, incompetence, or other incapacity. ORS 30.275(2).

D.

Commencement of Action. An action must be commenced within two years after the loss or injury. ORS 30.275(9).

•

Minority, incapacity, or advance payment to a minor pursuant to ORS 12.155(2) does not toll the statute. Lawson v. Coos Co. School Dist. #13, 94 Or App 387, 765 P2d 829 (1988); Cooksey v. Portland Public School Dist. No. 1, 143 Or App 527, 923 P2d 1328 (1996); Pelster v. Walker, 185 F. Supp. 2d 1174, 1180 (2001).

•

The notice provisions of the Oregon Tort Claims Act are not tolled pending appointment of a guardian ad litem for a minor. Perez v. Bay Area Hospital, 315 Or 474, 846 P2d 405 (1993).

•

Actions arising from the construction, alteration, or repair of an improvement to real property may not be commenced later than 10

GOVERNMENTAL AND PUBLIC BODIES / §42.3

years from substantial completion or abandonment of the construction, alteration, or repair, regardless of the date of the loss or injury, ORS 12.135.

E.

II.

Exceptions. An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process must be commenced within one year. ORS 12.120(1).

•

An action against a sheriff or constable acting in an official capacity (but not including an action for escape) must be commenced within three years. ORS 12.100(1).

•

Actions brought in the name of or for the benefit of the state, county, or other Oregon public corporation are not affected by the limitations set forth in ORS chapter 12 unless a statutory limitation is made expressly applicable or is applicable by necessary implication.

ORS 12.250; City of Medford v. Budge-McHugh Supply Co., 91 Or App 213, 754 P2d 607 (1988).

(§42.2) A.

An action on penalty or forfeiture when the party aggrieved is given the right to sue, except an action described in ORS 12.110, must be commenced within three years. ORS 12.100(2).

B.

An action on a statute for forfeiture or penalty to the state or county must be commenced within two years. ORS 12.110(2).

C.

An action on a statute for a penalty given in whole or in part to a private person who will prosecute for the penalty must be commenced within one year after the offense is committed. ORS 12.130.

•

III.

Penalty or Forfeiture

(§42.3)

If not commenced within one year, the action may be commenced by the district attorney on behalf of the state within two years thereafter.

ORS 12.130.

Administrative Procedures Act

A.

Application. The Oregon Administrative Procedures Act (APA), ORS 183.310-183.550, requires certain state agencies to adopt rules of procedure for use in rulemaking and in contested cases and similar types of proceedings. ORS 183.341(2). The APA does not apply to agencies in the legislative or judicial branches. ORS 183.310(1). Other state agencies are specifically exempted by statute from some or all of its provisions.

See, e.g., ORS 183.315.

B.

Emergency License Suspensions. The APA allows an agency to suspend or refuse to renew a license without a prior hearing when it finds a serious danger to the public health or safety and sets forth specific reasons for those findings. A hearing must be granted to the licensee 85

GUARDIANS AND CONSERVATORS / §43.1

only if the licensee demands a hearing within 90 days after the date of the notice of suspension or refusal to renew. ORS 183.430(2).

C.

Hearing Officer’s Proposed Orders. Unless a hearing officer is required by law or agency rule to issue a final order, the hearing officer must prepare and serve a proposed order on the agency and all parties to a contested case. The proposed order becomes final after the 30th day following the date of service of the proposed order, unless the agency within that period issues an amended order. ORS 183.464(1)B(2).

D.

Judicial Review of Agency Orders. Unless otherwise provided by statute, proceedings for judicial review of an agency contested-case order must be instituted in the court of appeals by filing a petition within 60 days following the date that the order is served. ORS 183.482(1).

Petitions for review of orders other than contested cases must be filed in the appropriate circuit court within 60 days following the date the order is served. ORS 183.484(1)B(2).

E.

IV.

•

If a petition for rehearing or reconsideration is filed, then the petition for judicial review must be filed within 60 days following the date that the order denying the petition for rehearing is served.

ORS 183.482(1), 183.484(2).

•

If a petition for rehearing is filed and the agency does not otherwise act, the petition for rehearing or reconsideration is deemed denied on the 60th day following the date that the petition for rehearing or reconsideration was filed. In such a case, a petition for judicial review must be filed within 60 days following the date that denial is deemed to occur. ORS 183.482(1), 183.484(2).

•

Circuit court decrees may be appealed to the court of appeals in the same manner as provided by law for appeals from the circuit court in suits in equity. ORS 183.500; see APPELLATE PRACTICE AND PROCEDURE.

Judicial Review of Validity of Agency Rule. A petition to the court of appeals to determine the validity of an agency rule may be made in the same manner as provided for review of orders in contested cases. ORS 183.400(1); see APPELLATE PRACTICE AND PROCEDURE.

(§42.4)

References

See generally 2 TORTS ch 26 (Oregon CLE 1992 & Supp 1996); 1 OREGON CIVIL PLEADING AND PRACTICE ch 8 (Oregon CLE 1994 & Supp 1998).

GUARDIANS AND CONSERVATORS I. 86

(§43.1)

Protective Proceedings Generally

GUARDIANS AND CONSERVATORS / §43.2

II.

A.

When an initial petition is filed to appoint a fiduciary, notice of the petition must be given to the persons listed in ORS 125.060 and ORS 125.065. The form of the notice is set forth in ORS 125.070.

B.

The intent to place a protected person in a care facility must be stated in the initial petition or in a subsequent motion, before placing the person in the facility, with timely notice. ORS 125.320(3).

C.

After the initial petition is filed, notices of the following motions must be given by the person making the motion to the persons listed in ORS 125.060(3): motion to terminate protective proceedings; motion to remove a fiduciary; motion to modify the fiduciary’s powers or authority; motion to approve the fiduciary’s actions; and motion for additional protective orders. ORS 125.060(3).

D.

Objections to a petition or motion must be made within 15 days after the notice of the petition or motion is served. ORS 125.075(2). If the Uniform Child Custody Jurisdiction Act (ORS 109.701, et. seq.) is involved, the deadline for filing objections to a petition to appoint a fiduciary is 21 days. ORS 125.065(3).

E.

When the court schedules a hearing on the objections, the person who filed the petition or made the motion, at least 15 days before the hearing date, must notify the persons listed in ORS 125.060(3) of the date, time, and place of the hearing. ORS 125.075(3), (5).

F.

The notice requirements, as to time and content, must be complied with or the appointment of the fiduciary will be invalid. Middleton v. Chaney, 177 Or App 679, 34 P3d 722 (2001), aff’d as mod, 335 Or 58 (2002); Spady v. Hawkins, 155 Or App 454, 459, 963 P2d 125 (1998).

(§43.2)

Guardian

A.

Notice to interested persons must be served no less than 15 days before the deadline for filing objections to the petition to appoint a guardian.

ORS 125.065(3).

B.

Notice of a hearing on objections is due 15 days before the hearing.

ORS 125.075(3).

C.

The visitor’s report is due 15 days after the visitor is appointed.

ORS 125.155(1).

D.

The guardian must make an annual report, which is due 30 days after each anniversary of the guardian’s appointment. ORS 125.325.

E.

If a conservator has not been appointed, a guardian must file federal and state income tax returns for the protected person within the times required by the applicable tax code. IRC §6012(B)(2).

87

GUARDIANS AND CONSERVATORS / §43.5

III.

IV.

V.

88

(§43.3)

Guardian ad Litem

A.

The statute of limitations for a cause of action held by a minor or an incapacitated person is tolled for up to five years. ORS 12.160. The appointment of a guardian ad litem does not change the effect of this statute. Luchini v. Harsany, 98 Or App 217, 222, 779 P2d 1053 (1989).

B.

The notice provisions of the Oregon Tort Claims Act are not tolled pending appointment of a guardian ad litem for a minor. Perez v. Bay Area Hospital, 315 Or 474, 846 P2d 405 (1993).

(§43.4)

Temporary Guardian

A.

A temporary guardian may be appointed only for a specific purpose and only for a time period not exceeding 30 days. The temporary fiduciary’s authority may be extended for an additional 30 days on good cause shown. ORS 125.600(3).

B.

A person seeking appointment of a temporary guardian, or extension of a temporary guardianship beyond 30 days, must give notice to certain persons listed in ORS 125.060(2) at least two days before the temporary fiduciary is appointed or guardianship extended. ORS 125.605(2)-(3).

C.

If objections to the appointment are made, the court must hold a hearing within two judicial days after the objections are filed. ORS 125.605(5).

D.

A visitor must be appointed within three days of the appointment of the temporary guardian. The visitor’s report must be submitted within five days after the temporary fiduciary’s appointment. ORS 125.605(4).

E.

The temporary guardian’s report is due 30 days after he or she is appointed. ORS 125.610. If the temporary guardian is appointed as a permanent guardian, however, the report is due one year after the appointment. ORS 125.610.

(§43.5)

Conservator

A.

Notice to interested persons must be served no less than 15 days before the deadline for filing objections to the petition to appoint a conservator.

ORS 125.065(3).

B.

Objections to the appointment must be filed within 15 days of service of the notice of the filing of the petition to appoint a conservator. ORS 125.075.

C.

Notice of a hearing on objections is due 15 days before the hearing.

ORS 125.075(3).

D.

If the court has appointed a visitor, the visitor’s report is due 15 days after the visitor’s appointment. ORS 125.155(1).

INDEMNITY / §44.2

VI.

E.

The bonding company must give 30 days’ notice before canceling the bond. ORS 125.415(1).

F.

The conservator has 90 days after his or her appointment to file the inventory. The conservator must file a supplemental inventory within 30 days of receiving or learning of additional estate property. ORS 125.470.

G.

A creditor’s claim against the estate that is not allowed within 60 days after it is presented is deemed to be disallowed. ORS 125.500(1). A creditor must wait 30 days after disallowance of a claim to exercise remedies against the security. ORS 125.500.

H.

When the creditor requests a summary hearing of a claim against the conservatorship, the conservator has 30 days to notify the claimant that he or she may commence a separate action on the claim. The creditor then has 60 days to file that separate claim. ORS 125.510.

I.

The statute of limitations against a conservatorship is tolled for up to 90 days while the conservator considers the claim. ORS 125.515.

J.

The conservator must file an accounting every year, which is due 30 days after each anniversary of the conservator’s appointment.

ORS 125.475(1).

K.

The conservator must maintain vouchers for one year after the order approving the final accounting. ORS 125.475(3).

L.

The conservator must file federal and state income tax returns on behalf of the protected person. IRC §6012(B)(2).

(§43.6)

References

See generally GUARDIANSHIPS, CONSERVATORSHIPS, AND TRANSFERS TO MINORS (Oregon CLE 2000).

INDEMNITY I.

(§44.1)

A common-law action for indemnity sounds in contract and must be commenced within six years. The statute of limitations starts to run from the date of payment made by the indemnitee. ORS 12.080(1); Huff v. Shiomi, 73 Or App 605, 699 P2d 1178 (1985); Owings v.

Rosé, 262 Or 247, 497 P2d 1183 (1972).

II.

(§44.2)

When parties make an express and enforceable contract of indemnity, the contract’s terms will control and will supercede a claim based on the common-law right to indemnity. Southern Pacific Co. v. Morrison-Knudsen Co., 216 Or 398, 338 P2d 665 (1959).

When an indemnity provision in an express contract provided that notice of the indemnity claim must be delivered within a certain time

89

INSURANCE / §45.1

period, an indemnity claim delivered after the time period had run was contractually barred. Southwest Forest Industries, Inc. v.

Vanply, Inc., 43 Or App 347, 357, 602, P2d 1113 (1979).

III.

(§44.3)

See also CONTRIBUTION. INSURANCE

I.

(§45.1) A.

An advance payment means “compensation for the injury or death of a person or the injury or destruction of property prior to the determination of legal liability therefor.” ORS 18.500. Advance payments for death, injury, or property damage do not constitute “an admission of liability for the [death, injury, or destruction] by the person making the payment unless the parties to the payment agree to the contrary in writing.”

ORS 18.520(1) (death or personal injury); ORS 18.530 (property damage).

B.

If a “person” making an advance payment under ORS 18.520 or ORS 18.530 for “death, injury or destruction” provides written notice within 30 days after the first advance payment was made of the date of expiration of the applicable statute of limitations, that statute continues to run. ORS 12.155(1).

•

90

Advance Payments (See 2007 Addendum inside front cover of book)

If the required notice is not given, the statute of limitations is tolled as of the time the advance payment is made and until the notice “is actually given.” ORS 12.155(2) (“the time between the date the first advance payment was made and the date a notice is actually given . . . is not part of the period limited for commencement of the action by the statute of limitations”); Baker v. Kennedy, 317 Or 372, 856 P2d 314 (1993).

C.

ORS 12.155(2) tolls the applicable statute of limitations only in the context of liability insurers and third-party claimants. ORS 12.155(2) does not apply in the context of first-party insurance, such as property insurance. Minisce v. Thompson, 149 Or App 746, 754-755, 945 P2d 582 (1997).

D.

The advance payment statutes (ORS 18.500-18.530) and ORS 12.155 have a twofold purpose. One purpose is to permit an insurer to make advance payments without admitting liability and to encourage such payments. The other purpose is “to protect an injured party from being misled into believing that a limitation period upon his claim is no longer applicable because the insurer has, in effect, acknowledged that its

INSURANCE / §45.2

insured is liable for the claim.” Duncan v. Dubin, 276 Or 631, 636, 556 P2d 105 (1976).

E.

II.

Statutes of limitations apply to the “commencement” of legal actions.

The commencement of a legal action includes both filing and service on the defendant. Baker v. Kennedy, 317 Or 372, 376, 856 P2d 314 (1993).

An action is considered to have been commenced on the day of filing, but only if the defendant is properly served no more than 60 days after the filing of the suit. See ORS 12.020(2).

•

When a third-party claimant is represented by counsel, who files suit and properly serves the defendant within the applicable limitations period, ORS 12.155(2) does not toll the limitations statute even when statutory notice is not given by the insurer. Baker v. Kennedy, supra; Dotson v. Smith, 307 Or 132, 764 P2d 540 (1988). Because the purpose of ORS 12.155 is, in part, “to protect a person from being ‘lulled’ into falsely believing there is no limitation on when he can commence an action,” Duncan v. Dubin, 276 Or 631, 637, 556 P2d 105 (1976), requiring notice when a claimant’s attorney files a claim and serves the defendant within the statute of limitations “would be irrelevant, if not absurd.” Dotson v. Smith, supra, 307 Or at 139.

•

However, when the insurer does not provide statutory notice and the claimant’s attorney files suit within the applicable limitations period, but does not serve the defendant until after the limitations period expires, and more than 60 days after filing as required under ORS 12.020(2), ORS 12.155(2) tolls the applicable statute of limitations.

The applicable limitations statute is tolled from the day the claimant receives the advance payment until service is completed, i.e., the day the action is deemed to have been commenced. Baker, supra.

F.

Advance payment to a minor does not toll the two-year statute of limitations provided for under the Oregon Tort Claims Act (ORS 30.275(9)). Lawson v. Coos Co. Sch. Dist. # 13, 94 Or App 387, 765 P2d 829 (1988).

G.

The 30-day notice requirement under ORS 12.155 does not extend to PIP benefits. Smith v. Riker, 88 Or App 579, 746 P2d 247 (1987)

(§45.2)

Uninsured Motorist Coverage

The 1997 Oregon Legislature substantially revised the statute-of-limitations provisions that may be included in uninsured motorist coverage. The statute now provides that no cause of action will accrue to the insured under such coverage unless, within two years from the date of the accident, (1) there is agreement on the amount due under the policy; (2) the insured or the insurer has “formally instituted” arbitration proceedings; (3) the insured has filed an

91

INSURANCE / §45.6

action against the insurer; or (4) a bodily injury suit has been filed against the uninsured motorist and “within two years from the date of settlement or final judgment against the uninsured motorist, the insured has formally instituted arbitration proceedings or filed an action against the insurer in a court of competent jurisdiction.” ORS 742.504(12)(a).

III.

(§45.3)

Life Insurance

A life insurance policy may not contain a provision that an action on the policy be commenced less than three years after the cause of action accrues.

ORS 743.225(1).

IV.

(§45.4)

Health Insurance

A health insurance policy must contain a provision requiring that the insured furnish a written proof of loss to the insurer under certain conditions.

ORS 743.429. A health insurance policy must further include a provision stating that no action can be brought to recover on the policy until 60 days after the written proof of loss is furnished to the insurer, and no action can be brought more than three years after the written proof of loss must be furnished by the insured. ORS 743.441.

V.

(§45.5)

Fire Insurance

The insured must give immediate written notice to the insurer of any loss, and, within 90 days after receipt of proof-of-loss forms from the insurer, the insured must submit the completed forms, signed and sworn, to the insurer.

ORS 742.230.

VI.

•

The amount of loss will be payable within 60 days after the proof-of-loss forms are received by the insurer and ascertainment of loss is made by written agreement between the insured and the insurer or by filing an award with the insurer. ORS 742.238.

•

An action on a fire policy for recovery of a claim must be “commenced within 24 months next after inception of the loss.” ORS 742.240.

•

The statutory limitation for filing suit in a fire policy is a contract condition, not a statute of limitations for purposes of ORS 12.155. Ben Rybke Co. v.

Royal Globe Insurance Co., 293 Or 513, 651 P2d 138 (1982); Herman v.

Valley Ins. Co., 145 Or App 124, 928 P2d 985 (1996).

(§45.6)

Attorney Fees

For all insurance policies delivered or issued in Oregon (other than reinsurance and wet marine and transportation insurance policies, see ORS 742.001), when no settlement is made within six months from the date the insured files a proof of loss with the insurer, and an action is brought, reasonable attorney fees will be awarded if the insured’s recovery exceeds the amount of any tender made by the insurer. ORS 742.061(1).

92

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS / §46.1

ORS 742.061(2) and (3) provide that the above requirements do not apply to actions to recover personal injury protection (PIP) benefits or uninsured or underinsured motorist (UM/UIM) benefits if, in writing and not later than six months from the date the insured files proof of loss with the insurer: (1) the insurer has accepted coverage and the only issues are the amount of PIP benefits due the insured or the liability of the UM/UIM motorist and the UM/UIM damages due the insured and (2) the insurer has consented to submit the case to binding arbitration.

Plaintiffs are entitled to attorney fees if their recovery exceeds the amount of any “timely” tender made by the insurer. Dockins v. State Farm Ins. Co., 329 Or 20, 985 P2d 796 (1999). The court in Dockins held that the six-month requirement applied to the insurer, not to the insured, and adopted a liberal standard for the term proof of loss notwithstanding more formal proof-of-loss requirements in the policy itself. Cf. Mosley v. Allstate Ins. Co., 165 Or App 304, 310-11, 996 P2d 513 (2000).

VII.

(§45.7)

References

See generally INSURANCE (Oregon CLE 1996 & Supp 1999).

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS I.

(§46.1)

Generally

A.

Single Act. An action for the intentional infliction of emotional distress, which is sometimes called “outrageous conduct,” must be commenced within two years of the date of injury. ORS 12.110(1). When a defendant engages in a course of conduct over a period of time that can produce cumulative compensable harm (i.e., emotional distress), but each act is discrete and produces compensable harm, evidence of those acts occurring before the two years preceding the filing of the complaint is barred by the statute of limitations. Davis v. Bostick, 282 Or 667, 673674, 580 P2d 544 (1978).

B.

Pattern of Conduct. However, when each of a defendant’s acts does not by itself support a claim, but the pattern of conduct eventually results in severe emotional distress to the plaintiff–a necessary element of the tort of the intentional infliction of emotional distress–the plaintiff’s claim accures at the time the plaintiff “in fact” suffers such distress. Barrington v. Sandberg, 164 Or App 202, 297, 991 P2d 1071 (1999). Under those circumstances, the defendant’s conduct constitutes a “continuing tort,” which is based on “the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.” Davis v. Bostick, supra, 282 Or at 671. When the continuing-tort doctrine applies, it “tolls the statute of limitations on 93

JUDGMENTS – TEXT SUPERCEDED – SEE PAGE 94 A / §48.1

otherwise actionable conduct until that conduct stops.” Barrington v.

Sandberg, supra, 164 Or App at 308 n 2 (Kistler, J., concurring).

II. (§46.2)

References

See generally 1 TORTS ch 3 (Oregon CLE 1992 & Supp 2000); 1 DAMAGES ch 5 (Oregon CLE 1998 and Supp 2002); LABOR AND EMPLOYMENT LAW: PRIVATE SECTOR ch 1 (Oregon CLE 2002).

INTENTIONAL INTERFERENCE I.

(§47.1)

An action for intentional interference with contractual relations must be commenced within two years after the date the damages actually accrue, not within two years after the date of discovery of the interference. Cramer v. Stonebridge Inn, 77 Or App 407, 713 P2d 645 (1986).

II.

(§47.2)

The cause of action accrues when the plaintiff is damaged beyond the fact of the interference itself. United Employer v. Dept. of Ins. and Finance, 133 Or App 477, 892 P2d 722 (1995).

III.

(§47.3)

See generally 2 TORTS ch 24 (Oregon CLE 1992 & Supp 2000); 1 DAMAGES ch 17 (Oregon CLE 1998 & Supp 2002).

JUDGMENTS – TEXT SUPERCEDED – SEE PAGE 94 A I.

(§48.1) A.

94

Liens – SEE PAGE 94 A

A judgment is a lien on the real property of the judgment debtor in the county in which the judgment is taken from the date the judgment is docketed. ORS 18.350(1).

•

To perfect a lien against a judgment debtor’s real property, a judgment creditor must record a certified copy of the judgment or a lien record abstract in any county other than the county in which the judgment was entered. ORS 18.320(2). ORS 18.325 contains a form of lien record abstract.

•

A lien for child or spousal support arises by operation of law on entry of a judgment encumbering all personal property of the debtor in Oregon. ORS 25.670(1). The judgment creditor must file a certified copy of the judgment or a lien record abstract in the county in which the judgment debtor resides or in which the personal property is located. ORS 25.670(2). A written notice of claim of lien must be filed with certain specific information. ORS 25.670(2)(a). The lien expires after five years if no expiration date is provided.

§48.1 AND §48.4 TEXT IS SUPERCEDED – SEE PAGE 94 A

JUDGMENTS The Judgment chapter (Chapter 18) of the Oregon Revised Statutes was substantially changed during the 2003 and 2005 legislative sessions. In 2003, HB 2646 (ch 576) was enacted to revamp the statutes on judgments. In 2005, SB 920 (ch 542) was enacted to further clarify and update the statutes. As a consequence, the text of this book references statutes that appear to have been repealed when a conversion to the new statute is all that is required. At other times, the text no longer correctly states the law. ยง48.1 Liens The following conversion table will guide you to some of the new sections: Section Referenced in Book 18.350(1) 18.320(2) 18.325 18.320(3) 18.360 18.360(3) 18.360(2) 23.280(1)(d)

New ORS Section 18.150(2) 18.152(1) 18.170 18.152(3) 18.180 18.180(7) 18.180(4) 18.412

Take note that certain provisions of the Oregon Revised Statutes have been completely rewritten and the original text of this book no longer correctly states the law in Oregon. In particular, practitioners should carefully review Chapter 18 provisions regarding child or spousal support judgments rather than rely upon this text. See ORS 18.158, 18.170(2), 18.180(2) & (5), 18.182(7), 18.185, 18.190, and 18.192. ยง48.4 Execution and Redemption The following conversion table will guide you to some of the new sections: Section Referenced in Book 23.490(1) 23.560(1) 23.540 23.550

New ORS Section 18.948(1) 18.964 18.964(2) 18.964(3)

Note that ยง48.4.C. no longer states the law in Oregon.

PAGE 94 A

JUDGMENTS – TEXT SUPERCEDED – SEE PAGE 94 A / §48.2

•

B.

II.

An out-of-state judgment for overdue payments under a support order becomes a lien on real property in the county in which the obligor owns property when the support order is recorded and served as required by ORS 18.320(3) and ORS 18.325.

A judgement lien expires 10 years after the judgment is docketed, except judgments for child support and those arising from criminal actions. The lien may be extended for 10 years on motion filed before the first 10year limit expires. The renewed judgment and lien expire 10 years after the renewed judgment is entered. ORS 18.360.

•

A judgment arising under ORS 107.105(1)(f) (dissolution proceedings) that provides for the future payment of money which does not become due for more than 10 years after the judgment is entered does not expire until 10 years after the payment first becomes due. ORS 18.360(3).

•

Criminal judgments are enforceable for 20 years from entry and are not renewable. ORS 18.360(2).

•

A judgment lien recorded in other counties expires 10 years from the date that the judgment was docketed in the county in which the judgment was taken. ORS 18.360.

•

A judgment creditor must cause the renewed judgment to be recorded in the lien record of counties other than the county in which it is renewed. ORS 18.360.

•

A lien on a renewed judgment recorded in other counties expires 10 years after the date of renewal of the judgment in the county in which the judgment was originally docketed. ORS 18.360.

C.

A judgment for child support that is entered on or after January 1, 1994, continues to be a lien on real property for a period of 25 years from the date that the judgment is entered and docketed. ORS 25.700(1). These judgments may not be renewed. ORS 25.700(1). Judgments for child support entered before January 1, 1994, are enforceable for 10 years with one 10-year renewal period if renewed in accordance with ORS 18.360.

ORS 25.700(2).

D.

On sale of property subject to a judgment lien, a judgment creditor must file an objection to the discharge of a judgment lien against a homestead claimant and request a hearing not less than 14 days after the date of mailing the notice of intent to effect discharge from the judgment lien.

ORS 23.280(1)(d).

(§48.2)

Default Judgment

§48.1 AND §48.4 TEXT IS SUPERCEDED – SEE PAGE 94 A

95

JUDGMENTS – TEXT SUPERCEDED – SEE PAGE 94 A / §48.3

III.

A.

A party seeking an order of default must serve the party against whom a default is sought with written notice of the application for an order of default at least 10 days before entry of the order when the party to be defaulted has appeared or has given notice of intent to file an appearance. ORCP 69 A(1). The notice of application for an order of default should be filed with the court.

B.

If the party against whom the order of default is sought has not appeared, the party seeking relief may apply to the clerk or court for a default judgment any time after the time to answer or appear has expired. ORCP 69 A(1).

C.

The party seeking to have the default set aside must simultaneously file a responsive pleading or the court cannot consider the motion to set aside the default judgment. Duvall v. McLeod, 331 Or 675, 21 P3d 88 (2001).

(§48.3) A.

96

Relief

Under ORCP 71 B, a judgment may be set aside by motion made within a reasonable time, made up to one year after the moving party has notice of the judgment, and made when the moving party is seeking relief from the judgment based on the following: •

Mistake, inadvertence, surprise, or excusable neglect;

•

Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under ORCP 64 F; or

•

Fraud, misrepresentation, or other misconduct of an adverse party.

See Severson v. Youngdahl, 102 Or App 54, 792 P2d 482 (1990).

B.

To be entitled to set aside the default, the defaulted party must establish that (1) the failure to appear was the result of excusable mistake, inadvertence, surprise, or neglect; (2) an action to set aside the judgment was filed within a “reasonable time”; and (3) the party has a meritorious defense. ORCP 71 B; National Mortgage Co. v. Robert C. Wyatt, Inc., 173 Or App 16, 20 P3d 216, rev den, 332 Or 430 (2001) (mental illness of sole shareholder may establish excusable neglect for corporation).

C.

Excusable neglect may occur when a corporation’s registered agent was personally served and gave the summons and complaint to a subordinate with instructions to send it to their insurance company, but that subordinate failed to do so. Woods v. James W. Fowler Co., 168 Or App 308, 313, 7 P3d 577 (2000).

D.

When the defaulting party has been personally served, the required proof to establish excusable neglect or other cause for relief is greater than when service has been achieved by mail or some other means. Compare Pacheco v. Blatchford, 91 Or App 390, 754 P2d 1219 (1988) (motion

§48.1 AND §48.4 TEXT IS SUPERCEDED – SEE PAGE 94 A

JUSTICE COURTS / §49.1

denied when personal service and failure to take action), with Hiatt v.

Congoleum Indus., Inc., 279 Or 569, 569 P2d 567 (1977) (motion granted when plaintiff sent copy of summons and complaint via certified mail, which mailroom clerk received and lost).

IV.

(§48.4) A.

Execution and Redemption – SEE PAGE 94 A

A plaintiff is entitled to an order confirming an execution sale of real property by filing a motion after waiting 10 days following the sale unless an objection is filed within that time. ORS 23.490(1).

•

The judgment debtor must object to confirmation of the sale within 10 days after the return of execution. ORS 23.490(1).

B.

A mortgagor, judgment debtor, or successor may redeem real property within 180 days after the date of a judicial sale from the purchaser or from any judgment lien creditor redemptioner. ORS 23.560(1); Duree v.

Blair, 179 Or App 534, 40 P3d 540 (2002).

C.

If the judgment debtor transferred its interest in the real property, and the proceeds of sale are insufficient to satisfy the judgment, the judgment debtor has 10 days after the expiration of the 180-day redemption period to redeem. ORS 23.560(1).

D.

A lien creditor may redeem real property within 60 days of the date of sale or within 60 days of an order confirming a sale when objections to the sale have been filed. ORS 23.540.

E.

Once a lien creditor has redeemed property, any other creditor may redeem the property from the prior redemptioner within 60 days from the last redemption. ORS 23.550. This scenario may result in a series of redemptions.

JUSTICE COURTS

I.

(§49.1)

Pleadings

A.

Unless otherwise specifically provided by statute, the rules of pleadings, procedure, and evidence in justice courts are governed by the rules for civil actions in circuit court. ORS 52.010-52.030, 52.310.

B.

The defendant must answer within 30 days from date of service.

ORCP 7 C (2); ORS 52.110(1).

C.

If the defendant files a counterclaim exceeding jurisdictional limits, the justice court will transfer the claim to circuit court (by filing a transcript) within 10 days after the answer is filed. ORS 52.320.

•

The plaintiff must move against a reply or counterclaim within 10 days after the transcript is filed in circuit court. The defendant is

§48.1 AND §48.4 TEXT IS SUPERCEDED – SEE PAGE 94 A

97

JUSTICE COURTS / §49.5

responsible for all costs incurred in transferring the case. If the costs are not paid when the counterclaim is filed or within two days after it is filed, the claim will not be transferred, and the justice of the peace will disregard the counterclaim and proceed to try the cause as though the counterclaim had never been filed. ORS 52.320.

D.

II.

Cases pending in which no proceeding has been had or paper filed for more than a year are dismissed for lack of prosecution. ORS 52.035.

After the case is inactive for over a year, the court must send notice that the case will be dismissed 60 days from the date that the notice is mailed unless good cause is shown why the case should be continued.

ORS 52.035.

(§49.2)

Jury Trial

The trial fee in justice court must be paid when the demand for jury is made and, if not so paid, the demand for jury is disregarded and the trial proceeds as if no demand had been made. ORS 52.410-52.420.

III.

(§49.3)

Change of Venue

A change of venue may be requested only after the cause is at issue on a question of fact. All costs incurred in the transfer of the cause are borne by the party who requested the change and must be tendered when the motion for change of venue is filed. ORS 52.530(3). If the party fails to tender the required fee when the motion is filed, the justice is directed to disregard the motion and proceed to try the action as though no motion had been filed. ORS 52.530(3).

IV.

V.

(§49.4) A.

When a justice court judgment is docketed in circuit court, it expires 10 years from the date of original entry in the justice court. ORS 52.635.

B.

A writ of execution issued by a justice must be made returnable within 30 days from the date thereof. At any time before the writ expires, the writ of execution may be renewed by obtaining the endorsement of the justice on the writ. The endorsement must be dated and, if any part of the execution has been satisfied, it must state the amount then due. An entry of the renewal must also be made in the docket of the justice.

ORS 52.700-52.710.

C.

Unless otherwise specified by statute, the provisions for proceedings in the circuit courts on attachment and delivery of personal property govern in similar cases in justice court. ORS 52.220. See ATTACHMENT.

(§49.5) A.

98

Judgments

Appeals

An appeal to circuit court, ORS 53.020, is taken by serving a written notice of appeal on the adverse party within 30 days after “rendition” of

LACHES / §50.2

the judgment, and filing the original notice with proof of service in the court. ORS 53.030. “Rendition” of judgment means the date of entry in the docket. Furlong v. Tish, 189 Or 86, 218 P2d 476 (1950).

B.

An undertaking for costs and disbursements on appeal must be filed within five days after the notice of appeal is “given or filed.”

ORS 53.040, 53.030. The failure to timely file an undertaking is no longer jurisdictional, but may be waived only on a showing of good cause for the failure. ORS 53.040.

C.

A respondent can enforce the judgment notwithstanding an appeal if the respondent serves an undertaking for restitution within five days from the date that the appeal is allowed. ORS 53.080.

D.

Within 30 days after the allowance of the appeal, the appellant must file a transcript of the cause with the clerk of the appellate court. The circuit court may extend the time for filing the transcript, but the order must be made within the time allowed for filing the transcript. ORS 53.090.

E.

See also WRITS. LACHES

I.

(§50.1) A.

B.

II.

Laches is an equitable doctrine and has three distinct elements: •

The plaintiff must delay in asserting his or her rights for an unreasonable length of time;

•

The plaintiff has full knowledge or is chargeable with knowledge that might have been obtained on inquiry if the plaintiff had knowledge of facts which would have put a duty to inquire on a person of ordinary intelligence; and

•

The delay results in such substantial prejudice to the defendant that it would be inequitable for the court to grant relief. Rise v. Steckel, 59 Or App 675, 652 P2d 364 (1982).

An analogous statute of limitations may be used to define a presumptively reasonable period within which a party is not guilty of laches in initiating an action in equity. The plaintiff has the burden of disproving laches after the statutory period. Oregon State Bar v. Wright, 309 Or 37, 785 P2d 340 (1990).

(§50.2) A.

Definition

Applicability

Laches does not start to run until knowledge is shown to exist. Albino v.

Albino, 279 Or 537, 568 P2d 1344 (1977).

99

LANDLORD – TENANT / §51.1

III.

B.

A plaintiff’s cause may be foreclosed by laches even though the applicable statute of limitations has not run if substantial prejudice to the defendant’s position has resulted from the plaintiff’s delay. Woodriff v.

Ashcraft, 263 Or 547, 503 P2d 472 (1972).

C.

Laches applies only in equity and not to actions at law. Corvallis Sand & Gravel v. Land Board, 250 Or 319, 439 P2d 575 (1968).

D.

Although equity is supposedly not bound by limitations statutes, the statutes are generally applied by analogy if laches is asserted. Rise v.

Steckel, 59 Or App 675, 652 P2d 364 (1982).

E.

The doctrine is not applicable against the state or federal government unless appearance by the government is made by a private relator.

Corvallis Sand & Gravel v. Land Board, supra.

F.

If the action is brought within the analogous statute of limitations, the burden is on the defendant to plead and prove laches. If the statute of limitations has run, the burden is on the plaintiff to plead and prove that laches does not exist. Albino v. Albino, supra.

(§50.3)

References

See generally CONTRACT LAW IN OREGON ch 10 (Oregon CLE 1991 & Supp 1999).

LANDLORD – TENANT I.

(§51.1) A.

An action arising under a rental agreement for a dwelling unit must be commenced within one year. ORS 12.125, 90.100-90.875.

B.

The RLTA one-year statute governs only landlord-tenant disputes concerning residential tenancies. ORS 90.110 specifically excludes certain residential occupancies from the RLTA.

C.

Actions for the tort of waste may not be subject to the RLTA one-year limitation: •

100

Residential Landlord and Tenant Act (RLTA)

A non-residential month-to-month tenancy is a “tenancy for years” within the waste statute (ORS 105.805). Vollertsen v. Lamb, 302 Or 489, 732 P2d 486 (1987). Although Vollertsen expressly declined to rule on whether a common-law action for waste by a residential landlord would survive the RLTA, the court did conclude that statutory tort claims like waste could be alleged independent of RLTA. An action for waste, trespass, or interference with or injury to any interest of another in real property must be commenced within six years. ORS 12.080(3).

LANDLORD – TENANT / §51.1

D.

A tort action brought by a tenant who suffers personal injury due to defects on the rental premises is not subject to the one-year limitation of ORS 12.125 applicable to claims under the rental agreement. Jones v.

Bierek, 88 Or App 11, 743 P2d 1153 (1987), aff’d, 306 Or 42 (1988). A tort action must be commenced within two years from the date of injury.

ORS 12.110.

E.

An eviction action for possession of a residential rental premises covered by the RLTA (previously titled a forcible entry and unlawful detainer, or FED) requires effective service of a valid written termination notice.

ORS 90.400, 90.427, 91.110, 105.115(2), 105.120. The calculation of notice periods is set forth in ORS 90.160.

•

Timely notice may be as short as one day or as long as one year. For example, a 24-hour notice can be used for various causes including serious personal injury, substantial damage, or extremely outrageous conduct. ORS 90.400(3)-(8). Closure of a manufactured dwelling or floating home facility requires 365 days’ notice. ORS 90.630. Some other notices include: •

A periodic tenancy may be terminated on 30 days’ notice in a month-to-month tenancy, ORS 90.427(2), and 10 days’ notice in a week-to-week tenancy, ORS 90.427(1).

•

If there is material noncompliance with the rental agreement by a tenant, the landlord may deliver a 30-day notice for cause that terminates the tenancy unless the tenant cures the breach within 14 days. For a repeated “cause” within six months, the landlord may terminate the tenancy with 10 days’ notice. ORS 90.400(1).

For a week-to-week tenancy, the “for cause” notice period is seven days rather than 30, and the cure period is four days. For a repeated “cause” within six months, the landlord may terminate a week-to-week tenancy with four days’ notice. ORS 90.400(1)(e).

•

Nonpayment of rent allows a landlord immediately to terminate a tenancy on 72 hours’ notice given no sooner than the eighth day of the rental period or 144 hours’ notice given no sooner than the fifth day. The notices must specify the date and time by which the tenant in default of rent may cure the nonpayment. ORS 90.400(2).

•

If a tenant violates the rental agreement by keeping a pet capable of causing damage to persons or property, the landlord may deliver a notice that terminates the tenancy in 10 days unless the tenant removes the pet. ORS 90.405.

101

LANDLORD – TENANT / §51.1

F.

102

•

Residential tenancies for a fixed term and certain subsidized tenancies may be terminated early only for cause. ORS 90.40090.405.

•

If a tenant of drug-and-alcohol-free housing (as defined in ORS 90.243) with less than two years’ residency violates the drug and alcohol rules, the landlord may give 48 hours’ notice with a 24hour opportunity to cure. A subsequent violation within six months provides grounds for a 24-hour termination notice with no opportunity to cure. ORS 90.400(a).

•

Manufactured dwelling and floating home tenancies in a facility may be terminated by the landlord only for cause, ORS 90.380(5)(b), 90.400(2), (3), (4), 90.630, 90.632, or when the facility closes, ORS 90.630(5). Manufactured dwelling and floating home tenancies not in a facility may be terminated by a landlord without cause specified in ORS 90.400 only by delivery of 180 days’ notice. ORS 90.429.

•

A landlord may claim from prepaid rent or a security deposit only the amount reasonably necessary to remedy the tenant’s defaults under the rental agreement, not including ordinary wear and tear. ORS 90.300(4)-(5). To claim all or part of any deposit, the landlord must give a specific written accounting to the tenant within 31 days after the tenancy terminates. ORS 90.300(10).

The rights and responsibilities of tenants and landlords in disposing of a tenant’s abandoned personal property are set forth in ORS 90.425: •

A landlord, after proper notice, may store, sell, or dispose of a tenant’s personal property left on the property when a tenancy has ended because (1) the rental agreement has terminated or expired; (2) the tenant has abandoned or surrendered the premises and left property there; or (3) the tenant has been absent from the property continuously for seven days after the tenancy was terminated by a court order that has not been executed. ORS 90.425(2).

•

A landlord may dispose of a tenant’s abandoned property only if the landlord gives a written notice of a specified date for disposal. ORS 90.425(2)-(5). If the abandoned property is a recreational vehicle, manufactured dwelling, or floating home, a copy of the notice must also be given to any lienholder or owner and the tax collector and assessor of the county where the home is located. ORS 90.425(4).

The notice must specify a date by which the tenant must contact the landlord to arrange for disposition of the tenant’s property. For most personal property, the date is five days after personal delivery of the

LANDLORD – TENANT / §51.3

notice or eight days after first-class mailing of the notice. If the abandoned property is a recreational vehicle, manufactured dwelling, or floating home the tenant has at least 45 days to contact the landlord. ORS 90.425(6).

II.

III.

•

If the tenant fails to contact the landlord by the specified date and fails to remove the property within 15 days of the date specified in the notice (30 days for a recreational vehicle, manufactured dwelling, or floating home), the landlord may sell or dispose of the property.

ORS 90.425(8)-(22).

•

If the tenant responds by actual notice to the landlord, on or before the date specified in the landlord’s notice, that the tenant intends to remove his or her personal property, then the landlord must make the property available for removal during the next 15 days (30 days for a recreational vehicle, manufactured dwelling, or floating home).

ORS 90.425(8).

(§51.2)

Tenancies Not Subject to the Residential Landlord-Tenant Act

A.

No notice is necessary to terminate a non-residential tenancy at sufferance. ORS 91.040.

B.

A lease at will, payable at intervals of less than three months, can be terminated by giving written notice equal to the time between rental payments. ORS 91.050.

C.

A tenancy from year-to-year may be terminated by giving written notice 60 days before the expiration of the period for which rents are to be paid.

ORS 91.060.

D.

A month-to-month tenancy may be terminated by giving at least 30 days’ written notice before the date designated in the notice for the termination of tenancy regardless of the expiration of the period for payment of rents.

ORS 91.070.

E.

Failure to pay rent for a period of 10 days terminates the tenancy without notice unless a different period is stipulated in the lease. ORS 91.090.

Accepting payment after the termination reinstates the lease for the full period. ORS 91.090.

(§51.3) A.

Unlawful Discrimination in Housing

An action for unlawful discrimination in selling, leasing, or renting housing on the basis of disability, ORS 659A.145, or on the basis of race, color, sex, marital status, source of income, familial status, religion, or national origin, ORS 659A.421, must be commenced not later than two years after the occurrence or the termination. ORS 659A.875(3).

103

LEGAL MALPRACTICE / §52.1

IV.

B.

The notice of claim required under ORS 30.275 must be given in any civil action alleging unlawful discrimination under ORS 659A.885 against a public body, or any officer, employee, or agent within 180 days. ORS 659A.875(4).

C.

A person aggrieved by an unlawful practice, including discrimination in housing, may file a written, verified complaint with the Commissioner of the Bureau of Labor not later than one year after the unlawful practice.

ORS 659A.820. The two-year period within which a civil action may be filed does not include any time during which an administrative proceeding was pending with respect to the unlawful practice. ORS 659A.875(3).

D.

Federal Law. Generally, a complaint alleging violations of the federal Fair Housing Act (FHA), must be commenced not later than two years after the occurrence or termination of an alleged discriminatory housing practice. 42 U.S.C. §§ 3613(a)(1)(A). The computation of the two-year period does not include any time during which an administrative proceeding was pending with respect to a complaint or charge based upon such discriminatory housing practice. 42 U.S.C. §§ 3613(a)(1)(B).

See CIVIL RIGHTS.

(§51.4)

Trust Deed Foreclosure

A beneficiary under a trust deed must give a tenant 30 days’ written notice, served by first-class mail, before taking possession of the premises. The notice cannot be served earlier than 30 days before the first date of the trustee’s sale.

ORS 86.755(5).

V.

(§51.5)

References

See generally REAL ESTATE DISPUTES ch 3 (Oregon CLE 1993 & Supp 2002); Robert G. Schwemm, HOUSING DISCRIMINATION (Clark, Boardman, Callaghan 1990 with supplements).

LEGAL MALPRACTICE I.

(§52.1) A.

104

Generally

An action for legal malpractice is an action in tort that must be commenced within two years from the date that the cause of action accrues. ORS 12.110(1); U.S. Nat’l Bank v. Davies, 274 Or 663, 548 P2d 966 (1976).

LEGAL MALPRACTICE / §52.2

B.

II.

The 10-year statute of ultimate repose applies to legal malpractice claims. ORS 12.155; Davis v. Somers, 140 Or App 567, 915 P2d 1047 (1996); Withers v. Milbank, 67 Or App 475, 678 P2d 770 (1984).

(§52.2)

Accrual of Cause of Action

A.

The statute of limitations begins to run when harm occurs and it is reasonably probable that the damage complained of was caused by the defendant’s negligence. Melgard v. Hanna, 45 Or App 133, 607 P2d 795 (1980).

B.

The statute of limitations does not begin to run until the plaintiff incurs harm and until it appears probable that the harm actually suffered was caused by the defendant. U.S. Nat’l Bank v. Davies, 274 Or 663, 548 P2d 966 (1976).

C.

When there was a continuing attorney-client relationship and the attorney reassured the client concerning the cause of a bad result in bankruptcy, there was a genuine issue of a fact regarding when the client knew or should have known his damages were caused by the attorney’s negligence. Brownstein v. Pearson, 166 Or App 120, 997 P2d 300 (2000). See Hoeck v. Schwabe, Williamson & Wyatt, 149 Or App 607, 945 P2d 534 (1997).

D.

An alleged breach of a specific promise may support a contract claim, which would have a six-year statute of limitations. ORS 12.080. See Hale v. Groce, 304 Or 281, 744 P2d 1289 (1987); Allen v. Lawrence, 137 Or App 181, 903 P2d 919 (1995). See also, McComas v. Bocci, 166 Or App 150, 996 P2d 506 (2000) (promise or prediction of success made after creating contract for legal services and without new consideration is gratuitous and establishes no contractual duty).

E.

Assuming that the plaintiff has the requisite knowledge, the claim accrues (the statute begins to run) when the plaintiff has incurred some harm. The plaintiff need not be aware of the full extent of the harm nor must the harm be complete. Jaquith v. Ferris, 297 Or 783, 687 P2d 1083 (1984); Godfrey v. Bick & Monte, 77 Or App 429, 713 P2d 655 (1986).

F.

When there is a continuing attorney-client relationship, merely incurring additional legal expense may not constitute “some harm.” The statute of limitations does not begin to run until it appears reasonably probable that the cost of litigation was caused by the attorney’s negligence.

Niedermeyer v. Dusenberry, 275 Or 83, 549 P2d 1111 (1976).

G.

The discovery of negligence is an objective matter, and a client is charged with knowledge that the exercise of reasonable care would disclose when facts are known from which the inference flows.

Melgard v. Hanna, supra.

105

LEGAL MALPRACTICE / §52.3

III.

H.

The legal malpractice claim did not accrue until the supreme court issued its opinion on the underlying contract action because it was not until the supreme court reversed the court of appeals and concluded the entire case that the client could have known that his attorney’s advice was negligent. Fliegel v. Davis, 73 Or App 546, 699 P2d 674 (1985).

I.

When the alleged harm is based on the result of the underlying case, the claim accrues on entry of the adverse judgment, not on an order of dismissal. Barnard v. Lannan, 112 Or App 625, 829 P2d 723 (1992).

J.

A person convicted of a criminal offense who wishes to bring an action for professional negligence against that person’s criminal defense counsel must, in addition to alleging a duty, its breach, and causation, allege “harm” in that the person has since been exonerated of the criminal offense through reversal on direct appeal, through postconviction relief proceedings, or otherwise. Stevens v. Bispham, 316 Or 221, 238, 851 P2d 556 (1993); Sandgathe v. Jagger, 165 Or App 375, 996 P2d 1001 (2000).

(§52.3)

References

See generally THE ETHICAL OREGON LAWYER ch 19 (Oregon CLE 1991 & Supp 1998); 1 TORTS ch 11; 2 TORTS ch 31 (especially §31.43) (Oregon CLE 1992 & Supp 2000).

106

LOST AND UNCLAIMED PROPERTY / §53.2

LOST AND UNCLAIMED PROPERTY I.

(§53.1) A.

If a person finds goods or money valued at $100 or more, written notice must be given to the county clerk within 10 days after the date of finding. Within 20 days after the date of finding, the finder must publish a newspaper notice for two weeks. The finder becomes the owner if no response is received within three months after notice to the county clerk.

ORS 98.005.

B.

Failure to report the finding of money or goods valued at $100 or more to the county clerk will result in the finder’s liability, on conviction, to the county for the full value of the money or goods. The county will then publish notice of finding the money or goods in the manner provided in ORS 98.005. The money or goods will be forfeited to the county general fund if the owner does not reclaim the goods or money within three months after the date of the first publication of notice by the county.

ORS 98.015.

C.

Reporting. Every person holding funds or other property presumed abandoned under the statute must report to the Division of State Lands between October 1 and November 1 of each year for accounts dormant as of June 30. ORS 98.352(4).

D.

Statute of Limitations. The expiration of any statute of limitations or court order applicable to an action to obtain payment of a claim for money or recovery of property will not prevent the money or property from being presumed to be abandoned property, or affect any duty to file a report required by ORS 98.352, or affect the requirement to pay or deliver abandoned property to the Division of State Lands. ORS 98.376.

E.

Claim for Unclaimed Property. A claim for any unclaimed property delivered to the Division of State Lands may be filed at any time after the claimant learns that the property has been reported to the division.

ORS 98.392.

•

II.

Finder’s Duty

(§53.2) A.

A person who is aggrieved by the decision of the administrator regarding his or her claim must commence an action in an appropriate court to establish the claim within 60 days after the administrator’s decision or within 180 days after filing the claim if the administrator fails to act. ORS 98.402.

Bailment and Consignment

If personal property deposited with a consignee or bailee is not claimed and taken away within one year after the time it was received, the person

107

LOST AND UNCLAIMED PROPERTY / §53.3

having possession of the property may sell the property after giving at least 60 days’ notice of the sale to the owner of the property. If the name and address of the owner are not known, a notice must be published for six consecutive weeks in a newspaper in the county where the property was deposited or, if no county newspaper is available, the notice must be published at least 18 days before the time of sale. ORS 98.130-98.140.

B.

If the owner of the property does not take it away and pay the charges after the 60-day notice has been given, the person in possession of the property must make an affidavit describing the property and stating the dates it was received, the dates of notice, and whether the owner of the property is known or unknown. The affidavit must be delivered to the justice of the peace of the county where the property was deposited.

ORS 98.150.

•

C.

III.

Perishable property consigned or left as a bailment may be sold if not reclaimed within 30 days after it was deposited by giving 10 days’ notice of the sale. ORS 98.230.

(§53.3)

Banks and Instruments

A.

Intangible property held by a bank is presumed abandoned when the owner has failed to take certain action within five years. ORS 98.308.

B.

Except for traveler’s checks or money orders, any sum payable on a check, draft, or similar instrument on which the bank is directly liable, such as a cashier’s check or a certified check, is presumed abandoned if the instrument has been outstanding for more than five years after it was payable or issued, unless the owner has communicated in writing with the bank within five years regarding the instrument. ORS 98.308(6).

•

C.

108

The justice of the peace must have the property examined in his or her presence, must make an inventory of the property, and must give to the sheriff the inventory and an order to sell at public auction. The sheriff must give 10 days’ notice of the sale by posting written notices in three or more places in the district or county. ORS 98.16098.170.

Any sum payable on a traveler’s check that has been outstanding for more than 15 years after its issuance is presumed abandoned unless the owner has communicated in writing with the issuer concerning the traveler’s check within 15 years. ORS 98.309(1). For a money order, the time period is seven years. ORS 98.309(2).

Funds held or owing under any matured or terminated life or endowment insurance policies or annuity contracts are presumed abandoned if unclaimed for more than five years after the funds become due and payable, or if unclaimed for more than two years if the policy or contract

MEDIATION / §54.1

has not matured by actual proof of death of the insured or annuitant.

ORS 98.314.

IV.

D.

All intangible personal property distributable in the course of a dissolution of a business association, banking institution, or financial institution that is unclaimed by the owner for more than two years after the date for final distribution is presumed abandoned. ORS 98.326.

E.

All property held in a safe-deposit box in the ordinary course of business that is unclaimed for more than two years after the lease or rental period of the box has expired is presumed abandoned. ORS 98.328.

(§53.4)

Miscellaneous Property

A.

All intangible personal property and income held by a fiduciary is presumed abandoned unless the owner, within five years after the property or income becomes payable or distributable, accepts payment, increases or decreases the principal, or corresponds in writing with the fiduciary concerning the property, or otherwise indicates an interest in the property. ORS 98.332.

B.

Unpaid wages owing in the ordinary course of the holder’s business that remain unclaimed by the owner for more than three years after becoming payable are presumed abandoned. ORS 98.334.

C.

Intangible or tangible property held for the owner by a court, agency, or governmental subdivision that has remained unclaimed by the owner for more than two years is presumed abandoned. ORS 98.336.

D.

A credit memo that remains unclaimed by the owner for more than three years after becoming payable is presumed abandoned. ORS 98.338.

E.

All intangible personal property not otherwise designated by statute that is held in the ordinary course of the holder’s business and has remained unclaimed by the owner for more than three years after it became payable or distributable is presumed abandoned. ORS 98.342.

MEDIATION

I.

(§54.1)

Generally

A.

Referral. A circuit court judge may refer a civil dispute to mediation any time after the appearance of all the parties to the action. ORS 36.185.

B.

Stipulation. Parties may elect to mediate their civil dispute by filing a written stipulation of all parties at any time before trial. ORS 36.190(1).

C.

All trial and discovery timelines, schedules, and requirements are tolled and stayed as to the participants during the period of any referred or elected mediation. Tolling commences on the date of referral or election 109

MEDICAL AND DENTAL MALPRACTICE / ยง55.1

to mediate, and ends on the date that the court is notified in writing of the termination of the mediation by the mediator or ends on request by a party to return the case to the court docket. ORS 36.190(3).

II.

D.

Within 10 judicial days after mediation is complete, the mediator must notify the court of the outcome. ORS 36.195(5).

E.

The court retains jurisdiction of a case during mediation even though court timelines and schedules are stayed. ORS 36.195(6).

(ยง54.2)

References

See generally ARBITRATION AND MEDIATION (Oregon CLE 1996 & Supp 2001); THE ETHICAL OREGON LAWYER ch 13 (Oregon CLE 1991 & Supp 1998).

MEDICAL AND DENTAL MALPRACTICE I.

110

(ยง55.1)

General Rule

A.

Medical Negligence. An action to recover damages for injuries arising from any medical or dental treatment, omission, or operation must be commenced within two years from the date the injury was first discovered or reasonably should have been discovered. ORS 12.110(4); Asher v. Hald, 100 Or App 630, 788 P2d 468 (1990).

B.

Informed Consent. Failure to obtain informed consent of a patient, see ORS 677.097, may give rise to a separate cause of action. See Gaston v.

Parsons, 318 Or 247, 864 P2d 1319 (1994). This claim is subject to the limitations in ORS 12.110(4), although the time of discovery for a claim for medical negligence and a claim for informed consent may differ, depending on the facts and information available to the plaintiff.

Gaston v. Parsons, supra.

C.

Breast Implants. For death, injury, or damage resulting from breast implants, the action must be commenced within two years after the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the death, injury, or damage. ORS 12.276(1). However, an action against the physician or health care facility is subject to the limitations period in ORS 12.110(4), and an action against the person who supplied components to manufacturers is subject to ORS 12.110(1).

See also PRODUCTS LIABILITY.

D.

Public Bodies. For a claim against a public hospital or other person or entity entitled to tort claim protection, notice of the claim must be given pursuant to and within the time prescribed by ORS 30.275.

MEDICAL AND DENTAL MALPRACTICE / §55.2

E.

F.

II.

Ultimate Repose. The statute of repose is distinct from the statute of limitations. In any event, an action must be commenced within five years of the date of the treatment, omission, or operation on which the action is based. ORS 12.110(4); Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 455-456, 918 P2d 453 (1996), rev den, 329 Or 287 (1999).

•

If the plaintiff failed to bring a malpractice action within five years because of fraud, deceit, or misrepresentation made by the doctor, the action must be commenced within two years from the date that the fraud, deceit, or misrepresentation is discovered or, in the exercise of reasonable care, should have been discovered. ORS 12.110(4).

•

The five-year limitation also applies to minors. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988).

•

The five-year limitation applies even if the plaintiff’s action is based on misdiagnosis of a disease with a long latency period. Barke v.

Maeyens, 176 Or App 471, 31 P3d 1133 (2001), rev den, 333 Or 655 (2002).

Wrongful Death. If the alleged malpractice causes the death of a patient, the three-year wrongful death limitation (ORS 30.020(1)) applies, rather than the two-year personal injury limitation found in ORS 12.110(4).

Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979).

•

A wrongful death action must be commenced not later than the earlier of (1) three years after the death of the decedent or (2) the longest of any other period for commencing an action under an applicable statute of repose. ORS 30.020.

•

See also ULTIMATE REPOSE; WRONGFUL DEATH.

(§55.2) A.

Accrual of Cause of Action

Discovery Rule. The plaintiff “discovers” that he or she has a claim for malpractice when the plaintiff “knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.” Gaston v. Parsons, 318 Or 247, 256, 864 P2d 1319 (1994).

•

The general policy behind the “discovery rule” is to delay the running of the statute of limitations until the injured person knows or should have known that he or she has a cause of action so that the law does not strip the plaintiff of a remedy before he or she could know of the wrong. See ORS 12.110(4).

•

Commencement of the running of the statute of limitations is not delayed until the patient procures expert testimony to support a claim.

111

MEDICAL AND DENTAL MALPRACTICE / §55.4

Greene v. Legacy Emanuel Hosp. Health Care Center, 165 Or App 543, 549, 997 P2d 265 (2000), aff’d, 335 Or 115 (2002).

B.

An infant born brain-damaged because of a physician’s alleged negligence is not barred from bringing an action against the physician under the discovery rule because the knowledge of the infant’s mother is not imputed to the infant before the mother becomes the guardian ad litem. Banda v. Danner, 87 Or App 69, 741 P2d 514 (1987), aff’d, 307 Or 302 (1988). See Sherwood v. Finch, 2000 WL 1862562 (D Or, Dec 20, 2000) (No. CV-00-349-HU). But see Perez v. Bay Area Hospital, 315 Or 474, 482, 846 P2d 405 (1993) (270-day notice provision for minor’s claim under Tort Claims Act, ORS 30.275(2), is not tolled pending appointment of guardian ad litem).

C.

The five-year tolling statute (ORS 12.160) applied to an infant even though a conservator was appointed who commenced and thereafter voluntarily dismissed the first malpractice claim under ORCP 54 A(1); ORS 30.275(2); Luchini v. Harsany, 98 Or App 217, 779 P2d 1053 (1989).

•

III.

IV.

112

(§55.3)

See also STATUTE OF LIMITATIONS – TOLLING. Continuing Treatment

A.

When a physician treated a plaintiff for an eye disease from 1932 to 1939, the continued treatment based on a mistaken diagnosis constituted a continuing tort. The statute of limitations commenced to run when the treatment ceased. Shives v. Chamberlain, 168 Or 676, 126 P2d 28 (1942).

B.

When a dentist was negligent in only partially removing a wisdom tooth but continued to treat the plaintiff for more than a year without X-rays or discovering an infection, there was a continuing tort. The cause of action accrued and the statute of limitations started to run from the date of last treatment. Hotelling v. Walther, 169 Or 559, 130 P2d 944 (1942).

C.

The argument has been made that legislative adoption of the discovery rule in medical negligence cases has displaced the “continuing tort” analysis in actions for medical negligence. See, e.g., Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 455, 918 P2d 453 (1996), rev den, 329 Or 287 (1999). Although no court has squarely addressed this issue, adoption of this argument would mean that the statute of limitations runs from the date of discovery, regardless of the date on which the course of treatment terminated.

(§55.4)

References

MORTGAGES AND TRUST DEEDS / §57.1

See generally 1 TORTS ch 11, 2 TORTS ch 31 (Oregon CLE 1992 & Supp 1996); 1 OREGON HEALTH LAW MANUAL ch 3 (Oregon CLE 1997).

MISTAKE I.

(§56.1)

Generally

In an action on a mistake, the statute of limitations begins to run from the discovery of the mistake. ORS 12.040(4).

II.

(§56.2)

Application

A.

A party seeking rescission (cancellation) of a contract based on mistake “must act promptly to disaffirm the contract.” First West. Mortgage v.

Hotel Gearhart, 260 Or 196, 202, 488 P2d 450 (1971); Edwards v.

Wilcoxen, 278 Or 91, 562 P2d 1207 (1977). A party seeking rescission cannot “retain the fruits of the contract awaiting further developments to determine whether it will be more profitable for him to affirm or disaffirm it.” Edwards v. Wilcoxen, supra, 278 Or at 95.

B.

For reformation of a contract based on mistake, see REFORMATION OF CONTRACTS AND INSTRUMENTS. For relief from judgment due to mistake, see JUDGMENTS. MORTGAGES AND TRUST DEEDS

I.

(§57.1)

Generally

A.

A mortgage of real property creates a lien or encumbrance, and does not transfer title. ORS 86.010. A mortgage lien is enforced by a statutory foreclosure suit and subsequent sale conducted by the sheriff.

ORS 88.010. A trust deed is like a mortgage except that the security holder may foreclose on the security interest–the property–through a nonjudicial sale.

B.

Foreclosure of a trust deed by advertisement and sale or by judicial procedure must be commenced within the time, including extensions, allowed under ORS 88.110 and 88.120 for the foreclosure of a mortgage on real property. ORS 86.725.

C.

Foreclosure must be commenced within 10 years from the latest of (1) the date the mortgage debt matures, (2) the date the mortgage debt expires, or (3) the date to which the mortgage payment has been extended by agreement of record. ORS 88.110.

D.

After 10 years, the mortgage is conclusively presumed paid and discharged, and no suit may be maintained for its foreclosure.

ORS 88.110.

113

MORTGAGES AND TRUST DEEDS / §57.3

E.

If neither the date of maturity nor the term of the debt is disclosed by the recorded mortgage or recorded memorandum of mortgage, then the date that the recorded mortgage or recorded memorandum is executed is deemed to be the date of maturity and expiration. ORS 88.110.

F.

If the mortgage and a memorandum or memoranda thereof are recorded and no date of maturity or statement of the term of the mortgage is contained in the record, then the date of execution of the earliest recorded document is used to determine the date of maturity and the expiration of the term of the debt. ORS 88.110.

•

II.

III.

114

(§57.2)

See ORS 88.120 for when foreclosure is not barred by ORS 88.110.

Notice

A.

After recording a notice of default, but at least 120 days before the date that the sale is conducted, notice of the trustee’s or sheriff’s sale must be served pursuant to ORCP 7 D(2) and 7 D(3) or mailed by first-class and certified mail with return receipt requested to all parties listed in ORS 86.740(1)(a)-(d). ORS 86.740(1).

B.

Notice of the sale also must be served on the occupant of the property in the manner in which a summons is served, pursuant to ORCP 7 D(2) and 7 D(3), at least 120 days before the date that the sale is conducted.

ORS 86.750(1).

C.

Notice of sale also must be published in a newspaper of general circulation in each of the counties in which the property is situated, once a week for four successive weeks. The last publication must be made more than 20 days before the date that the sale is conducted.

ORS 86.750(2).

D.

On or before the date that the sale is conducted, an affidavit of mailing notice of sale, proof of service, and an affidavit of publication of notice of sale must be recorded in the county in which the property described in the deed is located. ORS 86.750(3).

(§57.3)

Cure and Redemption

A.

The default may be cured by the grantor, the grantor’s successor in interest, any beneficiary under a subordinate trust deed, or any person having a subordinate lien or encumbrance of record, at any time before five days before the date last set for the sale. ORS 86.753(1).

B.

In addition to paying the amount necessary to cure the default, the person curing must pay costs and expenses, and attorney fees and trustee fees as set forth in ORS 86.753(1)(a)-(b). ORS 86.753(1).

MOTOR VEHICLES / §58.1

C.

The mortgagor or judgment debtor whose right and title were foreclosed may redeem the property within 180 days after the date of sale.

ORS 23.560(1).

•

IV.

V.

See ORS 23.560-23.600 for the timing requirements and mode of redeeming.

D.

A lien creditor may redeem the property within 60 days from the date of the sale. If any objections to the sale are filed, a lien creditor may redeem within 60 days from the date of the order confirming the sale.

ORS 23.540.

E.

If the property is redeemed, any other lien creditor may redeem within 60 days from the last redemption by paying the sum paid on the last redemption plus interest at the rate of 10% per annum, together with any taxes and liens. ORS 23.550.

(§57.4)

Omitted Parties

A.

Any person entitled to notice of foreclosure by advertisement and sale under ORS 86.740(1)(c) who failed to receive the notice must either redeem or commence an action against the trustee within five years of the date of a trustee’s sale. ORS 86.742(6).

B.

The party bringing an action against the trustee or any other party due to failure to receive notice of the sale must plead that he or she did not have actual knowledge of the sale at least 25 days before the date that the trustee conducted the sale. ORS 86.742(4).

C.

As a general rule, the failure to join a necessary party defendant does not invalidate the subsequent mortgage foreclosure suit, but it leaves the unjoined party in the same position as if no foreclosure had occurred.

(§57.5)

References

See generally FORECLOSING SECURITY INTERESTS chs 1-3 (Oregon CLE 1997 & Supp 2001); CONSUMER LAW IN OREGON ch 12 (Oregon CLE 1996 & Supp 2001).

MOTOR VEHICLES I.

(§58.1) A.

Transfer of Title

Generally. Any person, other than a vehicle dealer, who receives title to a motor vehicle or any interest in a vehicle must present the certificate of title to the Driver and Motor Vehicle Services Division within 30 days after the transfer or may be required to pay a late presentation fee. ORS 803.105(1)(a).

115

MOTOR VEHICLES / §58.3

II.

B.

Dealer. A vehicle dealer must notify the division immediately on transfer of a vehicle to the dealer. ORS 803.105(1)(b).

C.

Lease. The lessor or holder of a vehicle under a lease must present the certificate of title to the division within 30 days of transfer.

ORS 803.105(1)(c). The lessor must deliver the certificate of title to the division within 30 days after the leasehold interest terminates. See the exception for commercial vehicles in ORS chapter 826.

ORS 803.105(1)(d).

(§58.2)

Records

See UNIFORM TRIAL COURT RULES. III.

(§58.3) A.

When a security interest in a vehicle is created with the owner or lessor in possession of a certificate of title, the owner or lessor must deliver the certificate to the person in whom the security interest is created.

ORS 803.105(1)(f).

•

B.

This statute does not apply if the debtor who grants the security interest is in the business of selling vehicles and the vehicle is inventory held for sale. ORS 803.105(1)(f).

If a security interest is created in a vehicle when a prior security interest holder is in possession of the certificate of title, the owner or lessor must provide for the delivery of the certificate of title to the person in whom the security is created, or arrange for the delivery of the certificates to the division by the prior security interest holder. ORS 803.105(1)(g).

•

This statute does not apply if the debtor who grants the security interest is in the business of selling vehicles and the vehicle is inventory held for sale. ORS 803.105(1)(g).

C.

The person in whom the security interest in a vehicle is created, and who receives a certificate of title indicating the grant of the security interest, must present a certificate of title to the division within 30 days after receiving the certificate. ORS 803.105(1)(h).

D.

Within 15 days of satisfaction of a security interest in a vehicle, the security interest holder must deliver the certificate, and the release contained on the certificate, to the next named security interest holder, or to the lessor; if there is no other security interest holder or lessor, the holder must deliver the certificate to the owner. ORS 803.105(1)(i)(A).

•

116

Security Interest

If the security interest holder is not in possession of the certificate, the holder must deliver a release of the security interest to the person entitled to a release. ORS 803.105(1)(i)(B).

PERSONAL INJURY / §59.1

IV.

V.

E.

The person who receives a release that is not accompanied by a certificate of title must promptly deliver the release to the holder of the certificate. ORS 803.105(1)(j). The holder of a certificate of title and release must present both to the division within 30 days after the date of the release if the security interest has been satisfied. ORS 803.105(1)(k).

(These statutes do not apply if the debtor who granted the security interest is in the business of selling vehicles and the vehicle is inventory held for sale. ORS 803.105(1)(j) - (k).)

F.

Failure to deliver vehicle documents on the transfer of an interest in a vehicle is a Class D traffic infraction. ORS 803.105(2).

(§58.4)

Warranty

A.

An implied warranty of merchantability expires one year after the sale of a motor vehicle to a retail buyer or after 12,000 miles of use, whichever occurs first. ORS 72.8070(2)(b).

B.

If an express warranty of stated duration is made, the implied warranty of merchantability endures for at least 60 days after the sale and for the duration of the express warranty, or for one year after the sale or 12,000 miles of use, whichever occurs first. ORS 72.8070(3).

(§58.5)

References

See generally CONSUMER LAW IN OREGON chs 10, 17 (Oregon CLE 1996 & Supp 2000).

PERSONAL INJURY I.

(§59.1)

Generally

A.

An action based on personal injury or injury to the rights of another not arising on contract and not especially enumerated in ORS 12.110 must be commenced within two years after accrual of the cause of action.

ORS 12.110(1); Lang v. Hill, 226 Or 371, 374, 360 P2d 316 (1961) (action for assault and battery must be commenced within two years after accrual of cause of action). See ORS 147.065; COMPENSABLE CRIMES.

B.

Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, do not abate upon the death of the injured person. The personal representative of the decedent may commence an action against the wrongdoer on behalf of the decedent if the action is commenced within three years after the injury causing the decedent’s death. The personal representative also may continue an action already commenced by the injured person before his or her death,

117

PESTICIDES / §61.1

assuming that the cause of action was commenced within the time limits allowed by ORS 12.110. 30.075(1).

II.

(§59.2)

Medical Bills of Injured Minor Child

When a minor child is injured by a wrongdoer, a parent may file an action against the wrongdoer to recover the reasonable medical expenses paid to treat the child’s injuries. See RESTATEMENT (SECOND) OF TORTS §703(e) (1977). A parent’s action to recover the medical expenses of the child is governed by the two-year statute of limitations set forth in ORS 12.110(1). If a child’s guardian ad litem files an action on behalf of the child against the wrongdoer, the parents may file a consent along with the complaint in order to include the claims for medical expenses in the guardian’s action. ORS 30.810(1). If the court allows that consent, the parents may not thereafter maintain a separate action to recover the medical expenses paid to treat the child’s injuries.

ORS 30.810(2).

•

III.

Although the statute and case law are not specific on this issue, a prudent guardian ad litem will bring an action to recover the medical expenses of the child within two years. See Palmore v. Kirkman Laboratories, 270 Or 294, 527 P2d 391 (1974).

(§59.3)

References

See DEATH OR DISABILITY; PRODUCTS LIABILITY; WRONGFUL DEATH. PERSONAL PROPERTY I.

(§60.1)

An action for taking, for detaining, for injuring, or for specific recovery of personal property must be commenced within six years.

ORS 12.080(4).

II.

(§60.2)

References

See LOST AND UNCLAIMED PROPERTY; LANDLORD-TENANT; SECURED TRANSACTIONS (UCC); UNIFORM COMMERCIAL CODE. PESTICIDES I.

(§61.1) A.

118

Liability Claims

To preserve a claim arising out of the use or application of pesticides against a landowner, a person for whom the pesticide was applied, or a pesticide operator, a claimant must, within 60 days after the loss occurs, or within 60 days after discovering the loss due to application of pesticides, file a report of loss with the Oregon Department of Agriculture and mail a true copy of the report to the landowner or pesticide operator and the person for whom the pesticide was applied. If

PRODUCTS LIABILITY / §62.1

the claimant alleges that the loss occurred from damage to growing crops, the claimant must file the report of loss before 50% of the crop is harvested. ORS 634.172(1); see also ORS 12.272 (requires report to be mailed or delivered to landowner, person for whom pesticide was applied, or pesticide operator).

B.

II.

To preserve a claim arising out of the use or application of pesticides by a government agency, a claimant may file the report of loss within the time noted above, and may mail or deliver a true copy of the report to the responsible government agency within the time noted above. ORS 634.172(2). But see ORS 12.272 (requires report to be mailed or delivered to landowner or pesticide operator and person for whom pesticide was applied).

(§61.2)

Records

A pesticide operator must prepare and maintain records of forms approved by the Oregon Department of Agriculture for at least three years from the date that the pesticide is applied. ORS 634.146(2). On the request of a field crop owner, the pesticide operator must provide a written statement describing the pesticide used and its application to the field crop within 40 days after applying the pesticides. ORS 634.146(3).

III.

(§61.3)

References

See CONTINUING TORT; see generally REAL ESTATE DISPUTES ch 9 (Oregon CLE 1993 & Supp 2002).

PRODUCTS LIABILITY I.

(§62.1) A.

A products liability action must be commenced not later than two years after the date on which the death, injury, or damage complained of occurred. ORS 30.905(2); Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001).

•

B.

Generally

EDITOR’S NOTE: At the time of publication of this handbook, an amendment to ORS 30.905 (HB 2080) was pending in the legislature.

The amendment may have an impact on the time limitation for product liability claims and/or on the statute of ultimate repose for products liability claims. Readers should check the status of this proposed 2003 legislation.

An action resulting from asbestos-related disease must be commenced within two years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the disease and the cause of the disease. ORS 30.907.

119

PRODUCTS LIABILITY / §62.1

•

C.

D.

E.

An action arising out of injury from breast implants must be commenced not later than two years from the date the plaintiff discovered, or in the exercise of reasonable care should have discovered, the death or specific injury, disease, or damage for which the plaintiff seeks recovery; the tortious nature of the defendant’s conduct that gives rise to the plaintiff’s claim; and all other elements required to establish the plaintiff’s claim for relief. ORS 30.908.

•

Breast implant products liability actions are specifically exempted from ORS 30.905(1) or any other Oregon statute of ultimate repose.

ORS 30.908(2), 30.907.

•

Lawsuits against physicians or licensed health care facilities, and component parts suppliers who were not owned by, or owners of, breast implant manufacturers, are subject to the two-year limitations under ORS 12.110 (professional malpractice), 12.115 (negligent personal injury), 30.020 (wrongful death), and 30.075 (procedure for death resulting from personal injury). ORS 30.908(4)-(6).

An action against a manufacturer of pickup trucks for injury or damage resulting from fire caused by the rupture of a sidesaddle gas tank in a vehicle collision must be commenced no later than two years after the injury or damage occurs. This provision also applies to any products liability or negligence actions against the manufacturer. ORS 12.278(1).

•

Wrongful death actions against manufacturers under this provision, including products liability and negligence claims, must be brought within three years after the death. ORS 12.278(1).

•

Lawsuits for either death or personal injury or damage resulting from fire caused by the rupture of a sidesaddle gas tank in a collision are exempt from ORS 30.905(1) and any of the other statutes of ultimate repose. ORS 12.278(2).

In 2001, the Oregon Supreme Court held that in a products liability action, the injury occurs when the harm or damage happens, whether or not the plaintiff discovers those consequences within the ensuing twoyear period. Thus, the discovery rule no longer applies to the statute of limitations in products liability lawsuits. Gladhart v. Oregon Vineyard Supply Co., supra; ORS 30.905(2).

•

120

Asbestos products liability actions are specifically exempted from ORS 30.905(1) and are not subject to any other Oregon statute of ultimate repose. ORS 30.905, 30.907.

EDITOR’S NOTE: At the time of publication of this handbook, an amendment to ORS 30.905 (HB 2080) was pending in the legislature.

The amendment may have an impact on the time limitation for

PRODUCTS LIABILITY / §62.2

product liability claims and/or on the statute of ultimate repose for products liability claims. Readers should check the status of this proposed 2003 legislation.

F.

Wrongful Death. The products liability statute of limitations (two years), which is very specific, controls over the more general wrongful death statute of limitations (three years) when a defective product causes a person’s death. The Oregon Supreme Court held that in a wrongful death action alleging product defect claims, the products liability statute of limitations applies, not the personal injury wrongful death statute of limitations. Thus, the products liability statute of limitations for a wrongful death claim runs two years from the date of death. Kambury ex rel. Kambury v. DaimlerChrysler Corp., 334 Or 367 (2002). The Kambury decision did not change specific statutes of limitations governing certain types of products liability actions, such as defective breast implants and side saddle gas tanks.

•

G.

II.

Claims Arising During Minority. A 14-year-old plaintiff was injured while riding an allegedly defective bicycle and did not commence an action until more than two years after the injury, but still within his years of minority. The court held that the statute of limitations is tolled under ORS 12.110(1) and 12.160 for an ordinary tort action that accrues during a plaintiff’s minority. The action was not barred because ORS 12.160 tolled the running of the statute during the plaintiff’s minority under the products liability statute, ORS 30.905(2). ORS 12.160, 30.905(2); Kearney v. Montgomery Ward & Co., 55 Or App 641, 639 P2d 682 (1982).

(§62.2) A.

EDITOR’S NOTE: At the time of publication of this handbook, an amendment to ORS 30.905 (HB 2080) was pending in the legislature.

The amendment may have an impact on the time limitation for product liability claims and/or on the statute of ultimate repose for products liability claims. Readers should check the status of this proposed 2003 legislation.

Ultimate Repose

A products liability action may not be commenced later than eight years after the date on which the product was first purchased for use or consumption. ORS 30.905(1).

•

EDITOR’S NOTE: At the time of publication of this handbook, an amendment to ORS 30.905 (HB 2080) was pending in the legislature.

The amendment may have an impact on the time limitation for product liability claims and/or on the statute of ultimate repose for

121

PRODUCTS LIABILITY / §62.2

products liability claims. Readers should check the status of this proposed 2003 legislation.

122

B.

The statute of ultimate repose has been interpreted to allow a claim within two years of a product-related injury if the injury occurred within eight years of the first purchase of the product for use or consumption.

Baird v. Electro Mart, 47 Or App 565, 616 P2d 335 (1980). Therefore, a plaintiff’s product liability claim is time barred if the injury occurred more than eight years after the date the product was first purchased for use or consumption. Border v. Indian Head Industries, Inc., 101 Or App 556, 792 P2d 111 (1990).

C.

The statute of repose for products liability actions begins to run on the date of the first purchase by the user or consumer. Border v. Indian Head Industries, supra. What constitutes the “first purchase” and whether such a transfer is for “use or consumption” are fact questions for the jury.

Akins v. Bucyrus-Erie, 115 Or App 222, 837 P2d 981 (1992).

D.

The Oregon Supreme Court has held that the eight-year statute of ultimate repose applies only to acts, omissions, or conditions existing or occurring before the date the product was first purchased for use or consumption. Acts or omissions occurring after that date are governed by the 10-year statute of ultimate repose for negligence actions in ORS 12.115. ORS 30.905; Erickson Air-Crane Co. v. United Tech.

Corp., 303 Or 281, 735 P2d 614, modified, 303 Or 452 (1987).

•

In Erickson, supra, more than eight years after the product was purchased, the manufacturer gave negligent instructions on how long the product would last. The court concluded that the allegations of negligence did not describe a product liability theory.

•

In contrast, the court in Jamison v. Spencer R.V. Center, Inc., 98 Or 529, 779 P2d 1091 (1989), held that the plaintiff’s allegations that the defendant negligently assembled and installed a defective trailer hitch sounded in products liability, not negligence. The trailer hitch failed eight years and three months after the sale. Accordingly, the court found that the alleged negligence occurred before the sale. Therefore, the claim was barred by the products liability statute of ultimate repose.

E.

The exemption provided for public corporations to the statute of limitations in ORS 12.250 does not apply to the products liability statute of repose, ORS 30.905(1). Shasta View Irrigation Dist. v. Amoco Chemicals, 329 Or 151, 986 P2d 536 (1999).

F.

The Oregon Supreme Court’s analysis in Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001), regarding the inapplicability

RACKETEERING STATUTES (RICO) / §63.2

of the “discovery rule” to products liability cases does not change the application of the statute of ultimate repose set forth in ORS 30.905(1).

Because the statute of repose is an absolute period that cannot be extended, the plaintiff’s knowledge of his or her injury is irrelevant to the running of that statute. Border v. Indian Head Industries, supra, 101 Or App at 563 (discovery rule does not play role in applying statute of ultimate repose).

III.

(§62.3)

References

See generally 1 TORTS ch 19 (Oregon CLE 1992 & Supp 2000); 1 DAMAGES ch 11 (Oregon CLE 1998 & Supp 2002); 2 INSURANCE ch 24 (Oregon CLE 1996 & Supp 1999).

RACKETEERING STATUTES (RICO) I.

II.

(§63.1)

Generally

A.

A description of racketeering activities is set forth in ORS 166.715166.735.

B.

A civil action for violation of racketeering statutes may be commenced at any time within five years after the conduct that violates the statutes has terminated or after the cause of action accrues. ORS 166.725(11)(a).

C.

If a criminal prosecution or civil action is commenced, the running of the statute of limitations is suspended while the prosecution or action is pending and is suspended for two years after the prosecution or action terminates. ORS 166.725(11)(a).

D.

A cause of action under ORS 166.725(6)(a)(A) or (7)(a)(A) accrues when the criminal conviction for the underlying activity is obtained. In addition to the suspension of the statute of limitations noted above, the limitations period is suspended during any appeal from the criminal conviction for the underlying activity. ORS 166.725(11)(b).

E.

Federal Law. Claims arising more than 4 years prior to initial filing of a federal antitrust suit are barred under 15 USCS §§ 15b. The Clayton Act antitrust statute of limitations (15 USCS §§ 15b) governs civil RICO actions under 18 USCS §§ 1962. Agency Holding Corp. v. Malley-Duff & Assoc. Inc., 483 U.S. 143; 107 S. Ct. 2759; 97 L. Ed. 2d 121 (1987).

(§63.2)

Proof

To bring a civil action for racketeering against a party, it is not necessary that the party was convicted of violating the racketeering statutes in a prior criminal prosecution, but the plaintiff in a civil action must demonstrate a “pattern of racketeering” by showing at least two incidents of “racketeering activity.” The

123

REAL PROPERTY / §64.2

incidents cannot be isolated and must occur within five years of each other.

ORS 166.715(4); Computer Concepts, Inc. v. Brandt, 98 Or App 618, 780 P2d 249 (1989), aff’d, 310 Or 706 (1990).

III.

(§63.3)

References

See generally 2 TORTS ch 28 (Oregon CLE 1992 & Supp 2000).

REAL PROPERTY I.

(§64.1)

Land Sale Contract

An action to enforce a contract for the sale of real property must be commenced in the county in which the real estate is situated within five years from the date of maturity of final payment as stated in the contract or from the date to which final payment is extended by a recorded agreement. The contract will cease to be a lien, encumbrance, or cloud on the title unless an action is commenced within five years of these dates. ORS 12.060(1).

II.

(§64.2) A.

A person may acquire title to real property by adverse possession only if the person claiming adverse possession and the predecessors in interest of that person have maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property for 10 years. Also, the claiming party and predecessors in interest during the relevant period must have had an honest belief that the property in question was owned by the claiming party and this belief must have existed from the commencement of the vesting period. The honest belief must be objectively reasonable given the circumstances surrounding the property.

ORS 105.620; Mid-Valley Resources, Inc. v. Engelson, 170 Or App 255, 259, 13 P3d 118 (2000), rev den, 332 Or 137 (2001).

•

124

Adverse Possession

CAVEAT: This statute does not apply unless the claim was filed and the interest vested after January 1, 1990. Nooteboom v. Bulson, 153 Or App 361, 364, 956 P2d 1042, rev den, 327 Or 431 (1998); Markovich v. Chambers, 122 Or App 503, 506, 857 P2d 906 (1993).

B.

An action to recover possession of real property must be commenced within 10 years. No action will be maintained unless it appears that the plaintiff, an ancestor, a predecessor, or a grantor possessed the property within 10 years before the action is commenced. ORS 12.050; Evans v.

Hogue, 296 Or 745, 754, 681 P2d 1133 (1984).

C.

A tenant in common may acquire sole title to real property by adverse possession against other cotenants by possessing the property to the exclusion of other cotenants and paying all taxes for an uninterrupted

REAL PROPERTY / ยง64.4

period of 20 years. No notice need be given to the other cotenants. ORS 105.615; Miller v. Miller, 101 Or App 371, 376, 790 P2d 1184 (1990).

III.

IV.

(ยง64.3)

Action for Waste, Trespass

A.

An action for waste, trespass, interference with, or injury to any interest of another in real property (but not an action for recovery) must be commenced within six years. ORS 12.080(3).

B.

An action arising from injury to property caused by a nuclear incident must be commenced within two years after the injury was or reasonably should have been discovered and the connection between the injury and the nuclear incident. In no event can an action arising from a nuclear incident be commenced more than 30 years after the incident.

ORS 12.137.

(ยง64.4)

Damage from Construction, Alteration, or Repair to Real Property

A.

An action for damages arising from the construction, alteration, or repair of any improvement to real property, or the supervision or inspection of work on the improvement, must be commenced within six years. ORS 12.080(3); Sutter v. Bingham Construction, Inc., 81 Or App 16, 19, 724 P2d 829 (1986).

B.

In any event, an action for damages arising from the construction, alteration, or repair of any improvement to real property, or the supervision or inspection of work on the improvement, must be commenced within 10 years from the date that the work on the improvement was substantially completed or abandoned. The limitation applies to any person who furnished design, planning, surveying, architectural, or engineering services. ORS 12.135(1); Beals v. Breeden Bros., 113 Or App 566, 570, 833 P2d 348 (1992). โ ข

C.

CAVEAT: This limitations period applies only to claims relating to bodily injury or physical injury to existing tangible property. It is not applicable to claims for financial loss stemming from inadequate performance or completion of such work. Beveridge v. King, 292 Or 771, 775, 643 P2d 332 (1982).

However, any action against an architect, as defined in ORS 671.010, a landscape architect, as defined in ORS 671.310, or an engineer, as defined in ORS 672.005, regardless of the legal theory, must be commenced within two years from the date that the injury or damage is first discovered or should have been discovered, and within 10 years of substantial completion or abandonment of the project. ORS 12.135(2); Kashmir Corp. v. Barnes, 278 Or 433, 437, 564 P2d 693 (1977).

125

REAL PROPERTY / §64.6

•

D.

V.

Substantial completion is defined as the date when the contractee accepts in writing the work done to the improvement to the real property as being completed to the point that the improvement may be used for its intended purpose. If there is no written acceptance, substantial completion occurs on the date the contractee accepts the completed construction, alteration, or repair of the improvement. ORS 12.135(3).

(§64.5)

A lien for labor or materials furnished for work on a mine or for preparing land for irrigation or cultivation is a lien on the mine, improvement, or prepared land as of the day the lien claimant ceases to furnish labor or materials. ORS 87.352, 87.356, 87.364.

B.

A person who furnishes nursery stock worth at least $25 for planting on land has a lien on the land as of the day the nurseryman ceases to furnish stock or perform labor. ORS 87.358, 87.364.

C.

A cooperative or utility that supplies electricity for irrigation of land has a lien on the land for the costs of the electricity. The lien attaches on the day of the first delivery of electricity to the land. ORS 87.362, 87.364.

D.

A written notice of claim of lien for labor or materials for mining, land preparation, irrigation, or nursery must be filed within 120 days after the lien attaches, or the right to the lien is waived. ORS 87.366(1).

E.

An action to foreclose a mining, land preparation, irrigation, or nursery lien must be commenced within six months after the notice of claim of lien is filed or within six months of extended payment or the lien will cease to exist. In any event, a lien cannot be continued by agreement to extend payment for more than two years from the date the claim of lien was filed. ORS 87.376.

(§64.6) A.

126

Mining, Land Preparation, Nurseryman, Irrigation

A.

•

VI.

CAVEAT: The ORS 12.135 ten-year statute of repose for all construction-related defects or damages claims can reduce the applicable limitations period if discovery triggers the start of the period under ORS 12.080 or ORS 12.110.

CAVEAT: Such liens must be foreclosed in accordance with ORS chapter 88. ORS 87.382.

Right, Claim, or Interest

An action to determine any right, claim, or interest in real property must be commenced within the same limitations period that applies to actions to recover possession of real property. ORS 12.040(1); Evans v. Hogue, 296 Or 745, 754, 681 P2d 1133 (1984). An action to recover possession of real property must be commenced within 10 years. ORS 12.050.

REAL PROPERTY / §64.9

VII.

B.

A breach of implied warranty in the sale of a used residence is barred if not commenced within 10 years from substantial completion.

ORS 12.135; Sponseller v. Meltebeke, 280 Or 361, 570 P2d 974 (1977).

C.

See also MORTGAGES AND TRUST DEEDS.

(§64.7)

Land Surveying

Generally, an action to recover for injury to a person or property (including damages due to delay or economic loss) arising out of the survey of real property must be commenced within two years after the injury is discovered or should have been discovered. A statute of ultimate repose applies: the action must be commenced within 10 years after the surveyor’s map is filed or, if no map is filed, within 10 years after the work on the survey is completed. ORS 12.280.

VIII. (§64.8)

Street Use Restriction

Any cause of action granted by ORS 105.850-105.870 is barred unless the action is commenced within 60 days after the date on which the change of use becomes effective and use of the streets is prohibited or restricted.

ORS 105.870.

IX.

(§64.9)

Fraudulent Transfer and Conveyance

A.

An action alleging fraudulent transfer or obligation in which the debtor had an actual intent to hinder, delay or defraud the creditor must be commenced within 4 years after the transfer was made or obligation was incurred, or, if later, 1 year after the transfer or obligation was, or could have been reasonably discovered by the claimant. ORS 95.280(1); ORS 95.230(1)(a).

B.

An action alleging fraudulent transfer or obligation involving the following circumstances must be commenced within 4 years after the transfer was made or obligation was incurred. ORS 95.280(2).

(1) The creditor did not receive a reasonably equivalent value in exchange for the transfer or obligation, and; (a) the debtor was engaged or about to engage in a business or transaction for which the debtor’s remaining assets were unreasonably small in relation to the business or transaction, or; (b) the debtor intended to incur, or believed or reasonably should have believed that the debtor would incur debts beyond the debtor’s ability to pay as they become due.

ORS 95.230(1)(b).

127

RECOVERY OF POSSESSION OF PERSONAL PROPERTY / §65.1

(2) A transfer made or obligation incurred by a debtor to a creditor whose claims arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor becomes insolvent as a result of the transfer or obligation. ORS 95.240(1).

C.

An action alleging fraudulent transfer or obligation in which a transfer made by a debtor to a creditor whose claim arose before the transfer was made, if the transfer was made to an insider for other than a present, reasonably equivalent value, the debtor was insolvent at that time and the insider had reasonable cause to believe that the debtor was insolvent, must be commenced within 1 year after the transfer was made or obligation was incurred. ORS 95.280(3); ORS 95.240(2).

RECOVERY OF POSSESSION OF PERSONAL PROPERTY

I.

128

(§65.1)

Generally

A.

An action to recover possession of specific personal property, with or without money damages, must be commenced within six years.

ORS 12.080(4).

B.

All common-law remedies for interference with possession of personal property, such as replevin, detinue, trover, and conversion, are covered by the six-year statute of limitations. Lord Electric Co. v. Pac. Intermountain Exp. Co., 282 Or 335, 578 P2d 776 (1978) (six-year statute of limitations applies to personal property damaged in shipment); Anais v. Dias, 70 Or App 478, 689 P2d 1011 (1984) (statute of limitations for damage to personal property in motor vehicle accident is six years without regard to lapse of two-year statute of limitations for personal injury); Parker v. Richards, 43 Or App 455, 602 P2d 1154 (1979) (six-year statute of limitations applies to unlawful transfer of personal property on dissolution of corporation). Cf. U.S. Nat’l Bank v.

Davies, 274 Or 663, 548 P2d 966 (1976) (legal malpractice causing economic loss (money) is not within contemplation of direct, physical injury to personal property).

C.

All claims arising from wrongful dispossession, including money damages and personal injury actions, must be included in the action for possession or they will be precluded. Peterson v. Temple, 323 Or 322, 331-332, 918 P2d 413 (1996); Gust v. Edwards Co., 129 Or 409, 274 P2d 919 (1929).

REFORMATION OF CONTRACTS AND INSTRUMENTS / §66.1

II.

III.

D.

A cause of action for wrongful dispossession of personal property accrues on the date of wrongful taking, Savage v. Kramer, 95 Or App 166, 768 P2d 425 (1989), or the date that return is demanded when the personal property is lawfully obtained but wrongfully withheld, Everman v. Lockwood, 144 Or App 28, 925 P2d 128 (1996).

E.

Claim and delivery is a form of provisional process to obtain immediate delivery of the personal property after an action has commenced.

ORCP 85. The entitlement to possession is normally resolved through a show cause order and hearing. The party receiving possession may be required to post a bond or provide other security, such as depositing funds into court. ORCP 82 A(3). When personal property is taken through claim and delivery, a plaintiff may not voluntarily dismiss an action for at least 30 days after the personal property is taken. ORCP 85 E.

(§65.2)

Procedure

A.

In an action to recover possession of personal property, the plaintiff may claim the immediate delivery of the property by provisional process at any time after the action is commenced but before a judgment is issued.

ORCP 85 A.

B.

After an action is commenced, the plaintiff may obtain an ex parte order of immediate provisional process or obtain such an order after an order to show cause has been served and a hearing has been held on the plaintiff’s application. ORCP 83.

C.

To protect the defendant from being deprived of a hearing on the merits of the plaintiff’s claimed right to possession of the personal property, ORCP 85 E prohibits the dismissal of a claim and delivery action by the plaintiff until 30 days after the plaintiff has recovered the property.

(§65.3)

References

See PERSONAL PROPERTY; UNIFORM COMMERCIAL CODE. See generally CREDITORS’ RIGHTS AND REMEDIES ch 1 (Oregon CLE 2002); 2 CIVIL LITIGATION MANUAL ch 31 (Oregon CLE 1993 & Supp 1999); 2 OREGON CIVIL PLEADING AND PRACTICE ch 32 (Oregon CLE 1994 & Supp 2001).

REFORMATION OF CONTRACTS AND INSTRUMENTS I.

(§66.1)

An action (suit) for reformation is deemed to be a “cause not otherwise provided for,” and therefore the 10-year period provided in ORS 12.140 applies, subject to a finding of laches. The six-year statute provided in ORS 12.080(1) does not apply. Woodriff v.

Ashcraft, 263 Or 547, 553, 503 P2d 472 (1972).

129

SECURED TRANSACTIONS (UCC) / §67.1

II.

(§66.2)

See generally CONTRACT LAW IN OREGON ch 10 (Oregon CLE 1991 & Supp 1999); REAL ESTATE DISPUTES ch 2 (Oregon CLE 1993 & Supp 1997).

SECURED TRANSACTIONS (UCC)

I.

(§67.1)

Generally

“Revised” Article 9 of the Uniform Commercial Code was adopted by the Oregon Legislature as Senate Bill 171 and signed by the Governor on June 16, 2001. New ORS chapter 79 became effective on the national effective date (targeted for all 50 states) of July 1, 2001. Revised Article 9 is not intended to affect any action, case, or proceeding that was pending on July 1, 2001.

Revised Article 9 is intended to apply to any transaction within its expanded scope, whether entered into before or after the July 1, 2001, effective date.

Security interests and liens that were properly perfected under old Article 9 remain perfected for the remainder of their effective period under the old law and may be continued as required under the new law. 2001 Or Laws ch 445 §§188-194.

130

•

CAVEAT: The transition rules are NOT in the statute. While the changes to the filing rules make the perfection of security interests easier and less complicated, the need for complex “transition rules,” that get us from the old ways to the new ones, unfortunately create many potential malpractice traps. The transition rules are printed at the end of revised Article 9 following ORS 79.0628 under the heading “TRANSITION PROVISIONS.” They are listed as “Sections 188 to 195, chapter 445, Oregon Laws 2001” and they mirror UCC Sections 9-702 to 9-709.

•

These complex “transition rules” (revised UCC 9-701 and 9-709) provide several “grandfathering” provisions covering both security agreements and financing statements. Under revised UCC 9-703, if a security agreement is enforceable under the old law before July 1, 2001, but the security agreement would be unenforceable under the new law, the security agreement remains enforceable for a period of one year (through July 1, 2002). If the defect in the security agreement is corrected under the new law within the one-year grace period, the security agreement is enforceable after July 1, 2002.

•

All financing statements that are effective under the old law as of the effective date of July 1, 2001, remain effective until their five-year lapse date occurs under the old law. The statement may then be continued by the filing of an “initial financing statement in lieu of continuation statement.”

Revised UCC 9-702 to 9-706. The initial financing statement in lieu of continuation must be filed in the appropriate state under the new law (in the

SECURED TRANSACTIONS (UCC) / §67.2

state where the debtor is located). The new statement can be filed at any time and the new statement will lapse five years after the date it was filed.

For the first five years after July 1, 2001, creditors searching for financing statements may have to search in multiple jurisdictions because of the new rules providing for the filing of financing statements where the debtor is located. Revised UCC 9-301 and 9-307 (ORS 79.0301 and 79.0307).

II.

•

If a security interest is perfected under the old law by a method other than filing and the new law requires filing to perfect, the security interest remains perfected for one year until July 1, 2002. If the defect in perfection is cured by filing within the grace period, the security interest remains perfected for five years thereafter.

•

CAVEAT: Agricultural Liens. Oregon has a non-uniform provision in ORS 79.0302 that says Article 9 does not apply to agricultural liens. But note that the statute adopted by the Oregon Legislature left in several provisions governing agricultural liens, creating an apparent ambiguity. It is crystal clear, however, that the legislature intended to exclude all coverage of agricultural liens under Article 9, choosing instead to leave the provisions governing such liens in ORS chapter 87. See CHATTEL LIENS and STATUTORY LIENS.

(§67.2)

General Definitions

A.

Secured transactions are covered in ORS 79.0101–79.0628, except excluded transactions enumerated in ORS 79.0109(4). A secured transaction is any transaction that is intended to create a security interest in personal property or fixtures. The statutes also apply to the sale of accounts or chattel paper and to security interests created by contract, but do not apply to statutory liens except in questions of priority. ORS 79.0109(4)(b).

B.

Perfection. Except as otherwise stated in ORS 79.0308-79.0309, a security interest is perfected when it has attached and all of the requirements for perfection have been satisfied. ORS 79.0308. Revised Article 9 now has three methods of perfection: (1) the filing of a financing statement; (2) the taking of possession of certain types of collateral; and (3) perfection by “control.”

•

Taking these three “methods” of perfection in reverse order, perfection by “control” may be accomplished with respect to investment property and electronic chattel paper. (Ordinary chattel paper may also be perfected by possession because there is “paper” to “hold”). A security interest in these two types of collateral may also be perfected by filing. A security interest in deposit accounts (as opposed to “proceeds” of other collateral) and letter of credit rights

131

SECURED TRANSACTIONS (UCC) / §67.2

may be perfected only by control. ORS 79.0312(2)(a) - (b). A bank perfects a security interest in a bank account automatically if the debtor’s account is maintained at that bank. A creditor other than a bank needs an agreement by the debtor allowing the depositary bank to pay the money to the creditor pursuant to the creditor’s instructions or directing the opening of an account in the creditor’s name. Under either scenario, perfection is via “control” as provided in ORS 79.0104(1) and 79.0314. The control agreement among the bank, debtor, and secured party must be authenticated by the debtor. ORS 79.0104(1)(b). The secured party has control even if the debtor retains the right to direct disposition of the funds from the deposit account (in most cases). ORS 79.0104(2).

C.

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•

Under the new law, perfection by possession of certain types of collateral is no longer mandatory. Security interests in negotiable documents, goods, tangible chattel paper, and instruments including promissory notes may be perfected by possession or filing, and the same is true for certificated securities. ORS 79.0313. A security interest in money, however, may be perfected only by possession.

ORS 79.0312(c) and ORS 79.0313.

•

Proceeds. A security interest in collateral automatically attaches to the proceeds of the collateral and is automatically perfected in the proceeds. ORS 79.0315(3). Proceeds includes whatever is acquired on the sale, lease, license, exchange, or disposition of collateral; rights arising out of collateral; and collections and distributions on collateral. ORS 79.0102(1)(LLL).

•

Automatic Perfection. ORS 79.0309 contains a list of 13 types of collateral for which security interests are automatically perfected when they attach. The most significant types are purchase money security interests in consumer goods and sales of accounts, chattel paper, and promissory notes.

Jurisdiction/Perfection by Filing. Financing statements must be filed only where the debtor is “located.” ORS 79.0301, 79.0307. Corporations, LLCs, LLPs, limited partnerships, and other businesses that are “registered organizations” under the law of a state are “located” in the state where they are organized. ORS 79.0307(5). Professor Barkley Clark refers to this state as the “birth certificate state.” Other businesses (sole proprietorships and unregistered partnerships) are “located” at their “chief executive office” if they have more than one location. ORS 79.0307(2)(c). Individuals are “located” at their principal residence. ORS 79.0307(2)(a). All of the complex, multiple-state perfection rules in old UCC Section 9-103 that were based on types of collateral such as

SECURED TRANSACTIONS (UCC) / §67.5

“mobile goods” have been eliminated, except during the transition periods governed by the transition rules discussed above. Several rules govern changes in the debtor’s location to another jurisdiction and transfers of collateral to a person in another jurisdiction who becomes a debtor. A four-month grace period is allowed for filing in the new jurisdiction after the debtor changes its location from one state to another, and a one-year grace period is allowed for transfers of collateral to a person in a different state. ORS 79.0316(1)(b) - (c). If a debtor so changes its name that a filed financing statement becomes seriously misleading, the financing statement is effective to perfect a security interest in collateral acquired by the debtor before, or within four months after, the change. The financing statement is not effective to perfect a security interest in collateral acquired more than four months after the change, unless an amendment to the financing statement which cures the seriously misleading information is filed within four months after the name change. ORS 79.0507(3)(a)-(b).

III.

(§67.3)

Purchase Money Security Interest (PMSI)

A PMSI governs “purchase money collateral,” which secures a “purchase money obligation.” A “purchase money obligation” means an obligation of an obligor incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used. ORS 79.0103(1). ORS 79.0324 provides the rules for purchase money priority. The general rule is that a PMSI in goods other than livestock or inventory takes priority over a conflicting security interest in the same goods. For a PMSI to have priority in inventory or livestock, the secured party must strictly comply with the time of possession and notice rules in ORS 79.0324(2)-(4), giving notice to the holders of all conflicting security interests of record.

IV.

V.

(§67.4)

Attachment

A.

A security interest attaches when it becomes enforceable against the debtor and the requirements of ORS 79.0203(2)(a)-(c) are met, except as otherwise provided in ORS 79.0203(3)-(9).

B.

A security interest in after-acquired consumer goods pledged as security attaches only if the debtor acquires rights in the goods within 10 days after the secured party gives value. ORS 79.0204(a).

(§67.5)

Debtor’s Request for Accounting

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SECURED TRANSACTIONS (UCC) / §67.8

If a debtor provides the secured party with an authenticated record requesting an accounting; indicating the debtor’s understanding of the unpaid indebtedness; or providing a list of the collateral, and the debtor requests that the secured party provide an accounting, approve, or correct the statement of the account or list of collateral, the secured party must respond in writing within two weeks of receipt. A debtor may request such action every six months without charge. ORS 79.0210. In a consumer transaction, failure to comply with such a request entitles the debtor to damages plus $1,500, unless the secured party proves a reasonable excuse for non-compliance.

VI.

VII.

(§67.6)

Priority

A.

PMSI. A secured party must file a purchase money security interest (PMSI) within 20 days after the debtor receives possession of the collateral in order to have priority over an intervening lien creditor or a transferee in bulk. ORS 79.0324(1).

B.

A lien created while a security interest is perfected is subject to the security interest to the extent that the security interest secures advances made before the lien is created or within 45 days after the lien is created.

ORS 79.0323(2)-(7).

(§67.7)

Consignments

Consignments are treated as PMSIs by revised Article 9. ORS 79.0103. The consignor must follow the notification procedures in ORS 79.0324(2) to defeat a conflicting security interest in the consignee’s inventory. Oregon also has an “art transactions” law, ORS 359.200-359.255, that prescribes the minimum terms for an artist’s and an art dealer’s consignment contract (ORS 359.220) and provides that the law trumps any conflicting provision of the Uniform Commercial Code, including Article 9. ORS 359.235.

VIII. (§67.8) A.

134

Filing

Generally. A financing statement may be filed before or after a security interest attaches or before a security agreement is made.

ORS 79.0502(4).

•

With several exceptions listed in ORS 79.0516(2) (filing officer’s refusal to accept filing), filing occurs on receipt by the filing office of the financing statement (or a record that complies) for filing and tender of filing fees or acceptance of the record by the filing officer.

ORS 79.0516(1).

•

PRACTICE TIP: Send the filing officer a copy of each statement or document filed, along with a request for return of the copies conformed by the filing officer with the number, date, and hour of filing.

SECURED TRANSACTIONS (UCC) / ยง67.10

IX.

X.

B.

Duration. With minor exceptions found in ORS 79.0515(2) and ORS 79.0515(5) - (7), a financing statement is effective as filed for five years from the date of filing. ORS 79.0515(1).

C.

Amendment. A financing statement may be amended at any time. An amendment that adds collateral is effective as to the additional collateral only from the filing date of the amendment. ORS 79.0512(3).

D.

Name Change. A financing statement generally remains effective if the debtor changes names. If the change makes the financing statement misleading, however, the filing is effective only for property acquired by the debtor before the name change and collateral acquired by the debtor within four months after the name change. ORS 79.0507(3).

E.

Mortgage. A mortgage is effective as a financing statement filed as a fixture filing from the date of recording the mortgage if the goods are described in the mortgage, the goods are to become fixtures, the mortgage meets the requirements of a financing statement, and the mortgage is duly recorded. ORS 79.0502(3).

(ยง67.9)

Continuation Statement

A.

Filing to Continue Perfection. A security interest becomes unperfected after five years unless it is perfected without filing. A continuation statement must be filed before the five-year period expires to continue the effectiveness of the filing. ORS 79.0515(3). A continuation statement must be filed only within six months before expiration of the earlier filing. The effectiveness of the original financing statement is continued for five years after the last effective date of the original filing. ORS 79.0515(4) - (5). The same five-year (duration) and six-month (continuation period) rules govern the duration and continuation of a timely filed continuation statement (and any number of successive continuation statements). ORS 79.0515(5).

B.

Renewal Notice. The Secretary of State will send a renewal notice to the secured party not more than six months and not less than three months before expiration. ORS 79.0515(8).

(ยง67.10) Termination Statement A.

Termination Statements. A secured party must file a termination statement in a consumer transaction within one month after there is no obligation covered by the financing statement and no commitment exists to make future advances (i.e. under a line of credit) or within 20 days after the secured party receives an authenticated demand from the debtor.

ORS 79.0513(1)-(2). In nonconsumer transactions, the 20-days-afterreceipt of an authenticated demand rule applies. ORS 79.0513(3). In non-consumer transactions, the debtor is entitled to recover actual 135

SECURED TRANSACTIONS (UCC) / §67.13

damages for noncompliance with ORS 79.0513. In a consumer transaction, in addition to actual damages, the debtor is entitled to recover $500 for each instance in which a secured party fails to file or send a termination statement. ORS 79.0625(5). Also, a debtor may file an effective termination statement only if the secured party otherwise has a duty to file a termination statement and has failed to do so. ORS 79.0509(4)(b).

B.

XI.

Record. The filing officer must retain a record of all filed statements for one year after the effectiveness of a financing statement lapses under ORS 79.0515(1)-(7) with respect to all secured parties of record. ORS 79.0519(7).

(§67.11) Assignment The assignee becomes a secured party of record only on filing a statement of assignment and paying the filing fee for each financing statement.

ORS 79.0514.

XII.

(§67.12) UCC Search At the request of any person, the filing officer must (within two days if requested other than by mail or within four days if requested by mail) issue a record showing all liens and encumbrances and the names and addresses of all parties holding security interests in all collateral included in all financing statements filed under a debtor’s name, as of a date and time specified but not a date earlier than five business days before the filing office receives the request.

ORS 79.0523.

XIII. (§67.13) Remedies – Secured Party

136

A.

Default. When a secured party has reduced its claim to judgment, any lien based on the judgment relates back to the date of perfection of the security interest. ORS 79.0601(5). See FORECLOSING SECURITY INTERESTS ch 6 (Oregon CLE 1007 & Supp 2001).

B.

Collection from Account Debtors. On default or as agreed, the secured party may notify an account debtor or obligor to make payment or render performance directly to the secured party or may take control of any proceeds to which the secured party is entitled. ORS 79.0607.

C.

Sale. Unless otherwise agreed, the secured party has the right to take possession of and sell the collateral if the debtor defaults. ORS 79.0609.

The secured party may dispose of the collateral in a commercially reasonable manner and must give reasonable notice of the disposition to the debtor, except in the case of consumer goods. The secured party must also send notice to any secured party from whom the foreclosing secured

SECURED TRANSACTIONS (UCC) / §67.14

party has received notice of a claim of interest in the collateral.

ORS 79.0610-79.0611.

D.

•

In nonconsumer transactions, notice given at least 10 days after default and before the sale is considered a reasonable time. ORS 79.0612(2). In consumer transactions, 15 days’ notice after default and before disposition is a reasonable time. ORS 79.0612(1). Parties may agree to a shorter reasonable notice period in the security agreement.

•

Form of Notice. Note that ORS 79.0613 (Generally) and ORS 79.0614 (Consumer Transactions) provides a statutory form of notice.

Compulsory Disposition. A secured party who has taken possession of collateral must dispose of it within 180 days after possession (unless otherwise agreed by the debtor secured party and all secondary obligors) if the debtor has paid 60% of the cash price on consumer goods or repaid 60% of the loan when the loan is secured by consumer goods. The debtor may recover in conversion or on the secured party’s liability if the secured party fails to properly dispose of the goods within 180 days after possession. ORS 79.0620(5) - (6).

•

If the foreclosing secured party proposes to retain possession of collateral, in full or partial satisfaction of the obligation, the secured party must send notice of the intention to any other secured party who has given the foreclosing secured party notice of a claim of interest in the collateral. ORS 79.0621. Note that the practice known as “partial strict foreclosure” is not available in consumer transactions.

XIV. (§67.14) Remedies – Debtor A.

Conversion. A debtor may bring an action for conversion (six-year statute of limitation) or an action under ORS 79.0620(5) - (6) if the debtor has paid 60% of the cash price in the case of consumer goods or has paid 60% of the loan for consumer goods when the secured party fails to sign a statement modifying or renouncing the debtor’s rights and has not disposed of the collateral within 180 days after taking possession. ORS 79.0620, 79.0624.

B.

Redemption. The debtor or any other secured party may redeem the collateral by tendering full payment of the obligation and expenses, including attorney fees as described in ORS 79.0615(1)(a), at any time before the secured party disposes of or sells the collateral, or discharges the obligation. ORS 79.0623.

C.

Secured Party’s Liability. The debtor or any secured party may bring an action against the foreclosing secured party for failure to comply with ORS chapter 79 for any loss caused by failure to comply. ORS 79.0625.

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SECURED TRANSACTIONS (UCC) / §67.15

138

•

If the collateral is consumer goods, the debtor has a right to recover its loss or an amount not less than $1,000 plus reasonable attorney fees. ORS 79.0625(3)(b).

•

When the secured transaction also involves a sale of goods governed

by UCC Article 2, and the remedies enforced by the seller are derived from Article 9, the applicable statute of limitations appears to be six years and not four (or less) as provided in ORS 72.7250. In Chaney v.

Fields Chevrolet, 264 Or 21, 503 P2d 1239 (1972), the plaintiff auto dealer (secured party), after a default in the debtor’s car payments, repossessed the debtor’s automobile and sold it for more than the debt owed to the secured party. The debtor sued more than four years (but less than six years) after discovery of the ultimate facts from the secured party. The Oregon Supreme Court held that because Article 9 has no statute of limitations, either the six-year general contract limitations period or the six-year “action on statute” limitations period applied.

•

CAVEAT: This holding is suspect when the creditor files an action to collect on a secured installment sale contract or other sales transaction to which Article 9 applies because the four-year statute of limitations set forth in ORS 72.7250 clearly governs the transaction.

Query whether the result would have been the same if the creditor was suing the debtor for a deficiency judgment.

•

PRACTICE TIP: Disposition or sale of the collateral by the secured party after default must occur in a commercially reasonable manner in accordance with part 6 of Article 9 (ORS 79.0601-79.0628). See FORECLOSING SECURITY INTERESTS chs 6-7 (Oregon CLE 1997 & Supp 2001) for guidance on prescribed methods of judicial and nonjudicial foreclosure of security interests and personal property.

SECURITIES – BLUE SKY LAWS / §68.1

XV.

(§67.15) Farm Products Note: The Central Filing System for “farm products” is now governed by ORS 80.100 - 80.130.

A.

Effective Financing Statement. An effective financing statement for farm products must be filed with the Secretary of State and is effective for five years from the date of filing. The statement may be extended for an additional five-year period by refiling or filing a continuation statement within six months before expiration of the five-year period.

ORS 80.115(3).

B.

Duration. An effective financing statement lapses when the effective period expires or when the secured party files a notice that the statement has lapsed, whichever occurs first. A statement of notice of the lapse must be filed within 15 days after the secured obligation ceases. ORS 80.115(4).

C.

Amendment. An effective financing statement must be amended within three months of material changes in the information contained in the effective financing statement. ORS 80.115(2).

D.

Protection by Registration. A buyer of farm goods in the ordinary course of business, a selling agent, and commission merchants should register with the Secretary of State to receive notice of the seller’s perfected security interest from the secretary through the central filing system.

Failure to register will not protect a buyer, selling agent, or commission merchant from a perfected security interest in the farm goods created by the seller. ORS 80.109, 80.112.

•

Registration as a buyer of farm products, commission merchant, or selling agent is effective for one year, subject to annual renewals.

ORS 80.130.

XVI. (§67.16) References See generally FORECLOSURE SECURITY INTERESTS ch 8 (OREGON CLE 1997 & Supp 2001).

SECURITIES – BLUE SKY LAWS I.

(§68.1) A.

Action Against Seller

An action by a purchaser against a seller of a security (other than a federally covered security) that was sold in violation of the Oregon Securities Law must be commenced within three years after the sale.

ORS 59.115(6).

139

SECURITIES – BLUE SKY LAWS / §68.2

II.

140

B.

An action by a purchaser against a seller of a security that was sold by means of a misstatement or omission of a material fact or that was sold in violation of ORS 59.135 must be commenced within the later of three years after the sale or two years after the purchaser discovered or should have discovered the facts on which the action is based. ORS 59.115(6).

C.

An action by a purchaser of a security against a person brought solely under ORS 59.115(3) (liability for officers, directors, partners, control persons of the seller, and persons who materially aid or participate in the illegal sale of securities) must be brought within three years after the sale. Loewen v. Galligan, 130 Or App 222, 882 P2d 104 (1994).

D.

An action by a purchaser of a security against a person brought under ORS 59.115(3) (liability for officers, directors, partners, control persons of the seller, and persons who materially aid or participate in the illegal sale of securities) that alleges a violation of ORS 59.135 must be commenced within the later of three years after the sale or two years after the purchaser discovered or should have discovered the facts on which the action is based. Anderson v. Carden, 146 Or App 675, 934 P2d 562 (1997).

(§68.2)

Action Against Purchaser

A.

An action by a seller against a purchaser of a security (other than a federally covered security) that was purchased in violation of the Oregon Securities Law must be commenced within three years after the purchase. ORS 59.127(6).

B.

An action by a seller against a purchaser of a security that was purchased by means of a misstatement or omission of a material fact or that was purchased in violation of ORS 59.135 must be commenced within the later of three years after the purchase or two years after the seller discovered or should have discovered the facts on which the action is based. ORS 59.127(6).

C.

An action by a seller of a security against a person brought solely under ORS 59.127(3) (liability for officers, directors, partners, control persons of the purchaser, and persons who materially aid or participate in the illegal purchase of securities) must be brought within three years after the purchase. Loewen v. Galligan, 130 Or App 222, 882 P2d 104 (1994).

D.

An action by a seller of a security against a person brought under ORS 59.127(3) (liability for officers, directors, partners, control persons of the purchaser, and persons who materially aid or participate in the illegal purchase of securities) that alleges a violation of ORS 59.135 must be commenced within the later of three years after the purchase or two years after the seller discovered or should have discovered the facts on which

SECURITIES – BLUE SKY LAWS / §68.5

the action is based. Anderson v. Carden, 146 Or App 675, 934 P2d 562 (1997).

III.

(§68.3)

Action Against Broker

A broker purchasing or selling stocks or bonds must deliver a statement or memorandum of the purchase or sale within five days after written demand for a statement is made if the demand is made within six months after the purchase or sale. ORS 59.810.

IV.

(§68.4) A.

Orders entered by the Director of the Department of Consumer and Business Services under the Oregon Securities Law are subject to notice of hearing if written demand is filed within 20 days after service of the order. ORS 59.295(1).

B.

Any person aggrieved by an order of the director that has been the subject of a timely application for hearing is entitled to judicial review of the order. Review is made pursuant to ORS 183.310-183.550.

ORS 59.305.

•

C.

V.

Action by Director

See also GOVERNMENTAL AND PUBLIC BODIES.

When the director or receiver takes possession of a broker-dealer or an investment adviser, and there is a deficiency in its capital, or its condition is impaired or unsound, the receiver or director can liquidate the broker-dealer or investment adviser within 60 days of possession if the deficiency or condition is not remedied. ORS 59.265(1), (3).

(§68.5)

License/Records

A.

Every license of a broker-dealer, investment adviser, or mortgage banker’s or mortgage broker’s salesperson expires one year after the date of issuance unless the director establishes a different expiration date.

ORS 59.185(1)-(2).

B.

Every license of an issuer’s or owner’s salesperson expires when the securities are no longer authorized for sale or one year after the registration, whichever is sooner. ORS 59.185(3)(a).

C.

Subject to the provisions of §15 of the Securities Exchange Act of 1934, as amended, and §222 of the Investment Advisers Act of 1940, as amended, every broker-dealer, state investment adviser, investment adviser representative, and salesperson must keep authorized records.

The records of state investment advisers or investment adviser representatives that are maintained in Oregon must be preserved for three years unless the director rules otherwise. ORS 59.195(1).

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SMALL CLAIMS IN CIRCUIT COURT / §70.2

SKI RESORTS I.

II.

(§69.1)

Notice

A.

A skier injured at a ski resort must notify the ski area operator of the injury by registered or certified mail within 180 days after the injury, or within 180 days after the skier discovers or reasonably should have discovered the injury. ORS 30.980(1).

B.

If the skier’s injury results in death, the personal representative must notify the ski area operator within 180 days after the date of death.

Notice of death is not necessary if the skier notified the ski area operator of the injury within 180 days after the injury. ORS 30.980(2).

C.

Failure to give notice bars a claim for injury or wrongful death unless the ski area operator had knowledge of the injury or death within 180 days after its occurrence, there is good cause for failure of notice, or the operator failed to inform the skier of notice procedures. ORS 30.980(4)(5).

(§69.2)

Action

A.

An action against a ski area operator for damages from an injury must be commenced within two years of the date of the injury. ORS 30.980(3).

B.

ORS 12.160 (suspension of the statute of limitations for disability) and ORS 12.190 (effect of death on limitations) apply to such actions.

ORS 30.980(3).

SMALL CLAIMS IN CIRCUIT COURT

I.

(§70.1)

Judgment

A judgment entered in the small claims department of $10 or more but less than $3,000 may be docketed in circuit court at any time before the judgment expires under ORS 18.360 (generally 10 years). ORS 46.488(2). See JUDGMENTS.

II.

142

•

Once docketed, the judgment becomes a lien on real property of the judgment debtor in the county in which the judgment is docketed. ORS 46.488 governs how the judgment can become a lien in other counties.

•

A judgment entered in the small claims department of $3,000 or more is docketed in circuit court in the same manner as other judgments in circuit court. ORS 46.488(1).

(§70.2)

Appeals

STALKING / §71.1

A judgment in the small claims department is conclusive. No party may appeal.

ORS 46.485(4).

•

III.

See generally 1 OREGON CIVIL PLEADING AND PRACTICE ch 4 (Oregon CLE 1994 & Supp 2001).

(§70.3)

Small Claims

A.

An action on a small claim is commenced by filing a verified claim with the circuit court clerk and paying the prescribed fee. ORS 46.425(1).

B.

The defendant must demand a hearing or a jury trial within 14 days after receiving service of the notice and claim. The defendant may admit the claim and pay the claim, filing fees, and service expenses to the plaintiff, and mail proof of payment to the court; or deny the claim and demand a hearing in the small claims department. If the defendant does none of these things, the plaintiff may request in writing that the court clerk enter a judgment against the defendant. ORS 46.445(4), 46.455, 46.475(2).

C.

The plaintiff must file a formal complaint within 20 days after the defendant’s notice of jury trial is mailed to the plaintiff or the case will be dismissed without prejudice. ORS 46.465(3)(a), 46.475(3).

D.

The defendant must file an appearance within 10 days after delivery of the summons and complaint. ORS 46.465(3).

E.

If the defendant files a counterclaim that is beyond the jurisdictional limit of the small claims court and the defendant files a motion requesting transfer, the case is transferred to circuit court. The plaintiff must reply to the counterclaim within 20 days after the mailing of the notice of transfer. ORS 46.461(3)(a).

F.

A default judgment or dismissal may be set aside within 60 days after entry on good cause shown. ORS 46.475(5).

G.

The defendant may receive a refund of the jury trial fee if the plaintiff fails to timely file a formal complaint. The defendant must request the refund not later than 30 days after expiration of the time provided for the plaintiff’s complaint. ORS 46.475(3)(b).

STALKING

I.

(§71.1)

A person may bring a civil action in a circuit court for a court’s stalking protective order or for damages, or both, against a person if (1) the person intentionally, knowingly, or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household, thereby alarming or coercing the other person; (2) it is objectively reasonable for a

143

STATUTE OF LIMITATIONS – DEFENSES AVOIDING APPLICATION / §72.3

person in the victim’s situation to have been alarmed or coerced by the contact; and (3) the repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim’s immediate family or household.

ORS 30.866.

II.

(§71.2)

An action under this statute must be commenced within two years of the conduct giving rise to the claim. ORS 30.866(1), (6).

STATUTE OF LIMITATIONS – DEFENSES AVOIDING APPLICATION

I.

(§72.1)

Affirmative Defense

The statute of limitations is an affirmative defense that must be timely pleaded in order to be raised at trial. Brusco v. Brusco, 241 Or 550, 407 P2d 645 (1965); Castro v. Ogburn, 140 Or App 122, 914 P2d 1 (1996).

•

II.

See also ULTIMATE REPOSE.

(§72.2)

Waiver

The defense of statute of limitations is waived if not raised by motion under ORCP 21 or included in a responsive pleading or an amended responsive pleading. ORCP 21 G(2).

III.

144

•

EXAMPLE 1: When the defendant moved to dismiss the original complaint on the ground that it was time-barred, but later failed to raise the statute of limitations in answer to the plaintiff’s amended complaint, the statute-oflimitations defense was waived. Simpson v. Simpson, 83 Or App 86, 730 P2d 592 (1986).

•

EXAMPLE 2: A defendant’s statute-of-limitations defense was considered even though it was first raised in a Asupplemental Rule 21 motion” because the defendant could have affirmatively raised the defense if the need to file an answer had arisen. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988).

(§72.3)

Estoppel

A.

Appellate decisions in Oregon recognize that under some circumstances the defendant may be equitably estopped by verbal representations or conduct from raising a statute-of-limitations defense. Donohoe v. MidValley Glass Co., 84 Or App 584, 735 P2d 11 (1987).

B.

Wrongful concealment of material facts preventing the discovery of the wrong suspends the statute of limitations until the facts are discovered or reasonably should have been discovered. Chaney v. Fields Chevrolet, 264 Or 21, 503 P2d 1239 (1972). However, mere concealment of the

STATUTE OF LIMITATIONS – DEFENSES AVOIDING APPLICATION / §72.4

legal remedy (as opposed to material facts) does not suspend the statute of limitations. Frevach Land Co. v. Multnomah Co. Dept. of Environmental Services, 2000 WL 1875893 (D Or 2000).

C.

IV.

The doctrine of estoppel depends on the defendant or its agent having done something that amounted to an affirmative inducement that would cause the plaintiff to delay bringing the action. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981).

•

To establish coverage by estoppel against an insurer, the insured must prove representation or conduct amounting to representation by someone acting on behalf of the insurer that was inconsistent with the express terms of the policy, and that the insured reasonably relied on that representation. Kabban v. Mackin, 104 Or App 422, 801 P2d 883 (1990).

•

While such circumstances more often arise in settlement negotiations, mere pendency of negotiations does not give rise to an estoppel.

Donohoe v. Mid-Valley Glass Co., supra; Johnson v. Kentner, 71 Or App 61, 691 P2d 499 (1984).

•

When an insurance agent paid for the repairs to the vehicle and the claimant’s medical bills and assured the claimant that his claim would be settled when his medical condition was established, the defendant was estopped to raise the statute as a defense. Lyden v. Goldberg, 260 Or 301, 490 P2d 181 (1971).

•

In an aerial-spraying case, the defendant was estopped to rely on the notice requirements of the spraying statute when the insurance adjuster by his silence or representation created a belief of the existence of a state of facts which it would be unconscionable to deny. Malaer v. Flying Lion, Inc., 65 Or App 154, 670 P2d 214 (1983).

(§72.4) A.

Relation Back

Under ORCP 23 C, if the statute of limitations has run at the time of filing an amended pleading, an amended pleading relates back to the date of the original pleading under the following conditions: •

When the claim or defense arose out of the conduct, transaction, or occurrence stated in the original pleading. Welch v. Bancorp Management Services, 296 Or 208, 675 P2d 172 (1983); cf. Hendgen v. Forest Grove Community Hospital, 109 Or App 177, 818 P2d 966 (1991).

•

When the amendment occurs within the same action as the original pleading. Durham v. City of Portland, 181 Or App 409, 45 P3d 998

145

STATUTE OF LIMITATIONS – DEFENSES AVOIDING APPLICATION / §72.6

(2002) (ORCP 23 C provides no basis for argument that claim asserted in one action relates back to filing of previous action).

V.

•

When an amendment changes a party, the amendment relates back if the new party received notice of the pending action within the statute of limitations, no prejudice results, and, but for a mistake of identity, the changed party knew or should have known the action would be brought against him, and the claim against the new party arose out of the conduct or occurrence set forth in the original pleading.

ORCP 23 C. See Herman v. Valley Ins. Co., 145 Or App 124, 928 P2d 985 (1996); Press v. Todd Investment Co., 98 Or App 93, 778 P2d 506 (1989).

•

If a plaintiff misnames, but correctly identifies and serves, the correct entity with a copy of the original complaint within the 60-day period allowed for service, and the entity served should reasonably understand from the complaint that it is the entity intended to be sued, then the amendment of the pleadings to correct the misnomer does not bring in a new entity and is not a change in party. Therefore, an amendment to correct a misnomer relates back as long as the claims asserted arose out of the same conduct, transaction, or occurrence set forth in the original pleading. Harmon v. Fred Meyer, 146 Or App 295, 933 P2d 361 (1997). However, ORCP 23 C does not apply to the substitution or addition of a new unrelated party after the limitations period has expired. Krauel v. Dykers Corp., 173 Or App 336, 21 P3d 1124 (2001).

B.

Notice of amendment to a new party may be constructive notice. For example, notice by service on a deputy sheriff is constructive notice to the county and relates back to the original pleading. Waybrant v.

Clackamas County, 54 Or App 740, 635 P2d 1365 (1981).

C.

An amendment to include new defendants did not relate back to the original pleading when the defendants did not receive actual or constructive notice of their inclusion in the litigation until the statute of limitations on the action against the new defendants had run. Johnson v.

MacGregor, 55 Or App 374, 637 P2d 1362 (1981).

(§72.5)

Counterclaims

Even though the applicable statute of limitations has run as of the date of filing a counterclaim, the counterclaim relates back to the date of filing the original complaint. Lewis v. Merrill, 228 Or 541, 365 P2d 1052 (1961).

VI.

146

(§72.6)

References

STATUTE OF LIMITATIONS – TOLLING / §73.2

See ACTIONS; CIVIL PROCEDURE; DISMISSAL AT TRIAL; STATUTE OF LIMITATIONS – TOLLING. STATUTE OF LIMITATIONS – TOLLING I.

(§73.1) A.

Disability. If a person entitled to bring an action is (1) younger than 18 years old or (2) insane at the time a cause of action accrues, the statute is suspended for the period of minority or insanity, except the time for bringing the action cannot be extended more than five years by the disability or extended more than one year after the disability ceases.

ORS 12.160.

•

II.

Personal Disabilities and Privileges

Using the disability to suspend the running of the statute requires that the disability exist when the right of action accrues. ORS 12.170.

B.

An infant suffering a personal injury has five years (ORS 12.160) plus the two years provided in ORS 12.110, or a total of seven years, to commence an action, Shaw v. Zabel, 267 Or 557, 559, 517 P2d 1187 (1974), unless the claim is based on medical negligence, in which case the claim must be brought within five years. ORS 12.110(4).

C.

The five-year suspension for minors and mentally handicapped persons is not lost by the commencement and subsequent dismissal of a claim by a conservator or by the appointment of a conservator. Luchini v.

Harsany, 98 Or App 217, 221, 223, 779 P2d 1053 (1989).

•

As long as the right to sue remains in the person (e.g., in personal injury cases), the appointment of a conservator does not remove the statutory extension of the statute of limitations for minors. Luchini v.

Harsany, supra, 98 Or App at 221.

•

If a minor has a claim against a public body, the notice period prescribed in ORS 30.275 is not tolled pending the appointment of a guardian ad litem. Perez v. Bay Area Hospital, 315 Or 474, 482-483, 846 P2d 405 (1993). See, however, ORS 30.275(8) if claim is against the Department of Human Services or the Oregon Youth Authority.

See also GOVERNMENTAL AND PUBLIC BODIES.

(§73.2) A.

Death

Death of Plaintiff. If a person who is entitled to bring an action dies during the time allowed for bringing the action, an action may be commenced by the personal representative after the statute of limitations has run, as long as the action is commenced within one year after the death. ORS 12.190(1).

147

STATUTE OF LIMITATIONS – TOLLING / §73.3

•

B.

III.

Death of Defendant. If a person who would be a defendant in an action dies before the statute of limitations has run, an action may be commenced against the personal representative after the statute has run, as long as the action is commenced within one year after the death.

ORS 12.190(2). See DECEDENTS’ ESTATES.

(§73.3)

Absence of Defendant

A.

If a cause of action accrues against a person when the person is out of state and service cannot be made within Oregon, or if the person is concealed within Oregon, the action can be commenced within the applicable statute of limitations after the person returns to Oregon or is no longer concealed. ORS 12.150.

B.

If a person leaves Oregon or hides in Oregon after the cause of action accrues, the statute of limitations is suspended during the time the person is absent from Oregon or the time the person remains concealed in Oregon. The time of concealment or absence will not be counted as any part of the time within which the action must be commenced.

ORS 12.150.

C.

The provisions of former ORCP 7 D(4) allowing service on the Driver and Motor Vehicles Services Division (DMV) were eliminated by amendments that were effective January 1, 1998. Under the current rule, if the plaintiff makes at least one attempt at service by any means under ORCP 7 D(3) except service by mail, and is unsuccessful, service may be made by registered, certified, or express mail on each of the following: (1) any residence address provided by the defendant at the scene of the accident; (2) the current residence address, if any, of the defendant shown in the driver records of the Department of Transportation; and (3) any other address of the defendant known to the plaintiff at the time of making the mailings that reasonably might result in actual notice to the defendant. Service is deemed complete on the latest date on which any of the required mailings is made. ORCP 7 D(4)(a)(i).

•

148

See GOVERNMENTAL AND PUBLIC BODIES; ULTIMATE REPOSE; WRONGFUL DEATH.

CAVEAT: Even though ORCP 7 no longer allows service on the DMV for a nonresident motorist or an Oregon motorist who moves out of state, the rule does provide for alternative service by mail (which is not personal service). Therefore, there is a question whether the statute of limitations would be tolled on a claim against such an absent motorist. Whittington v. Davis, 221 Or 209, 212, 350 P2d 913

STATUTE OF LIMITATIONS – TOLLING / §73.5

(1960); Wright v. Osborne, 157 Or App 446, 470, 949 P2d 321 (1997), rev den, 327 Or 448 (1998).

•

D.

IV.

V.

See MOTOR VEHICLES.

When the maker of a promissory note defaults and moves out of state after the claim has accrued, the statute is tolled during the maker’s absence from Oregon. ORS 12.080(1), 12.150; Gary M. Buford and Associates, Inc. v. Guillory, 98 Or App 691, 780 P2d 783 (1989).

(§73.4)

Advance Payments for Death, Injury, or Property Damage

A.

If, within 30 days of making the first advance payment as referred to in ORS 18.520 or 18.530, the payor gives to each person entitled to recover damages written notice of the date the limitations period expires, then the making of any such advance payment does not suspend the running of the limitations period. ORS 12.155(1).

B.

If notice is not given within 30 days of the first advance payment, the limitations period is suspended from the date of the first advance payment until the date the payor gives each person entitled to recover damages written notice of the expiration date of the limitations period.

ORS 12.155(2); Pipkin v. Zimmer, 113 Or App 737, 740-741, 833 P2d 1350 (1992) (when defendant’s insurance company paid for property damage to plaintiff’s car but failed to give notice, statute of limitations tolled).

(§73.5)

Court Actions

A.

Injunction or Statutory Prohibition. If the commencement of an action is stayed by injunction or a statutory prohibition, the statute of limitations does not run during the continuance of the injunction or prohibition. ORS 12.210(2).

B.

Bankruptcy/Debtor’s Action. 11 USC §108(a)-(b) permit the trustee, stepping into the debtor’s shoes, an extension of time for filing an action or doing some other act required to preserve the debtor’s right.

•

The statute of limitations or the time period fixed by a nonbankruptcy order or agreement is extended for the commencement or continuation of an action by the debtor (trustee) for two years after the date of the order for relief, unless the fixed period would expire after two years from the order of relief. 11 USC §108(a).

•

11 USC §108(b) gives the trustee an extension of 60 days from the date of the order for relief within which the trustee may file any pleading, demand, notice, proof of claim, loss, or cure a default or perform any other similar act, such as filing an insurance claim, or any action not covered by 11 USC §108(a). If the period for doing

149

STATUTORY LIENS / §74.2

the act expires after 60 days from the date of the order for relief, the date of expiration of the time otherwise allowed for performing the action applies. 11 USC §108(b).

C.

Bankruptcy/Creditor’s Action. The statute of limitations for creditors is extended by 11 USC §108(c).

•

The creditor is given an additional 30 days after notice of termination or expiration of the automatic stay if the statute of limitations runs while the stay is in effect. An event that could result in the termination or expiration of the stay could include relief from the automatic stay under 11 USC §362 or §1302, dismissal of the petition, or the date the debt on which the creditor bases its claim is excepted from discharge. 11 USC §108(c).

•

The creditor must bring its action against the debtor within the later of the 30-day extension or expiration of the statute of limitations period on the creditor’s claim. 11 USC §108(c).

•

11 USC §108(c) applies to chapters 7, 11, 12, and 13 bankruptcies.

•

The period for giving notice of a claim of lien for a statutory lien against the debtor is not suspended or extended by the debtor’s filing of a bankruptcy petition. 11 USC §546(b).

STATUTORY LIENS

I.

II.

(§74.1) A.

A lien attaches to the agricultural produce, inventory, proceeds, or accounts receivable on the date the agricultural producer delivers or transfers physical possession of the produce to the purchaser or the purchaser’s agent. ORS 87.705(1).

B.

The lien continues for 45 days after final payment is originally due, ORS 87.710, and it is not necessary to file a notice of that lien. ORS 87.705(2). The lien can be extended for 225 days after payment is originally due if the producer files a notice of lien with the Secretary of State before the 45-day period expires. ORS 87.710.

C.

The lien expires unless suit to foreclose is brought within 45 days after the date final payment is originally due or, if the producer extends the lien by filing a notice of lien under ORS 87.710, within 225 days after the date final payment is originally due. ORS 87.730.

(§74.2) A.

150

Agricultural Lien

Employee Benefit Plan

An employer who must contribute to a fund for an employee benefit plan must pay the required amounts at the stipulated time or each employee

STATUTORY LIENS / §74.4

will have a lien on earnings and property used in the business up to the amount owed. ORS 87.855(1).

III.

IV.

B.

A lien claimant or trustee of the employee benefit fund must file a notice of claim for recording with the county clerk within 60 days after the last delinquent payment becomes due. The claimant must also deliver in person or by registered mail a copy of the notice to the employer within 60 days after the last delinquent payment is due. ORS 87.860(1).

C.

Any complaint enforcing such a lien must be filed within six months from the date of filing the lien claim. ORS 87.865(3).

(§74.3)

Grain Producer’s Lien

A.

A grain producer that delivers or transfers grain for consideration has a lien on all the purchaser’s grain and the proceeds from selling that grain.

ORS 87.755(1). The lien attaches on the date that physical possession of the grain is delivered or transferred to the purchaser or the purchaser’s agent. ORS 87.755(2).

B.

The lien continues for 180 days from the date of attachment, ORS 87.762(1), and it is not necessary to file a notice of that lien.

ORS 87.755(4). The lien can be extended for 18 months from the date the lien attaches if the grain producer files a notice of lien with the Secretary of State before the 180-day period expires. ORS 87.762.

C.

A lien on grain is discharged when the grain is sold to a third party, but the lien on the proceeds from the sale and on the remaining grain continues. ORS 87.755(6).

D.

The lien expires unless suit to foreclose is brought within 180 days from attachment if the lien has not been properly extended, or within 18 months of the date of attachment if the lien has been extended by filing notice. ORS 87.772(1).

E.

After full payment for the grain, a grain producer who has filed a notice of lien under ORS 87.762 must file a certificate with the Secretary of State within 10 days after it is requested or be liable to the purchaser for $100 in damages plus actual damages. ORS 87.777(3).

(§74.4)

Hospital’s Lien

A.

A hospital has a lien on any judgment, award, settlement, or compromise awarded to an injured person for services performed on behalf of the injured person before the date of a judgment, award, settlement, or compromise in a court case brought by the injured person. ORS 87.555(1).

B.

A lien is perfected by filing a notice of lien within 30 days of the injured person’s discharge and by serving the required parties. ORS 87.565.

151

SUMMARY JUDGMENT / §75.2

•

V.

VI.

A notice of lien filed one day late was acceptable to support a judgment in favor of the hospital. The 15-day requirement is not jurisdictional. Rogue Val. Mem. Hosp. v. Salem Ins., 265 Or 603, 510 P2d 845 (1973).

C.

No lien under ORS 87.555(1) is allowed for hospitalization or treatment from a physician rendered after a settlement. The lien is not allowed against attorney fees, costs, or expenses incurred by the injured party in securing the settlement, compromise, award, or judgment.

D.

A cause of action under ORS 87.581(1) must be commenced within 180 days after the payment is made. ORS 87.581(2).

(§74.5)

Physician’s Lien

A.

A physician treating an injured person has a lien on any subsequent recovery of damages by the injured person from any judgment, award, settlement, or compromise. ORS 87.555(1). A lien is perfected by filing a notice of lien within 30 days of the injured person’s discharge from the hospital and by serving the required parties. ORS 87.565.

B.

No lien under ORS 87.555(1) is allowed for hospitalization or treatment from a physician rendered after a settlement. The lien is not allowed against attorney fees, costs, or expenses incurred by the injured party in securing the settlement, compromise, award, or judgment.

C.

A cause of action under ORS 87.581(1) must be commenced within 180 days after the payment is made. ORS 87.581(2).

(§74.6)

References

See ATTORNEY’S LIEN AND FEES; CONSTRUCTION LIENS. See generally CREDITORS’ RIGHTS AND REMEDIES ch 3 (Oregon CLE 2002).

SUMMARY JUDGMENT I.

II.

152

(§75.1)

Motion

A.

A claimant seeking to recover on a claim, counterclaim, or cross-claim may file and serve a motion for summary judgment any time after 20 days from the commencement of the action or after service of a motion for summary judgment by an adverse party. ORCP 47 A.

B.

A defendant may file and serve a motion for summary judgment any time after commencement of the action. ORCP 47 B.

C.

The motion for summary judgment must be filed and served at least 45 days before the date set for trial. ORCP 47 C.

(§75.2)

Opposition to Motion

SURETIES / §76.2

III.

IV.

A.

The adverse party must file and serve opposing affidavits and supporting documents within 20 days. ORCP 47 C.

B.

The moving party must reply within five days. ORCP 47 C.

(§75.3)

Generally

A.

The court has discretion to modify all of the foregoing. ORCP 47 C.

B.

If an action involves multiple claims or multiple parties, a summary judgment may not constitute a final judgment if not entered in compliance with ORCP 67 B. ORCP 47 H.

(§75.4)

References

See generally 1 CIVIL LITIGATION MANUAL ch 11 (Oregon CLE 1993 & Supp 1999); 2 OREGON CIVIL PLEADING AND PRACTICE ch 43 (Oregon CLE 1994 & Supp 2001).

SURETIES I.

II.

(§76.1)

Objection and Discharge

A.

A party who is not satisfied with the sufficiency of the issuers or the sureties may object by serving notice of the objection on the party giving the letter of credit or bond within 10 days after receiving a copy of the letter of credit or bond. ORCP 82 F.

B.

A surety may apply to the court for discharge from liability by giving personal notice of the application to the principal not less than five days before the date the application is to be made. ORS 33.510.

C.

The court may order the principal to account for all acts and proceedings within a time not to exceed 20 days. ORS 33.510.

D.

The principal may apply for discharge of the surety by giving notice not less than 10 days before the date on which the application is to be made.

ORS 33.520.

(§76.2)

Limitation of Action

A.

The court applied the six-year statute of limitations for a surety’s contract with a principal rather than the two-year statute of limitations for common law fraud when a surety was found liable under a “blue sky bond” for the tortious acts of a principal. United Pac. Ins. Co. v.

Stanford, 486 F2d 556 (9th Cir 1973).

B.

Subject to the terms of a suretyship agreement, a cause of action against a surety accrues when the principal defaults. 13 Op Att’y Gen 197 (Or 1926-1928); Chada v. Tapp, 277 Or 3, 8, 558 P2d 1225 (1977).

153

SURVIVAL OF ACTIONS / §77.2

C.

Any claim asserted against a surety, regardless of its validity or relevance to the bond, triggers the obligation of the principal to indemnify the surety. Fireman’s Fund Ins. Co. v. Nizdil, 709 F Supp 975 (D Or 1989).

D.

When an involuntary suretyship relationship was found to exist, the surety’s claim accrued upon payment of the indebtedness for which the principal was primarily liable. Twombley v. Wulf, 258 Or 188, 482 P2d 166 (1971).

SURVIVAL OF ACTIONS

I.

(§77.1) A.

II.

A cause of action survives to the personal representative on the death of either the plaintiff or the defendant if the cause of action existed at the time of death. ORS 115.305; Rice v. Terwilliger Plaza, Inc., 65 Or App 74, 670 P2d 188 (1983).

•

A proceeding to terminate a marriage does not survive the death of one of the parties. Bauman v. Clark, 203 Or 193, 272 P2d 214 (1954).

•

A right of contribution between two debtors does not survive the death of one debtor because the estate would not benefit. Bonner v.

Arnold, 296 Or 259, 676 P2d 209 (1984).

B.

Procedure. If a claim survives the death of the defendant, the plaintiff must first present a claim against the defendant’s estate before filing a civil suit against the personal representative. ORS 115.325; Meissner v.

Murphy, 58 Or App 174, 647 P2d 972 (1982). See ORS 115.005(5)(b) (limits ORS 115.325 to actions not covered by insurance). See also DECEDENTS’ ESTATES.

C.

See also STATUTE OF LIMITATIONS – TOLLING; WRONGFUL DEATH.

(§77.2) A.

Personal Injury Actions

Plaintiff’s Death. A cause of action arising out of injuries to a person caused by an act or omission of a wrongdoer survives the death of the injured person, and the personal representative of the injured person may maintain an action against the wrongdoer. ORS 30.075(1).

•

154

Generally

If commenced before the death of the injured person, the action must be brought within the two-year statute of limitations of ORS 12.110.

If commenced after death by the personal representative, the action must be brought within three years. ORS 30.075(1).

TIME COMPUTATIONS / §79.1

•

III.

If a person entitled to bring an action dies before the time for commencing the action has run, the action must be commenced by the plaintiff’s personal representative within one year after the plaintiff’s death. ORS 12.190(1).

B.

Defendant’s Death. A cause of action for injury or death survives the death of the wrongdoer, but if a wrongdoer dies before the time has run for commencing an action for injury or death against the wrongdoer, an action must be commenced against the wrongdoer’s personal representative after the time has run and within one year of the wrongdoer’s death. ORS 12.190(2).

C.

Public Officers. An order of substitution may be entered at any time after the death of a party who is a public officer. ORCP 34 F(1).

(§77.3)

References

See generally 2 TORTS ch 29 (Oregon CLE 1992 & Supp 1996).

TENDER AND RECEIPT I.

II.

(§78.1)

Generally

A.

A written offer to deliver money, written instruments, or specific personal property is equal to the actual tender and production of the money, instrument, or property when the offer is not accepted.

ORS 81.010. (ORS 81.010 does not relate to the timeliness of payment but to what is a tender. Gordon v. Schumacher, 83 Or App 544, 733 P2d 35 (1987).)

B.

A person delivering money, an instrument, or property is entitled to a receipt on demand. A proper receipt may be a condition to payment or delivery. ORS 81.030.

(§78.2)

Objection

An objection to a tender must be specified when the tender is made or the objection is waived. ORS 81.020.

TIME COMPUTATIONS I.

(§79.1)

Method of Computation (ORCP 10, ORS 174.120, or Other Rule)

An attorney must first determine the applicable method of time computation.

Many statutes contain specific methods of time computation, and the specific method must be used instead of the general methods described below.

155

TIME COMPUTATIONS / §79.2

II.

•

Civil procedure and practice in all circuit courts, except in small claims departments, are governed by the Oregon Rules of Civil Procedure.

ORCP 1 A. ORCP 10 A specifies the method of computing any time period “prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute.” ORCP 10 also applies to any time period prescribed by the Uniform Trial Court Rules. UTCR 1.130.

•

All civil and criminal procedure statutes use the method of time computation outlined in ORS 174.120.

•

Neither ORCP 10 nor ORS 174.120 applies to statutes of limitations that are substantive conditions precedent to completing an action.

(§79.2) A.

Do not count the day of the act, event, or default from which the period of time for the action begins to run. ORCP 10 A.

B.

Generally, count intermediate Saturdays and legal holidays, including all Sundays. ORCP 10 A. (“Legal holidays” is defined in ORS 187.010 and 187.020 to include each Sunday, nine specific holidays, and other days so designated by the governor.)

•

C.

D.

If the period of time for the action is fewer than seven days, exclude intermediate Saturdays and legal holidays, including Sundays.

ORCP 10 A.

Count the last day of the period of time for the action unless it is a Saturday or legal holiday. (Legal holidays include Sundays. See §79.2 B, supra.) If the period of time for the action ends on a Saturday or legal holiday, the last day for the action is the next day that is not a Saturday or legal holiday. ORCP 10 A. •

156

ORCP 10

EXAMPLE: A motion or an answer to a complaint must be filed with the court clerk within 30 days after the summons and complaint are served. ORCP 7 C(2), 15 A. If the defendant is served with the complaint on Friday, December 20, 2002, the first day to count to compute the period of time for appearance by the defendant is Saturday, December 21, 2002, and every day, including Saturdays, Sundays, and other legal holidays, is counted for 30 days. The 30th day is Sunday, January 19, 2003. It is counted as the 30th day, but the period of time for the action does not expire until the next business day. The last day on which the defendant can file a motion or answer to the complaint is Monday, January 20, 2003. See, e.g., Minor v.

Leisure Lodge, Inc., 154 Or App 301, 961 P2d 915 (1998).

Closed Public Office. If the time period relates to serving a public officer or filing a document at a public office, and the last day of the period falls

TIME COMPUTATIONS / §79.3

on a day when the office is closed before the end of the normal workday or when the office is closed all day, do not count the last day. The period of time for the action expires at the close of office hours on the next day on which the office is open for business. ORCP 10 A; ORS 174.125.

E.

III.

Service. Except for service of summons, whenever the period of time for the action begins to run from the service of notice or other paper on a party, and the notice or paper was served by mail, add three days to the period of time for the action. ORCP 10 C.

(§79.3) •

ORS 174.120 EDITOR’S NOTE: At the time of publication of this handbook, April 2003, SB 42 was pending in the legislature. SB 42 proposed an amendment to ORS 174.120 that would clarify the computation of time in a leap year.

A.

Do not count the first day. ORS 174.120.

B.

Count the last day unless it falls (1) on any legal holiday; (2) on Saturday; (3) on a day on which the court is closed for the purpose of filing pleadings and other documents; (4) on a day on which the court is closed by order of the Chief Justice, to the extent provided by the order; or (5) on a day on which the court is closed before the end of the normal hours during which any pleadings and other documents may be filed.

Exclude the last day if it falls on one of the days in (1) – (5) above. ORS 174.120. Count intermediate Saturdays and legal holidays.

•

C.

EXAMPLE: The trial court entered judgment against a plaintiff on August 30, 1990. The plaintiff moved for a new trial. The trial court did not act on the plaintiff’s motion before 11:59:59 P.M. on the 55th day (October 24) after the judgment was entered, so the motion was “deemed denied” on the next day (October 25). ORCP 64 F. The day of the event, October 25, was not counted among the 30 days allowed for certified mailing of the notice of appeal. ORCP 10 A. Thus, the 30th day to file was Saturday, November 24. Saturday and Sunday are excluded under ORS 174.120, so the plaintiff’s certified mailing of the notice of appeal on Monday, November 26, was timely. Propp v. Long, 313 Or 218, 831 P2d 685 (1992).

Application and Case Law. ORCP 10 does not apply to any time limitations governed by ORS 174.120.

•

ORS 174.120 applies to proceedings arising under Article IV, §6 of the Oregon Constitution. In re Legislative Apportionment, 228 Or 575, 577 & n 2, 365 P2d 1042 (1961).

157

TIME COMPUTATIONS / §79.4

D.

IV.

•

ORS 174.120 applies to the 10-day grace period in ORS 91.090 for rent payment. Locus Bldg. Partnership v. Gladys Ent., 62 Or App 792, 796, 662 P2d 15 (1983).

•

The time for a criminal statute of limitations starts to run on the day after the offense is committed. ORS 131.145(1). ORS 174.120 does not require that an additional day be added to the date from which the calculation of a criminal statute of limitations begins to run. State v.

Chatfield, 148 Or App 13, 19, 939 P2d 55 (1997).

•

ORS 174.120, but not ORCP 10, applies to civil statutes of limitations set forth in ORS 12.010. In Stupek v. Wyle Laboratories Corp., 327 Or 433, 963 P2d 678 (1998), the court held that a wrongful discharge claim filed on Monday, October 31, 1994, for a termination effective October 30, 1992, was timely filed because the end of the two-year statute of limitations fell on a Sunday. The court in Stupek, supra, 327 Or at 444, held that statutes of limitations under ORS 12.010 were “civil procedure statutes” within the meaning of ORS 174.120. This holding appears to be at odds with the reasoning in City of Springfield v. $10,000.00 in U.S. Currency, 95 Or App 66, 767 P2d 476 (1989), aff’d, 309 Or 272 (1990) in which the court held that because the statute of limitations was “substantive,” ORCP 10 did not apply to the requirement in the forfeiture ordinance that a complaint be brought within 20 judicial days after seizure of the property.

Oregon Tort Claims Act. Neither ORCP 10 nor ORS 174.120 applies to the requirement that notice of a claim under a provision of the Oregon Tort Claims Act, ORS 30.275, be filed within (1) one year after the alleged loss or injury for wrongful death claims and (2) 180 days after the alleged loss or injury for all other claims. The court of appeals so held in Tyree v. Tyree, 116 Or App 317, 840 P2d 1378 (1992), reasoning that the one-year limit applicable at the time was a substantive condition precedent to recovery, not a procedural requirement. Thus, the court held that notice received on a Monday was untimely because Saturday was the last day of the time period.

(§79.4)

ORS 174.125

Notwithstanding ORCP 10 and ORS 174.120, if a time period relates to the personal service or filing of a document or notice with a public office, other than a time period subject to ORS 174.120, and the last day falls on a day when that office is closed before the end of the day or for all of the normal workday, the last day is excluded, and the time period runs until the close of office hours on the next day on which the office is open for business. ORS 174.125.

158

TIME COMPUTATIONS / §79.6

•

V.

Unlike ORS 174.120, this statute is not limited on its face to “procedure” statutes. In Tyree v. Tyree, 116 Or App 317, 319, 840 P2d 1378 (1992), the court, without considering ORS 174.125, held untimely a notice of claim received on Monday, September 11, 1989, relating to an accident that occurred on September 9, 1988, because the one-year limit had expired over the weekend. However, if the county office was closed on Saturday, September 9, and Sunday, September 10, ORS 174.125 would seem to dictate the opposite result.

(§79.5)

ORS 187.010(3)

Any act authorized, required, or permitted to be performed on a holiday may be performed on the next succeeding business day, and no liability or loss of rights of any kind will result from the delay. ORS 187.010(3). The broad language of this provision seems to cover all periods of time, but there is little case law applying it.

•

VI.

In First Nat. Bank v. Mobil Oil, 272 Or 672, 679, 538 P2d 919 (1975) (en banc), the court held that the successor of this provision extended “to acts to be performed as provided by contracts, so as to permit the performance of such acts upon the ‘next succeeding business day,’ at least unless the contract specifically designates a Sunday as the day on which an act must be performed or as the last day on which the act may be performed.”

(§79.6) A.

Other Units of Time

The general rule for the computation of time (i.e., exclude the first day and include the last day unless the last day is a Saturday or legal holiday) applies equally to periods of time measured in days, weeks, months, or years. Grant v. Paddock, 30 Or 312, 47 P 712 (1897).

•

However, a time limitation allowing action up to and including a specified date expires on that date even if it is a Sunday or other legal holiday. Zelig v. Blue Point Oyster Co., 61 Or 535, 113 P 852, 122 P 757 (1912).

B.

Month. When not defined by statute, “the word [month] is uniformly held to mean a calendar month, unless a contrary intent is indicated.” In re Standard Cafeteria Co., 68 Or 550, 555, 137 P 774 (1914).

C.

Year. “The word year, as used in statutes or constitutions, ordinarily means calendar year, but the meaning in all cases is dependent on the subject-matter and the connection in which the word is used.” State ex rel. Stadter v. Patterson, 197 Or 1, 18, 251 P2d 123 (1952) (emphasis added).

•

However, in Kirk v. Rose, 218 Or 593, 599, 346 P2d 90 (1959), overruled in part on other grounds by First Federal v. Gruber, 290

159

TORT OR CONTRACT / §80.1

Or 53, 58 & n 8, 618 P2d 1265 (1980), the court stated that redemption of real property under ORS 23.560 and 23.570 must be performed within one year or 365 days. (Note: The current redemption provisions require redemption within 180 days.) The court of appeals subsequently applied Kirk to hold that for the purposes of ORS 23.560 a year is 365 days, even though the calendar year in question was a leap year. Federal Land Bank of Spokane v.

Glenn, 100 Or App 262, 785 P2d 1069 (1990).

VII.

•

A year may also be 365 days for the purposes of criminal statutes of limitations. State v. Chatfield, 148 Or App 13, 20, 939 P2d 55 (1997) (describing 366 days as “a year and a day, not a year”).

•

EDITOR’S NOTE: At the time of publication of this handbook, April 2003, SB 42 was pending in the legislature. SB 42 proposed an amendment to ORS 174.120 that would clarify the computation of time in a leap year. For up-to-date information, check the legislative history.

(§79.7)

Amendments

The legislature amended ORCP 10, ORS 174.120, and ORS 174.125 in February 2002. See 2002 Or Laws 1st Special Session, ch 10, §§6, 9-10 (SB 1006), effective February 25, 2002. The above text incorporates those amendments.

TORT OR CONTRACT I.

(§80.1)

General Rule

[“T]he gravamen or the predominant characteristics” of an action, not the plaintiff’s election of remedies, determines whether the tort or contract statute of limitations applies. Lindemeier v. Walker, 272 Or 682, 685, 538 P2d 1266 (1975). The issue of which statute of limitations applies arises “only where a defending party challenges the timeliness of an action on a contract theory brought after ‘the first two years.’” Metropolitan Property & Casualty v.

Harper, 168 Or App 358, 368-69, 7 P3d 541 (2000) (quoting SecuritiesIntermountain v. Sunset Fuel, 289 Or 243, 258-59, 611 P2d 1158 (1980)).

•

160

In Securities-Intermountain v. Sunset Fuel, supra, the Oregon Supreme Court explained that, to determine the predominant characteristic of a given action, the court should examine factors such as the legal source of the defendant’s liability, the factual setting of the dispute, the injuries asserted by the plaintiff, and the plaintiff’s claimed measure of damages. SecuritiesIntermountain v. Sunset Fuel, supra.

TORT OR CONTRACT / §80.3

II.

(§80.2)

Analysis

The case of Securities-Intermountain v. Sunset Fuel, 289 Or 243, 611 P2d 1158 (1980) is the leading Oregon decision on the issue of whether an action is governed by the six-year period of limitations for contracts set forth in ORS 12.080 or by the general two-year statute of limitations governing torts, which is set forth in ORS 12.110. In that case, the assignee of a general contractor instituted an action against an architect and a heating contractor for installing an allegedly defective heating system. The court embarked on a historical review of the two limitations periods now codified as ORS 12.080 and 12.110, respectively. After determining that the special two-year statute set forth in ORS 12.135 (governing injuries to persons or property from construction, alteration, or repair of improvement to real property) was inapplicable, the court turned to the task of distinguishing contractual and noncontractual obligations, noting that the two may overlap.

III.

•

The court held that if a contract merely incorporates by reference or implication a general standard of skill and care to which the defendant would be bound irrespective of the contract, and the alleged breach also would be a breach of this noncontractual duty, then the two-year period of ORS 12.110 applies. Conversely, if the parties have specified in their contract the defendant’s duties without reference to and independent of any general standard, the six-year period of ORS 12.080 applies. In the latter case, the court noted that the defendant would be liable for a breach of contract whether or not he or she was negligent, and regardless of facts that might excuse him or her from tort liability. Securities-Intermountain, supra, 289 Or at 259. See also, Metropolitan Property & Casualty v. Harper, supra, 168 Or App at 369.

•

The court then analyzed the contract between the architect and the general contractor, which spelled out the obligations of the architect in considerable detail, and found that it was Aexactly the kind of contract that is designed not to leave the scope of expected professional services to tort standards of professional performance.” Although the contract with Sunset Fuel was less comprehensive, the court found the allegations of the complaint sufficient to state contract claims against Sunset Fuel as well. SecuritiesIntermountain v. Sunset Fuel, supra.

•

In McCraw v. Stapp, 82 Or App 79, 727 P2d 160 (1986), the two-year statute of limitations for tort actions applied when the gravamen of the complaint was for fraud, although some of the claims were for restitution.

(§80.3)

Case Law

The Oregon appellate courts have addressed the tort-versus-contract statute-oflimitations issue in a multitude of opinions dating back to the early 1900s.

161

TORT OR CONTRACT / §80.3

Summarized below is a sampling of some of the more recent decisions in this area.

162

A.

Zehr v. Haugen, 318 Or 647, 871 P2d 1006 (1994). The plaintiffs, a married couple, sued their doctor and hospital for failing to perform a tubal ligation on the wife, who subsequently became pregnant and bore a child. The court held that the complaint stated causes of action for both tort and contract, because the plaintiffs had alleged the requisite elements of medical malpractice, and the tubal ligation was a contracted-for procedure.

B.

Georgetown Realty v. The Home Ins. Co., 313 Or 97, 831 P2d 7 (1992).

The plaintiff brought an excess claim against its insurer, alleging that the insurer failed to defend a lawsuit against the plaintiff with reasonable care and to settle the action within policy limits. The insurer asserted that its duties to the plaintiff insured were solely contractual. After reviewing a series of cases involving tort actions against attorneys, doctors, engineers, and real estate brokers, the court concluded that, even though the relationship between the parties arose from a contract, the insurer owed a standard of care to the plaintiff independent of the contract.

Accordingly, the plaintiff’s excess claim was actionable negligence.

C.

Hale v. Groce, 304 Or 281, 744 P2d 1289 (1987). The plaintiff stated a tort claim against the attorney who drafted a will that failed to accomplish the testator’s objective of including a gift to the plaintiff.

Lacking a written contract to analyze, the court remanded the plaintiff’s contract claim to determine whether the plaintiff could adduce proof sufficient to demonstrate a contractual promise more specific than the defendant’s general duty to use his professional skills.

D.

Cabal v. Donnelly, 302 Or 115, 727 P2d 111 (1986). The purchasers’ action against the builder for implied warranty of habitability sounded in contract, because the warranty established not only the standard of workmanship to be employed, but also the expected quality of the finished homeCthe subject matter of the contract.

E.

Fessler v. Quinn, 143 Or App 397, 923 P2d 1294 (1996). Noting that the same facts can give rise to both a contract theory and a tort theory, the court upheld the homeowners’ negligence claim against the home inspector; the duty to perform the inspection in a workmanlike manner was not a contractual obligation, but a standard independent of the contract.

F.

Allen v. Lawrence, 137 Or App 181, 903 P2d 919 (1995). The court upheld a breach of contract claim against some attorneys when they

TRADE AND ANTITRUST PRACTICES / §81.1

purportedly made an explicit promise to produce a particular result, that is, to have the client’s case reinstated.

G.

Dauven v. St. Vincent Hospital, 130 Or App 584, 883 P2d 241 (1994), subsequent appeal and remand on other grounds, 144 Or App 363 (1996). Despite the fact that the plaintiffs sought tort damages in their action against a hospital, the court allowed the plaintiffs to proceed on a contract theory, when the plaintiffs alleged an agreement that Aspelled out” the hospital’s duties.

H.

South Lake Center v. Waker Associates, Inc., 129 Or App 581, 879 P2d 1342 (1994). The assignee of a contractor sued a subcontractor for breach of contract and negligence. Applying the SecuritiesIntermountain methodology, the court compared the allegations of the complaint with the language of the contract, concluding that two of the claims were contractual and two were not.

I.

Jaqua v. Nike, Inc., 125 Or App 294, 865 P2d 442 (1993). The plaintiff claimed that defendant Nike used plaintiff’s product idea without compensating him; Nike asserted that the gist of the claim was tortious misappropriation and that it was barred by the applicable two-year statute of limitations. Based on the allegations of the plaintiff’s complaint, the court found that the plaintiff could proceed on both implied contract and quasi-contract theories, and thus his action was not time-barred.

J.

Serles v. Beneficial Oregon, Inc., 91 Or App 697, 756 P2d 1266 (1988).

The plaintiffs borrowed money from the defendant to buy a truck and alleged that the defendant agreed in the loan contract to provide insurance for the truck. Finding the contract ambiguous, the court ruled that it was improper for the trial court to have granted the defendant’s motion to dismiss the contract claim. The court, however, upheld the dismissal of the plaintiffs’ negligence claims, finding that the defendant owed no duty of care apart from its contractual obligations and rejecting the “plaintiffs’ suggestion that every breach of contract or failure to discuss a contract term is negligence.”

TRADE AND ANTITRUST PRACTICES

I.

(§81.1) A.

Unlawful Trade Practices

Public Prosecution. On probable cause, a prosecuting attorney may bring an action against a person alleged to be engaged in an unlawful trade practice in order to restrain the practice. ORS 646.632(1).

163

TRADE AND ANTITRUST PRACTICES / §81.2

II. 164

•

The prosecutor must notify and serve the person with the charge and the relief sought in writing. ORS 646.632(2).

•

The person charged must execute and deliver an assurance of voluntary compliance within 10 days of service. The notice is deemed public record 10 days from the date of service. ORS 646.632(2).

•

If the voluntary assurance requires payment of money, the lump sum payment must be made within 90 days of court approval of the assurance, and periodic payment must be made within 30 days of the date specified. The unpaid balance becomes a civil judgment in favor of the state. ORS 646.632(2).

•

A temporary restraining order (TRO) may be granted without prior notice if the court finds a threat of immediate harm to public health, safety, or welfare. Unless extended, the TRO may not exceed 10 days. ORS 646.632(7).

B.

Investigative Demand/Public Prosecution. The prosecutor may make demand for production or testimony on any person with relevant information when investigating a claim for unlawful trade practices. The demand must be answered and returned by the date stated in the demand.

The return date may be extended by a petition filed in court before the return date or within 20 days after the demand is served, whichever is earlier. ORS 646.618(2).

C.

Private Action. Any person who suffers an ascertainable loss under the requirements of ORS 646.608 or 646.648 may bring an action to recover $200 or actual damages, whichever is greater. The term ascertainable loss is a jurisdictional element and should not be confused with actual damages, which may include emotional injury. Creditors Protective Assoc., Inc. v. Britt, 58 Or App 230, 234, 648 P2d 414, 416, (1982). An action based on an unlawful trade practice must be commenced within one year from the discovery of the unlawful practice. ORS 646.638(6).

•

When an unlawful practice is followed by additional representations or assurances tending to discourage a plaintiff’s investigation into the unlawful practice, the one-year limitation period begins to run from the time of these later representations or assurances. McCulloch v.

Price Waterhouse LLP, 157 Or App 237, 971 P2d 414 (1998), rev den, 328 Or 365 (1999).

•

The statute of limitations for private actions is suspended by the filing of a complaint by the state to restrain or punish the unlawful trade practice. ORS 646.638(6).

(§81.2)

Unlawful Debt Collection Practice

TRADE AND ANTITRUST PRACTICES / §81.4

A.

Any person injured as the result of willful use or employment by another person of an unlawful debt collection practice may bring an action to enjoin the practice, or to recover actual damages or $200, whichever is greater. ORS 646.641(1).

B.

An action on an unlawful debt collection practice must be commenced within one year from the date of injury. ORS 646.641(3).

C.

III.

IV.

•

However, when an action is initiated by a seller or lessor, the defending purchaser or lessee may assert by counterclaim an unlawful collection practice regardless of the limitations period.

ORS 646.638(7).

•

When a defendant’s unlawful trade practice is followed by cover-up attempts in the nature of an unlawful debt collection practice, the date of the latter wrong controls for purposes of the limitations period.

Bennett v. Reliable Credit Assn., Inc., 125 Or App 531, 535, 865 P2d 496 (1993).

Federal Law. An action under the Federal Fair Debt Collection Practices Act must be brought within one year from the date on which the violation occurred. 15 USC §1692k(d).

(§81.3)

Antitrust Law

A.

The attorney general may make demand on any person with relevant information for production or testimony when investigating a claim for antitrust practices. ORS 646.750(1). At any time before the specified return day, or within 20 days after the demand has been served, whichever time is shorter, either the completed demand must be returned to the attorney general, or a petition must be filed to extend the return date or to modify or set aside the demand. ORS 646.750(1)-(2).

B.

An action by the attorney general for a civil penalty of up to $250,000 per violation [ORS 646.760(1)] must be commenced within four years after the cause of action accrued or within one year after the conclusion of any civil or criminal proceeding brought by the United States.

ORS 646.760(1); ORS 646.800(1).

C.

A person, including the state or any political subdivision, may recover treble damages for violations of ORS 646.725 or ORS 646.730 if a lawsuit is commenced within four years after the cause of action accrued or within one year after the conclusion of any proceeding by the United States under federal antitrust laws or by the state under certain state antitrust laws. ORS 646.800(2).

(§81.4)

Franchise Transactions

165

TRIAL PROCEEDINGS / ยง82.3

A buyer must commence an action against a franchise seller who violates ORS 650.020 within three years after the sale of the franchise. ORS 650.020(6).

V.

(ยง81.5)

References

See generally 3 ADVISING OREGON BUSINESSES ch 58 (Oregon CLE 2003); CONSUMER LAW IN OREGON ch 4 and ch 23 (Oregon CLE 1996 & Supp 2000).

TRIAL PROCEEDINGS I.

II.

(ยง82.1) A.

A party challenging the jury panel selection pursuant to ORS chapter 10 must challenge the selection process within seven days after the party discovered or, by the exercise of due diligence, could have discovered the grounds for challenge. ORCP 57 A(1).

B.

The challenge of the selection of the jury must be made before the jury is sworn. ORCP 57 A(1).

(ยง82.2)

A party must request special findings of fact before trial. ORCP 62 A.

B.

Any party may object to special or proposed findings by the court. A request for additional findings must be filed within 10 days after service of the special or proposed findings by the court. ORCP 62 B. If the court does not hear and determine the objection or request within 30 days, the objection or request is conclusively deemed to be denied. ORCP 62 B.

C.

A judgment or order filed before the expiration of the time period allowed for objections or requests is deemed not entered until the time period expires. ORCP 62 C.

D.

The court may extend or lessen the time to object to findings or to request additional findings up to 30 days if the request is filed before the above time periods expire. ORCP 62 B, 62 D.

(ยง82.3) A.

166

Special Findings

A.

โ ข

III.

Jury Selection: Civil

Judgment N.O.V. or New Trial

A motion for judgment notwithstanding the verdict (judgment n.o.v.) or a motion to set aside a judgment and for a new trial must be filed within 10 days of the entry of the judgment or such further time as the court may allow. If the court does not hear and determine the motion within 55 days from the date the judgment is entered, the motion is deemed conclusively denied. ORCP 63 D, 64 F.

TRUSTS / §83.2

B.

A party whose verdict has been set aside on a motion for judgment n.o.v. may serve a motion for a new trial pursuant to ORCP 64 not later than 10 days after the judgment n.o.v. is filed. ORCP 63 F. •

IV.

NOTE: A motion for a new trial must be made within this 10-day period or the appeal period will not be tolled. Schmidling v. Dove, 65 Or App 1, 670 P2d 166 (1983).

C.

Counteraffidavits must be filed within 10 days after the motion is filed or such further time as the court may allow. ORCP 64 F.

D.

When a party files a motion for judgment n.o.v. but does not move, in the alternative, for a new trial, the party waives the opportunity to file a motion for a new trial. ORCP 63C.

E.

An order granting a new trial on the court’s own motion must be made within 30 days after the judgment is entered. ORCP 64 G.

(§82.4)

References

See UNIFORM TRIAL COURT RULES. TRUSTS I.

(§83.1) A.

Negligence of Trustee. The two-year statute of limitations in ORS 12.110 applies to an action for negligence brought against a trustee by a beneficiary of a trust agreement. Condon v. Bank of California, 92 Or App 691, 759 P2d 1137 (1988).

•

II.

Generally

The cause of action accrues when the negligence is or reasonably should have been discovered by the plaintiff. Condon v. Bank of California, supra.

B.

A beneficiary may be barred by laches from holding the trustee liable for breach of trust. Lulay v. Lulay, 247 Or 497, 429 P2d 802 (1967).

C.

An action against a trustee of an express trust, whether in contract, tort, or otherwise, arising from the breach of a duty must be commenced within six years from the date the act or omission on which the claim is based occurred, or six years from the date the act or omission should have been discovered. A statute of ultimate repose applies to an action against a trustee: 10 years from the date of the act or omission complained of, or two years from the termination of any fiduciary account established under the trust, whichever is later. ORS 12.274.

(§83.2)

Constructive Trust

167

ULTIMATE REPOSE / §84.1

III.

A.

When the court impresses a constructive trust, the court applies the limitations statute for an analogous law to determine whether the trust is barred by laches. Albino v. Albino, 279 Or 537, 568 P2d 1344 (1977).

B.

The analogous statute of limitations of six years for commencing an action on an implied contract was applied by the court to establish a constructive trust in an action against the wrongful holder of proceeds of the sale of real property. Albino v. Albino, supra.

(§83.3)

References

See generally ADMINISTERING TRUSTS IN OREGON ch 12 (Oregon CLE 1995).

ULTIMATE REPOSE I.

168

(§84.1)

General Rule

A.

The statute of ultimate repose provides an overall maximum upper limit on the time within which a tort action may be brought. Urbick v.

Suburban Medical Clinic, Inc., 141 Or App 452, 918 P2d 453 (1996), rev den, 329 Or 287 (1999); DeLay v. Marathon LeTourneau Sales, 291 Or 310, 630 P2d 836 (1981).

B.

Courts construe statutes of ultimate repose in accordance with the template for statutory construction set forth in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-611, 859 P2d 1143 (1993); see Giuletti v. Oncology Associates of Oregon, 178 Or App 260, 264, 36 P3d 510 (2001).

C.

No action for negligent injury to a person or property may be commenced more than 10 years after the date “of the act or omission complained of.” ORS 12.115.

D.

The ultimate repose statute, ORS 12.115, applies to actions for legal malpractice. Withers v. Milbank, 67 Or App 475, 678 P2d 770 (1984).

E.

The period of ultimate repose runs from the act or omission, or from the delivery of a product or completion of work and cannot be extended. In contrast, a period for commencing an action under a statute of limitations does not begin until a claim is actionable; that is, until there is a legal injury. Al Disdero Lumber Co. v. Dick W. Ebeling, Inc., 95 Or App 671, 770 P2d 945 (1989).

F.

Equitable estoppel is not available to avoid the statute of ultimate repose.

Beals v. Breeden, 113 Or App 566, 833 P2d 348 (1992).

G.

The period of ultimate repose for medical malpractice actions is five years. If, however, fraud, deceit, or misleading representation caused the action not to be commenced, then the action must be commenced within

ULTIMATE REPOSE / §84.1

two years from the date that the fraud, deceit, or misleading representation is discovered or in the exercise of reasonable care should have been discovered. ORS 12.110(4). But see ORS 30.020(1) for wrongful death actions based on medical negligence.

The doctrine of continuing treatment does not toll the five-year statute of ultimate repose. Rather, the triggering event for the fiveyear period of ultimate repose is “the date of the treatment, omission or operation, upon which the action is based,” and, absent allegations of fraud, deceit, or misleading representation, “the five-year period is absolute.” Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 918 P2d 453 (1996), rev den, 329 Or 287 (1999); Gaston v. Parsons, 318 Or 247, 250 n 3, 864 P2d 1319 (1994).

•

H.

The legislature has enacted specific statutes of repose for particular claims, and care should be taken to review applicable law to determine the presence of explicit periods of repose. For example, see ORS 12.280 (10-year statute of repose for actions under any legal theory for damages or injury arising out of the survey of real property).

I.

No action for wrongful death may be commenced later than three years after the death of the decedent. ORS 30.020(1). The period of repose may run earlier, but “in no case may an action be commenced later than the earliest of three years; or * * * any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing injury.” ORS 30.020(1)(a), (b).

J.

The period of repose for product liability actions is eight years. ORS 30.905(1). A product liability action may not be commenced later than eight years after the date on which the product was first purchased for use or consumption. ORS 30.905(1); Border v. Indian Head Indus., Inc., 101 Or App 556, 792 P2d 111 (1990).

•

EDITOR’S NOTE: At the time of publication of this handbook, an amendment to ORS 30.905 (HB 2080) was pending in the legislature. The amendment may have an impact on the time limitation for product liability claims and/or on the statute of ultimate repose for products liability claims. Readers should check the status of this proposed 2003 legislation.

K.

Failure to discover defective work, practice, or product until after the statute of ultimate repose has run does not suspend the statute. DeLay v.

Marathon LeTourneau Sales, supra.

L.

Actions for death, injury, or damages resulting from silicone breast implants are not subject to any statute of repose unless the action is asserted against a physician, health care facility, or supplier of 169

ULTIMATE REPOSE / §84.3

component parts or raw materials to implant manufacturers, as long as the supplier did not at any time manufacture or own a business that manufactured implants, and at no time was owned by a business that manufactured implants. ORS 12.276(2)-(4).

II.

M.

Asbestos product liability actions are specifically excepted from ORS 30.905(1) and are not subject to any other Oregon statute of ultimate repose. ORS 30.905, 30.907.

N.

Other particular claims are not subject to periods of repose by express legislative directive. For example, civil actions against pickup truck manufacturers for death or injury resulting from a fire caused by rupture of a sidesaddle gas tank in a vehicle collision are not subject to any statute of repose. ORS 12.278(2). See also ORS 12.282(2) (actions against manufacturers of extendable equipment for injury arising out of contact with power lines).

(§84.2) A.

An action brought more than 10 years after an accident that caused injuries to a minor is barred by the statute of ultimate repose. Davis v.

Blanchard, 84 Or App 99, 733 P2d 460 (1987).

B.

The period of ultimate repose for a minor’s action based on medical negligence is five years from the date of the treatment, omission, or operation. ORS 12.110(4). The period of repose is not tolled during minority by ORS 12.160.

C.

Even though the minor claimed that the insurer made advance medical payments without properly notifying the minor of the expiration of the applicable statute of limitations as required by ORS 12.155, the statute of ultimate repose was not suspended. Davis v. Blanchard, supra.

D.

Notwithstanding ORS 12.115, an action based on child abuse or knowingly allowing, permitting, or encouraging child abuse may be brought within six years of when the injured person attains 18 years of age or within three years of the date on which the injured person discovers or in the exercise of reasonable care should have discovered the injury or the causal connection between the child abuse and the injury, whichever period is longer. ORS 12.117. Fearing v. Bucher, 328 Or 367, 977 P2d 1163 (1999).

E.

III.

170

Minors

ORS 12.117 applies to claims of negligence for “knowingly allowing, permitting, or encouraging child abuse.” Lourim v. Swensen, 328 Or 380, 977 P2d 1157 (1999).

(§84.3)

Statutes of Repose Not Tolled by Disabilities

UNIFORM COMMERCIAL CODE / §85.1

IV.

A.

Statutes of repose bar litigation filed after the specified date regardless of any tolling for disability under ORS 12.160 that would extend the statute of limitations for the same action. See ORS 12.110(4) (“notwithstanding provisions of ORS 12.160 * * *”) and ORS 12.115 (“In no event shall * * * ).

B.

Insanity does not suspend the running of the statute of ultimate repose.

Insanity suspends the running of the two-year statute of limitations for tort actions, but the period of ultimate repose continues to run. DeLay v.

Marathon LeTourneau Sales, 291 Or 310, 630 P2d 836 (1981).

C.

Similarly, the making of advance payments under ORS 12.155 does not extend the period of ultimate repose. Davis v. Blanchard, 84 Or App 99, 733 P2d 460 (1987).

(§84.4)

Constitutionality of Statute of Ultimate Repose

Trial courts are increasingly presented with arguments that Oregon statutes of repose violate the Oregon constitution, specifically Article I, section 20, the privileges and immunities clause, and Article I, section 10, the remedies clause.

ORS 12.110(4) recently survived constitutional challenges under Article I, section 10, and Article I, section 20 as applied to a wrongful death claim based on medical negligence. Barke v. Maeyens, 176 Or App 471, 31 P3d 1133 (2001), rev den, 333 Or 655 (2002).

UNIFORM COMMERCIAL CODE I.

(§85.1)

Sales

A.

An action for breach of contract of sale must be commenced within four years after the cause of action accrues. ORS 72.7250(1).

B.

Accrual of Cause of Action. A cause of action accrues when the breach occurs, regardless of knowledge of the breach. Breach of warranty occurs when delivery is tendered, except when a warranty extends to future performance. For future performance, the breach occurs at the time of the future performance, and the cause of action accrues when the breach is, or should have been, discovered. ORS 72.7250(2). If the sale of goods also involves a secured transaction, and the remedies enforced by the seller are derived from Article 9 of the UCC, the applicable statute of limitations appears to be six years and not four (or less) as provided in ORS 72.7250. In Chaney v. Fields Chevrolet, 264 Or 21, 503 P2d 1239 (1972), the plaintiff auto dealer (secured party), after a default in the debtor’s car payments, repossessed the debtor’s automobile and sold it for more than the debt owed to the secured party. The debtor sued more than four years (but less than six years) after discovery of the ultimate

171

UNIFORM COMMERCIAL CODE / §85.1

facts from the secured party. The trial court granted the secured party’s motion to dismiss based on ORS 72.7250. The Oregon Supreme Court reversed, holding that, because Article 9 has no statute of limitations, either the six-year general contract limitation period or the six-year Aaction on statute” limitation period applied.

•

172

CAVEAT: This holding is suspect when the creditor files an action to collect on a secured installment sale contract or other secured sales transaction to which Article 9 applies, because the four-year statute of limitation contained in ORS 72.7250 clearly governs the sale transaction. Query whether the result would have been the same if the creditor were suing the debtor on the sales contract.

C.

Limitation by Agreement. Parties may reduce the four-year limitation period in their original agreement to not less than one year but may not extend the time for commencement of an action. ORS 72.7250(1).

D.

Other Remedies. If an action is timely and is terminated, leaving another remedy available for the same breach, the other remedy may be commenced after the time expires for bringing the original action but must be commenced within six months after the original action is terminated, unless the termination was the result of a voluntary dismissal or dismissal for lack of prosecution. ORS 72.7250(3).

E.

Insolvent Buyer. If a buyer who has received goods on credit is insolvent, the seller may reclaim the goods by making demand within 10 days after the buyer receives the goods. If the buyer misrepresented the insolvency in writing within three months before delivery, the 10-day limitation does not apply. ORS 72.7020(2). In 1994, Congress addressed the concerns of trade creditors who claimed they often had insufficient notice to exercise their reclamation rights when the debtor files bankruptcy. The Bankruptcy Code was amended to give trade creditors up to 10 extra days to utilize reclamation rights after the commencement of a bankruptcy case. “Such a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods–(A) before 10 days after receipt of such goods by the debtor; or (B) if such 10-day period expires after the commencement of the [bankruptcy] case, before 20 days after receipt of such goods by the debtor.”

11 USC §546(c)(1)(B).

F.

Objection to Contract. Merchants must satisfy the statute of frauds by entering into a written contract for the sale of goods for $500 or more or by sending a written confirmation of the contract within a reasonable time. The party receiving the written confirmation must object to the

UNIFORM COMMERCIAL CODE / §85.2

contents of the contract within 10 days after it is received.

ORS 72.2010(1)-(2).

G.

H.

II.

Breach of Warranty. An action for personal injuries caused by a breach of an implied warranty in a contract for the sale of goods must be commenced within four years from the breach. Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973).

•

An action for breach of implied warranty is governed by the UCC. ORS 72.3140, 72.3150, 72.7250, 72.7140, 12.010.

•

An action for breach of express warranty is contractual. The six-year statute of limitations applies to all contracts not specifically excepted by the statute. ORS 12.080(1); Housing Authority of Portland v. Ash Nat’l., 36 Or App 391, 584 P2d 776 (1978).

•

An action for breach of an implied warranty must be commenced within 10 years of substantial completion of the contract.

ORS 12.135(1); Sponseller v. Meltebeke, 280 Or 361, 570 P2d 974 (1977).

Buyer’s Revocation of Acceptance (ORS 72.6080). In addition to meeting other requirements concerning the nonconformity of the goods, to revoke acceptance the buyer must give notice within a reasonable time after discovery of the nonconformity occurs or should have occurred.

What is a reasonable time depends on the facts of each case. Compare Jorgensen v. Pressnall, 274 Or 285, 545 P2d 1382 (1976) (successful, timely revocation), and Wadsworth Plumbing v. Tollycraft Corp., 277 Or 433, 560 P2d 1080 (1977) (unsuccessful, untimely notice of revocation of acceptance).

(§85.2) A.

B.

Consumer Goods

Warranty. In the sale of a consumer good to a retail buyer, an implied warranty of merchantability or, if applicable, an implied warranty of fitness endures for one year after the sale. ORS 72.8070(2)(a).

•

If the good is a motor vehicle, the warranty expires one year after the sale or after 12,000 miles of use, whichever is shorter.

ORS 72.8070(2)(b).

•

If an express warranty of a stated duration is made, the implied warranty of merchantability or fitness endures for at least 60 days after the sale and for the duration of the express warranty, or for the duration specified in ORS 72.8070 (2), whichever occurs first. ORS 72.8070(3).

Attorney Fees. To obtain attorney fees or expert witness fees in a consumer warranty action when the amount pleaded is $2,500 or less, the

173

UNIFORM COMMERCIAL CODE / §85.3

plaintiff must prevail and must have made a written demand for payment of the claim on the defendant not less than 30 days before the action was commenced, and the defendant must have had a reasonable opportunity to inspect the item. ORS 20.098(1).

A defendant may be awarded attorney and expert fees if the defendant prevails and the plaintiff had requested fees. ORS 20.098(2).

•

III.

(§85.3) A.

Note That is Payable at a Definite Time. An action to enforce a party’s obligation to pay the note must be commenced within six years after the due date stated in the note. If the due date is accelerated, the action must be commenced within six years after the accelerated due date. ORS 73.0118(1).

B.

Note That is Payable on Demand. If demand for payment is made to the maker of the note, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand. ORS 73.0118(2).

•

174

Commercial Paper

CAVEAT: If demand for payment is not made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of 10 years. ORS 73.0118(2).

C.

Unaccepted Draft. An action to enforce a party’s obligation to pay an unaccepted draft must be commenced within six years after the draft is dishonored or 10 years after the date of the draft, whichever comes first.

ORS 73.0118(3).

D.

Certified Check, Teller’s Check, Cashier’s Check, or Traveler’s Check.

An action to enforce the obligation of the acceptor or issuer to pay the check must be commenced within six years after the demand for payment is made to the acceptor or issuer. ORS 73.0118(4).

E.

Certificate of Deposit. An action to enforce a party’s obligation to pay a certificate of deposit must be commenced within six years after demand for payment is made to the maker. If the instrument states a due date, however, the six-year period begins when a demand for payment is in effect and the due date has passed. ORS 73.0118(5).

F.

Accepted Draft Other Than Certified Check. An action to enforce a party’s obligation to pay an accepted draft other than a certified check must be commenced within six years after the due date stated in the draft (or acceptance if the acceptor’s obligation is payable at a definite time),

UNIFORM COMMERCIAL CODE / §85.4

or within six years after the date of the acceptance if the acceptor’s obligation is payable on demand. ORS 73.0118(6).

G.

IV.

Miscellaneous Other Actions. An action for any of the following must be commenced within six years after the claim for relief accrues (unless another law governs the indemnity or contribution claim, see INDEMNITY; see also CONTRIBUTION): conversion of an instrument, for money had and received, or like action based on conversion; breach of warranty; or enforcement of an obligation, duty, or right arising under ORS chapter 73 and not addressed here. ORS 73.0118(7). The limitation period may be tolled as determined by other law. ORS 73.0118(8).

(§85.4) Bank Deposits and Collections The general statute of limitations for an action to enforce an obligation, duty, or right arising under chapter 74 is three years after the claim for relief accrues.

ORS 74.1110.

A.

Presentment. Presentment is effective when the person to whom presentment is made receives the demand for payment or acceptance, and is effective if made to any one of two or more makers, acceptors, drawees, or other payors. ORS 73.0501(2)(a). Presentment may be treated as occurring on the next business day if the party to whom presentment is made has established a cut-off hour and presentment is made after the cut-off hour. ORS 73.0501(2)(d).

B.

Dishonor – Generally. Dishonor of a note depends on the nature of the instrument, as follows: For a note that is payable on demand, the note is dishonored if presentment is duly made to the maker and the note is not paid on the day of presentment.

C.

•

For a note that is not payable on demand and is payable at or through a bank or the terms of the note required presentment, the note is dishonored if presentment is duly made and the note is not paid on the day it becomes payable or the day of presentment, whichever is later.

•

Under certain conditions, a note that is not payable on demand is dishonored if it is not paid on the day it becomes payable. ORS 73.0502(1).

•

For dishonor of accepted drafts and unaccepted drafts, see ORS 73.0502(2)-(3).

Notice of Dishonor. For an instrument taken for collection by a collecting bank, the collecting bank must give notice of dishonor before midnight of the banking day after the banking day on which the bank

175

UNIFORM COMMERCIAL CODE / §85.4

received notice of dishonor of the instrument, or by any other person within 30 days following the day on which the person receives notice of dishonor. With respect to any other instrument, notice of dishonor must be given within 30 days following the day on which dishonor occurs.

ORS 73.0503(3).

D.

Notice of Dishonor Excused. Notice of dishonor is excused when the instrument specifies that notice of dishonor is not necessary to enforce a party’s obligation to pay the instrument, or the party whose obligation is being enforced waives notice of dishonor. A waiver of presentment is also a waiver of notice of dishonor. ORS 73.0504(2).

Delay in giving notice of dishonor is excused if the delay was caused by circumstances beyond the control of the person giving the notice and that person exercised reasonable diligence after the delay. ORS 73.0504(3).

E.

Stop Payment. A customer may stop payment of any item or close the customer’s account by an order to the bank. The order must be made within a reasonable time to afford the bank a reasonable opportunity to act. ORS 74.4030.

•

F.

Death or Incompetence. A bank has continuing authority to accept, pay, or collect on an item until the bank knows of the death or adjudication of incompetency and has reasonable opportunity to act on it.

ORS 74.4050(1).

•

G.

Unless a stop payment is ordered, a bank may, for 10 days after the date of death, pay or certify checks drawn on or before that date even if the bank knows of the death or incompetency. ORS 74.4050(2).

Unauthorized Signature (including forgeries), Alteration, or Indorsement. The time rules governing an action under ORS 74.4010 against a customer’s bank based upon an unauthorized, forged, altered, or otherwise improper signature or indorsement are provided in ORS 74.4060 as follows: •

176

An oral stop-payment order is binding for 14 calendar days unless it is confirmed in writing during the 14 days. A written order is effective for six months and may be renewed in writing for additional six-month periods by a writing given to the bank within a period during which the stop payment order is effective . ORS 74.4030(2).

When a bank provides a statement of account to a customer, the customer “must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized.” ORS 74.4060(3). The customer has 180 days after the statement or items are made available to discover and report the customer’s unauthorized signature on or any alteration of the face or

UNIFORM COMMERCIAL CODE / §85.5

back of the item. The customer also has 18 months from that time to discover and report any unauthorized indorsement on the item. A customer who fails to discover and report the unauthorized signature, alteration, or indorsement is precluded from asserting those claims against the customer’s bank under ORS 74.4010 (bank to pay over authorized signatures only). ORS 74.4060(6).

V.

(§85.5) A.

Warehouse Receipts and Bills of Lading

A warehouseman must notify the person on whose account the goods are held, or any person known to claim an interest in the goods, that the storage period has terminated in order to require payment or remove the goods. If no storage period is fixed in the document, the warehouseman must allow at least 30 days after notification before removing the goods or requiring payment. ORS 77.2060(1).

•

The warehouseman may sell the goods to enforce a warehouseman’s lien if the goods are not removed before the date specified in the notice. ORS 77.2060(1).

•

If the warehouseman in good faith believes that the goods will decline in value to less than the amount of the lien during the 30-day waiting period before removal, the warehouseman may specify a shorter time in the notice. If the goods are not removed within this time, the warehouseman may sell the goods at public sale held at least one week after advertising or posting the notice of sale. ORS 77.2060(2).

•

On demand made before the sale, a warehouseman must deliver goods to any person entitled to the goods. ORS 77.2060(4).

B.

Enforcement of Lien. A warehouseman’s lien may be enforced by private or public sale of the goods at any commercially reasonable time or place after notifying all persons known to claim an interest in the goods. ORS 77.2100(1).

C.

Notice of Sale. A warehouseman’s lien on goods other than goods stored by a merchant in the course of business may be enforced only on notification to all persons known to claim an interest in the goods.

ORS 77.2100(2)(a). The notice must be delivered in person or by registered letter to the last-known address. ORS 77.2100(2)(b).

•

The notice must include a demand for payment within a time that is not less than 10 days after receipt of the notice, and a statement that the goods will be advertised and sold by auction if the claim is not paid within the demand payment period. ORS 77.2100(2)(c).

177

UNIFORM COMMERCIAL CODE / §85.6

D.

•

Advertisement of the sale must be published once a week for two consecutive weeks after the time for payment has expired, and the sale must be held at least 15 days after the first publication.

ORS 77.2100(2)(f).

•

If publication in a newspaper is not available, advertisement of the sale must be posted in at least six conspicuous places in the neighborhood of the sale, at least 10 days before the sale.

ORS 77.2100(2)(f).

Merchant’s Lien. A lien on goods stored by a merchant in the course of business may be enforced by sending notice or advertisement of the sale.

ORS 77.2100(8).

•

E.

Bills of Lading. A carrier has a lien on goods covered by a bill of lading for charges after the date of receiving the goods for storage or transportation and sale. ORS 77.3070(1).

•

F.

VI.

178

The notice must include a 10-day demand for payment, and the sale must be advertised pursuant to ORS 77.2100(2)(c) and (f).

ORS 77.2100(8).

A carrier may enforce its lien by public or private sale held after notification of all persons known to claim an interest in the goods.

Enforcement of a lien by notice or advertisement of sale must follow the procedure set forth in ORS 77.2100(2). ORS 77.3070(1), (7).

Missing Documents. A person who is injured by a bailee’s delivery of goods to a person claiming under a missing negotiable document must file a notice of claim against the security posted with the bailee within one year after the delivery. ORS 77.6010(2).

(§85.6)

Investment Securities

A.

An act or event that creates a right to immediate performance of the principal obligation represented by a security certificate does not itself constitute notice of an adverse claim, except in the case of transfer of more than (1) one year after a date set for presentment or surrender for redemption or exchange, or (2) six months after a date set for payment of money against presentation or surrender. ORS 78.1050(3).

B.

Lost, stolen, or destroyed securities must be replaced if the owner (1) requests a new certificate before the issuer has notice that the certificate has been acquired by a protected purchaser, (2) files sufficient indemnity bond with the issuer, and (3) satisfies the issuer’s other reasonable requirements. ORS 78.4050. See also ORS 78.4060.

C.

Statute of Frauds Inapplicable. A contract or modification of a contract for the sale or purchase of a security is enforceable whether or not there

UNIFORM TRIAL COURT RULES / §86.1

is a signed writing, even if the contract or modification is not capable of performance within one year of its making. ORS 78.1130.

D.

VII.

Security Interest. Old Article 8 of the UCC (ORS chapter 78) used to govern the creation, perfection, and priority of security interests in securities or “investment property” (now defined by ORS 79.0102(1)(ww)). Revised Article 9 (ORS chapter 79) now governs such security interests. ORS 79.0106, 79.0305, 79.0312, and 79.0314. A secured party may perfect a security interest in investment property (which includes a “security entitlement,” a “security account,” and a certificated or an uncertificated security) in one of three ways: •

By filing a financing statement (ORS 79.0312);

•

By obtaining “control” (ORS 79.0314); or

•

By possession (delivering a security certificate to the secured party) (ORS 79.0313).

•

If perfection depends on possession of the collateral by the secured party, perfection occurs no earlier than the time the secured party takes possession. ORS 79.0313(4).

•

A secured party who perfects by “control” has priority over a secured party who perfects only by filing. Multiple secured parties who perfect by “control” rank on a first-to-obtain-control (by agreement) basis. ORS 79.0328.

•

A security interest in a certificated security is perfected without filing or the taking of possession for a period of 20 days from the time the security interest attaches (ORS 79.0203) to the extent that it arises for new value given under an authenticated security agreement. After the 20-day period expires, perfection depends on compliance with chapter 79.

•

Priority disputes are governed by ORS 79.0328, 79.0322, and 79.0323.

(§85.7)

Secured Transactions

See SECURED TRANSACTIONS (UCC).

UNIFORM TRIAL COURT RULES I.

(§86.1)

Applicability

A.

The UTCR apply to all proceedings in circuit courts except small claims, violations, and parking violations. UTCR 1.010(1)-(3).

B.

ORCP 10 applies when computing time under the UTCR. UTCR 1.130.

See TIME COMPUTATIONS. 179

UNIFORM TRIAL COURT RULES / §86.4

II.

III.

IV.

C.

Always check the supplemental local rules (SLR) for the county in which the case is filed, and cross-reference the UTCR with the Oregon Rules of Civil Procedure. See UTCR 1.050.

D.

Counsel whose address or phone number has changed must immediately notify the trial court administrator and all other parties. UTCR 2.010(14).

(§86.2) A.

If a judge has a matter under advisement for more than 60 days, all parties have a duty to immediately call the matter to the court’s attention in writing. UTCR 2.030(1).

B.

If a judge has a matter under advisement for 90 days, all parties must again immediately call the matter to the judge’s attention in writing, with copies to the presiding judge and the Chief Justice. UTCR 2.030(2).

(§86.3)

Decorum in Proceedings

A.

Notice of change of attorney of record must be promptly filed.

UTCR 3.140(1). See ORS 9.380 – 9.390.

B.

An attorney newly employed in a pending case must immediately notify the court and other parties of the appointment, either in writing or in open court. UTCR 3.140(3).

C.

Out-of-state counsel who have been granted permission to appear before Oregon courts or administrative bodies or have had such permission revoked must give notice to the Oregon State Bar in a manner and time determined by the Bar. UTCR 3.170(4).

(§86.4)

Criminal Proceedings

A.

Pretrial motions must be filed in writing at least 21 days before trial or within seven days after arraignment, whichever is later, unless a different time is permitted by the court for good cause shown. UTCR 4.010.

B.

Notice of dismissal or a change in plea must be given to the court immediately. UTCR 6.020(1).

C.

Pleas and Trial Dates. At the time of arraignment, the court may accept a not-guilty plea and set a trial date, or the court may set a date for entry of a plea. UTCR 7.010(1).

•

180

Judicial Duties

Plea agreements, negotiations, discovery, and investigations must be concluded by a date set by the court. The date must be set not earlier than 21 days after arraignment, but not later than 21 days before the trial date for defendants in custody. For defendants who are not in custody, the conclusion date must be set not earlier than 35 days after arraignment, but not later than 35 days before the trial date. UTCR 7.010(2).

UNIFORM TRIAL COURT RULES / §86.5

•

D.

V.

Trial counsel must report the probable length of trial, necessity for pretrial hearing, matters affecting the case, and whether a jury trial is desired, not later than the date set for the conclusion of plea agreements, negotiations, discovery, and investigations.

UTCR 7.010(3).

Motion to Suppress. Any opposition to a motion to suppress must be served and filed not later than seven days after the motion to suppress is filed. UTCR 4.060(2)(a).

(§86.5)

Civil Proceedings

A.

Written Communications. Except as exempted by statute, when written communication is made to the court, copies must be mailed or delivered simultaneously to all other parties. (The original should indicate those mailings or deliveries.) UTCR 2.080(1).

B.

Conferring on Motions. Before filing a motion under ORCP 21, 23, or 36-46, a moving party must make a good faith effort to confer with the other party about the disputed issues, or the court will deny the motion.

However, the court will not deny a motion to dismiss for failure to state a claim or for lack of jurisdiction due to the moving party’s failure to confer. UTCR 5.010(1)-(2).

C.

D.

•

When the motion is filed, the moving party must file a certificate of compliance stating that the parties conferred or stating facts showing good cause for not conferring. UTCR 5.010(3).

•

A motion may be presented ex parte on filing a certificate that the motion is unopposed. UTCR 5.010(4).

Response and Reply. A party opposing any motion (other than a summary judgment motion) must file a written memorandum in response to the motion within 14 days from the date on which the motion is served. UTCR 5.030(1).

•

A reply memorandum, if any, must be filed within seven days after the response is served. UTCR 5.030(2).

•

Oral argument, if desired, must be requested in the caption of the motion or response, and the first paragraph must include a statement estimating the time necessary for the argument and requesting court reporting services, if desired. UTCR 5.050(1).

•

Request for oral argument by telecommunication must be in the caption of the motion or response. The conference call must be initiated and paid for by the requesting party. UTCR 5.050(2).

Stipulated and Ex Parte Matters. Stipulated and ex parte matters may be presented personally any time during court hours or delivered by mail or 181

UNIFORM TRIAL COURT RULES / §86.6

messenger to the trial court administrator for distribution to a judge, unless local rules otherwise limit the time for presenting such matters.

UTCR 5.060.

PRACTICE TIP: Check the SLR for specific ex parte procedure.

•

E.

Notice of Settlements. Notice of settlement, dismissal, or compromise must be given to the court immediately. The court will enter a judgment or a 28-day dismissal order if the court requests that the parties place the notice on the record. After written notice to the parties, and if no order or judgment has been filed, the case will be dismissed following the 28th day after the date of the notice. UTCR 6.020(2).

F.

Late Settlement/Costs. The court may assess jury-impaneling fees against any party or all parties for failure to notify the court of settlement before noon of the last judicial day before trial, or for late settlement if the case settles after noon on the last judicial day. UTCR 6.020(3).

G.

Postponement of Trial. A request to postpone a trial date must be made by motion. No time limit for filing such a motion is listed, except that if the motion is based on stipulation of the parties, it must be filed at least 28 days before the date set for trial. Check the SLR. UTCR 6.030.

If a party has been unable to obtain a postponement, a scheduling conflict will be resolved by the presiding judges of the affected courts on motion filed in both courts by the conflicted party.

UTCR 6.040(1).

•

H. VI.

182

Water Rights. Whenever a disputed water right becomes an issue in a case, the party making the assertion must notify the court. UTCR 5.090.

(§86.6)

Document Filing: Civil

A.

Trial memoranda must be filed with the court administrator, with copies delivered to the court and opposing parties at the same time.

UTCR 6.050.

B.

Proposed Orders or Judgments. Any proposed judgment, except one subject to UTCR 10.090, or proposed order submitted in response to a ruling of the court must be served on opposing counsel at least three days before it is submitted to the court (with certain exceptions). UTCR 5.100.

C.

Jury instructions and verdict forms must be delivered to the court and to opposing parties at the same time. UTCR 6.060(1). Proposed verdict forms and interrogatories must be submitted at commencement of trial.

UTCR 6.060(6).

D.

Exhibits must be marked before trial, and a list of premarked exhibits must be submitted to the court at the time of trial. UTCR 6.080(1)B(3).

Exhibits are returned to the custody of the submitting party when a trial

UNIFORM TRIAL COURT RULES / ยง86.8

or hearing is concluded, and that party must retain the exhibits until final disposition of the case. UTCR 6.120(1). Exhibits that are not returned to the submitting party are retained by court until the time for appeal has elapsed and there is a final disposition of the case. The court then sends a notice to the parties to withdraw their exhibits within 30 days. If the parties do not withdraw the exhibits, the court may dispose of them. UTCR 6.120(4).

VII.

E.

After a party has filed a notice of appeal, counsel will receive notice from the trial court administrator to return documentary exhibits.

Counsel must return documentary exhibits to the trial court within 21 days of the notice. Nondocumentary exhibits must be returned to the trial court on its request. UTCR 6.120(2)-(3).

F.

Hazardous substances may be offered as evidence only after the party intending to offer hazardous substances files a motion for an order to regulate handling, use, and disposition at least 28 days before the hearing or trial. Failure to timely file a motion may result in excluding the evidence from the courthouse. UTCR 6.140(1), (4).

(ยง86.7)

Waiver of Jury: Civil

Waiver of a jury must be made before 5:00 P.M. on the last judicial day before trial, or the court may assess one or all parties with costs of impaneling a jury.

UTCR 6.130.

VIII. (ยง86.8)

Setting Trial Date

A.

If no return or acceptance of service is filed by the 63rd day after a complaint is filed, notice will be given to the plaintiff that his or her case will be dismissed for want of prosecution within 28 days from the date of mailing the notice. The case may continue by a showing of good cause on motion supported by affidavit, on appearance of the defendant, or by proof of service filed within the 28-day period. UTCR 7.020(2).

B.

The case is not at issue if the defendant fails to appear by the 91st day after the plaintiff has filed the complaint. The court will notify the plaintiff that the case against each nonappearing defendant will be dismissed for want of prosecution 28 days from the date of mailing the notice, unless the plaintiff files a motion for default within the 28-day period, unless plaintiff files a motion showing good cause to continue the case, or unless the defendant appears. UTCR 7.020(3).

C.

The case is at issue 91 days after filing the complaint if all defendants have appeared, or when the pleadings are complete, whichever is earlier.

UTCR 7.020(4).

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UNIFORM TRIAL COURT RULES / §86.10

IX.

X.

184

D.

A trial date must be set no later than one year from the date on which the complaint is filed, or six months from the date on which a third-party complaint is filed, whichever is later. UTCR 7.020(5). The parties have 14 days after a case is at issue to agree on a trial date or have a conference with the presiding judge to set a trial date. Otherwise, the calendar clerk will set a trial date. UTCR 7.020(6)-(7).

E.

Complex Cases. Any party may apply for Acomplex case” designation at any time before a trial date is assigned. Such cases are not subject to trial-setting procedures in the ordinary course but will be set for trial within two years from the date of filing. UTCR 7.030(1), (4).

F.

Activity That Changes Court Schedule. The parties must report immediately to the court any resolution of any matter scheduled on the court’s docket. UTCR 7.040.

G.

Bankruptcy Stay. Time periods for setting trials under UTCR 7.020 or under SLR are not applicable during a federal bankruptcy stay of the underlying action unless the court severs the claim. UTCR 7.050(2), (4).

H.

ADA Accommodations; Foreign-Language Interpreters. A party who needs special accommodation under the ADA or a foreign-language interpreter must notify the court as soon as possible, but no later than two judicial days before the proceeding. The court may waive notice for good cause shown. UTCR 7.060-7.070.

(§86.9)

Domestic Relations

A.

Statements concerning assets and liabilities and orders concerning custody, visitation, health expenses, life insurance, or the division of assets and liabilities must be filed and served by the time stated in the SLR. In the absence of a local rule, the documents must be filed at least 14 days before a hearing on the merits and always by the beginning of trial. UTCR 8.010(4)-(6).

B.

When support is an issue, the opposing party must file and serve a Uniform Support Affidavit on the moving party at least seven days before the hearing. UTCR 8.040(4), 8.050(3).

(§86.10) Probate A.

When assets of an estate or conservatorship may be withdrawn from deposit only on court order, a writing showing the assets and signed by the depository must be filed with the court within 30 days of the entry of the order unless the order allows a longer period. UTCR 9.050.

B.

The last day of an annual accounting period must be within 30 days of the anniversary of appointment. UTCR 9.160(1)(a).

UNIFORM TRIAL COURT RULES / §86.13

C.

XI.

XII.

The closing depository statement included in an accounting must show the balance as it existed within 30 days of the close of the accounting period or the balance on the date the account was closed.

UTCR 9.180(2).

(§86.11) Change of Name or Sex A.

Public notice of the change must allow 14 days from the date of posting or publication for objecting parties to appear and show cause. A decree or order of change may be entered 15 days after posting or publication if no objection is made by appearance. Public notice of the change must be posted or published, and a certificate of name or sex change must be submitted to the trial court administrator on return of proof of public notice. UTCR 9.320.

B.

See ORS 33.420 or 33.460.

(§86.12) Motor Vehicle Laws A.

A motion to correct the record must be filed within seven days of filing the record, or the record is deemed settled. UTCR 10.040.

B.

A petitioner must file a memorandum of points and authorities and proof of service on the attorney general to support a challenge of a final order of the Driver and Motor Vehicles Services Division no later than 14 days after settlement of the record. UTCR 10.050.

C.

The respondent may file a written memorandum and proof of service in response not later than three days before the date set for hearing.

UTCR 10.060.

D.

The court will schedule a hearing within 35 days after the petitioner’s memorandum or the settlement of the record is filed, whichever occurs later, and the court must notify the parties of the hearing date at least 10 days before the hearing. UTCR 10.070(1). See ORS 813.410(7)(b).

E.

The court must enter judgment within seven days after the hearing or the date provided for the hearing. UTCR 10.090.

F.

See also MOTOR VEHICLES.

XIII. (§86.13) Juvenile Court Proceedings A.

Appointed Counsel. An application for court-appointed counsel and a sworn statement of financial status must be provided at intake or the earliest time practicable. UTCR 11.010(1).

•

An order for appointment expires when the time for appeal has expired. UTCR 11.020(2).

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UNIFORM TRIAL COURT RULES / §86.14

B.

Predispositional Investigation. Parties must immediately notify the court of an admission or stipulation of jurisdiction or of a dismissal before the jurisdictional or dispositional hearing. UTCR 11.040.

•

C.

An investigation report must be made available at least seven days before the dispositional hearing. UTCR 11.060(1).

Dispositional Hearing. A dispositional hearing must be held within 28 days after the court assumes jurisdiction. UTCR 11.050.

XIV. (§86.14) Arbitration A.

A case will not be transferred to arbitration within 63 days of the set trial date, except by court order or by stipulation between the parties agreeing on an arbitrator and hearing date at least 28 days before the scheduled trial date. UTCR 13.050.

B.

Exemption. A party seeking exemption from arbitration must file and serve a motion within 14 days of the notice of transfer to arbitration.

UTCR 13.070.

C.

Assignment. An arbitrator will be assigned by stipulation or by agreement within 21 days after assignment to arbitration.

UTCR 13.080(3).

•

186

Once a case is referred to arbitration, all motions against the pleadings and any pretrial motions not yet resolved will be submitted to and determined by the arbitrator. UTCR 13.040(3).

D.

Arbitrator’s Fee. Within 14 days after the arbitrator is appointed, each party must tender its pro rata share of the preliminary payment to the arbitrator. UTCR 13.120(2). See ORS 36.420.

E.

Attorney Fees and Costs. Within seven days after a decision and award are filed with the clerk of the court, a party may file and serve written exceptions solely on the issue of attorney fees and costs. Any objection to those exceptions must be filed and served within seven days after the exceptions are served. If the judge fails to rule on the issue within 20 days after the exceptions are filed, the award of attorney fees and costs is confirmed. ORS 36.425(6).

F.

Scheduling. The arbitrator will set the place, time, and date of the hearing not sooner than 14 days, nor later than 49 days, from the date the case is assigned to the arbitrator. Postponement or continuance on stipulation of the parties must be made within the 49-day period or on approval of the presiding judge. UTCR 13.160.

G.

Prehearing Statement of Proof. A prehearing statement of proof must be submitted to the arbitrator and served on all parties at least 14 days before the date of arbitration. Each party must provide copies of relevant

WORKERS’ COMPENSATION / §87.2

pleadings and court file documents to the arbitrator at least 14 days before the arbitration. UTCR 13.170.

H.

Award. If the arbitrator awards costs or attorney fees, the arbitrator must send the award to the parties, without filing the award with the court, within seven days after the arbitration hearing concludes.

UTCR 13.210(5)-(6).

I.

Filing Award. The arbitrator must file the award with a proof of service within 21 days of the hearing in dissolution cases or within 14 days in all other cases. UTCR 13.220(1).

J.

Challenge to Award. See “Attorney Fees and Costs” above; ORS 36.425(6). A trial de novo may be requested within 20 days after the decision and award are filed with the trial court administrator by filing a written notice of appeal and request for trial de novo with the trial court administrator. If no written notice is filed within the allowed time, the arbitration award and decision will be entered. UTCR 13.240, 13.250; ORS 36.425(2)-(3).

WORKERS’ COMPENSATION

I.

(§87.1)

ORS 656.001-656.990 governs workers’ compensation claims.

II.

(§87.2)

Noncomplying Employer

A noncomplying employer is an employer who has failed to provide or maintain workers’ compensation coverage for all subject workers in accordance with ORS 656.052(1) and 656.017.

A.

No person shall engage as a subject employer unless and until the person has provided coverage pursuant to ORS 656.017 for subject workers the person employs. ORS 656.052(1).

•

B.

The director (Director) of the Department of Consumer and Business Services (Department) will serve a proposed order declaring the person to be a noncomplying employer and assessing a penalty when the Director believes the employer is noncomplying. ORS 656.052(2).

Failure to comply after the order becomes final will result in a suit commenced by the Director in the circuit court of the county in which the alleged noncomplying employer resides or employs workers, enjoining employment of workers until compliance. That circuit court will set a date for hearing on the Director’s suit and serve notice on the alleged noncomplying employer with no fewer than five days from notice to hearing. ORS 656.052(3).

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WORKERS’ COMPENSATION / §87.5

C.

A claim by an employee of a noncomplying employer must be referred by the Director to an assigned claims agent within 60 days of the date the Director receives notice of the claim. The time for payment of the first installment of compensation does not begin to run until the Director has referred the claim to the assigned claims agent. ORS 656.054(1).

•

III.

IV.

(§87.3)

After the claim is closed, the Director will serve the noncomplying employer with a notice of the proposed penalty assessed pursuant to ORS 656.735(3). ORS 656.054(2).

Beneficiary

A.

Beneficiary is defined as an injured worker, or a spouse, child, or dependent of the worker entitled to receive payments under ORS chapter 656. Beneficiary does not include a person who intentionally causes the compensable injury to, or death of, an injured worker. A spouse is not a beneficiary if the spouse lived in a state of abandonment for more than one year at the time of the injury or after the injury. State of abandonment is defined as living apart from the worker for two years without receiving or attempting to collect support or maintenance payments. ORS 656.005(2).

B.

Child includes a posthumous child, a child adopted prior to the compensable injury, an illegitimate child, one toward whom the worker stands in loco parentis, and a stepchild if the stepchild was a family member and supported by the worker at the time of the injury. An invalid dependent child is considered to be a child under 18 years of age, regardless of age, if the child was an invalid at the time of the accident and remains an invalid dependent on the worker for support.

ORS 656.005(5).

C.

Dependent means a “father, mother, grandfather, grandmother, stepfather, stepmother, grandson, granddaughter, brother, sister, half sister, half brother, niece or nephew” who at the time of the accident is dependent on the worker for support. However, an alien not residing within the United States at the time of the accident is not considered a dependent unless he or she is the “father, mother, husband, wife or child.” ORS 656.005(10).

(§87.4)

Casual Worker

Employment is casual and the worker is not subject to ORS 656.001 to 656.990 if the total labor costs for work in any 30-day period is less than $500, regardless of the number of workers employed. ORS 656.027(3)(b).

V.

188

(§87.5)

Coverage

WORKERS’ COMPENSATION / §87.6

A.

Effective Date. Coverage is effective when the application for coverage and required fees or premium are accepted by an insurer’s authorized representative. ORS 656.419(3). For self-insured employers, coverage is effective on the date specified in its election notice to the Director. ORS 656.039(1). An employer of nonsubject workers may elect to make the employees subject workers by filing written notice of election with the insurer with a copy to the Director. ORS 656.039(1).

B.

Cancellation of Coverage.

•

By Employer. An employer may cancel coverage by giving the insurer at least 30 days’ written notice or may cancel in less than 30 days if the employer provides other coverage or becomes a selfinsured employer. ORS 656.423(1), (3).

•

VI.

(§87.6) A.

•

Cancellation by notice and replacement coverage is effective as of the date of the new coverage or certification as a self-insured employer. Cancellation on written notice alone is effective at midnight 30 days after the cancellation notice is received by the insurer, unless a later date is specified. ORS 656.423(2)-(3).

•

Within 10 days of receipt of the notice of cancellation, the insurer must send a copy of the notice to the Director. ORS 656.423(4).

By Insurer. An insurer may terminate liability on its contract or bond by giving the employer and the Director written notice of termination. A notice of termination shall state the effective date and hour of termination. ORS 656.427(1).

•

Termination for reasons other than those found in ORS 656.427(2)(b) is effective at midnight not less than 30 days after notice is received by the Director. ORS 656.427(2)(a).

•

Termination based on the insurer’s decision not to offer insurance to employers within a specific premium category is effective as of midnight at least 90 days after the Director’s receipt of the notice of termination. ORS 656.427(2)(b).

•

Termination does not limit liability incurred prior to the effective date of the termination. ORS 656.427(4).

Sole Proprietors

A sole proprietor, a member of a limited liability company, a member of a partnership, or an independent contractor pursuant to ORS 670.600 may apply to an insurer to become entitled as a subject worker to compensation benefits. Insurance is effective on acceptance of the application. ORS 656.128(1)-(2).

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WORKERS’ COMPENSATION / §87.7

•

B.

VII.

Independent Equipment Operators. A person operating owned or leasehold equipment for hire may elect self-coverage by filing written application with an insurer. The operator becomes a subject worker upon acceptance of the application. ORS 656.140(1), (3)-(4).

(§87.7)

Benefits

A.

Applicable Law. A subject worker or beneficiary of a subject worker will receive compensation for a compensable injury whether employed at the time of injury by a complying or noncomplying employer. The law in force at the time of the injury generally governs payment of benefits.

ORS 656.202(1)-(2).

B.

Death. Payment to the deceased worker’s spouse, or unmarried cohabitant provided there are children of the relationship and the relationship has lasted for a year or more (ORS 656.226), continues until the end of the month in which remarriage occurs. ORS 656.204(2)(a).

Upon remarriage, a surviving spouse shall be paid a lump sum of 36 times the monthly benefit. Monthly payments for each child continue notwithstanding the remarriage or cohabitation of the surviving spouse.

•

Spousal Monthly Payment. 4.35 x 66-2/3% of the deceased worker’s average weekly wage. ORS 656.204(2)(a).

•

Monthly Payments for Children. 4.35 x 10% of the deceased worker’s average weekly wage for each child until age 18. ORS 656.204(2)(b).

•

190

Any person subject as a worker under this section may cancel such election by giving written notice to the insurer. Cancellation is effective at midnight ending the day of filing notice of cancellation of election with the insurer. ORS 656.128(4).

•

EXCEPTION 1: If the child is 17 years of age but not yet 18 at the time of the deceased workers’ death, payments continue for one year from the date of death. ORS 656.204(7).

•

EXCEPTION 2: Monthly payments shall continue to age 23 if the child begins to attend an institution of higher education within six months of reaching age 19 or leaving high school. Benefits terminate before age 23 if the child ceases to attend higher education or graduates from an approved institution or program, whichever is earlier. ORS 656.204(7)-(8). A child loses his or her status as Aattending higher education” if the child carries less than half of a full course load. ORS 656.204(8)(b).

Maximum Benefit. The combined monthly benefit for a spouse and child(ren), or children alone if there is no surviving spouse, cannot

WORKERS’ COMPENSATION / §87.7

exceed 4.35 x 133-1/3% of the deceased worker’s average weekly wage. If it does, then the benefit for each child is reduced proportionately. ORS 656.204(2)(f).

C.

•

Death of Surviving Spouse. In the event of the death of the surviving spouse, monthly death benefits will be paid to any surviving children at 4.35 x 25% of the deceased worker’s average weekly wage, until each such child reaches age 18. ORS 656.204(2)(d).

•

Termination of Spousal Payment. Upon remarriage, or when the surviving spouse cohabits with a new partner for an aggregate period of more than one year and has a child as a result of that relationship, the surviving spouse shall be entitled to a final lump-sum payment of 36 times the monthly benefit. Payments to children of a deceased worker continue. ORS 656.204(3)(a)-(b).

•

If There Is No Surviving Spouse. The children receive a monthly benefit of 4.35 x 25% of the deceased worker’s average weekly wage until age 18, unless the children are in high school or attending higher education. ORS 656.204(4)(a)-(c), (8).

•

Dependents Other Than Spouse or Child. A monthly payment of 50% of the average monthly support actually received by the dependent in the months immediately preceding the industrial accident, up to age 18, unless the child is attending school. The maximum benefit is 4.35 x 10% of the deceased worker’s average weekly wage. ORS 656.204(5)(a)-(c), (8).

•

Payments to Invalid Child. Payments continue as long as the child remains an invalid. ORS 656.204(6).

Permanent Total Disability •

Permanent total disability (PTD) benefits are payable for as long as the worker is unable to return to regular gainful and suitable employment. Gainful employment is defined as employment paying the minimum wage or greater. Suitable employment is defined as one for which the worker has skills and training or one which the worker is able to perform after rehabilitation. ORS 656.206(1). The insurer must reevaluate a PTD claim at least every two years. ORS 656.206(5).

•

Benefits are payable at the rate of 66-2/3% of the wages at injury not to exceed 100% of the injured worker’s average weekly wage nor less than the lesser of 90% of weekly wages or $50 a week. ORS 656.206(2).

191

WORKERS’ COMPENSATION / §87.7

•

If death occurs while the injured worker is entitled to PTD, payment is made to a spouse and dependents. Remarriage of a surviving spouse terminates the payment of benefits to the spouse, but not to children under age 18, or to those who otherwise qualify. ORS 656.208, 656.204.

•

D.

192

Funeral expenses are limited to 10 times the deceased worker’s average weekly wage. ORS 656.204(1).

Temporary Disability Benefits. No payment of temporary total disability (TTD) or temporary partial disability (TPD) is made for the first three calendar days after the worker leaves work or loses wages, unless the TTD continues for 14 consecutive days or the worker is admitted to a hospital as an inpatient within 14 days of the first onset of TTD. If the worker leaves work or loses wages on the day of injury, that day is counted as the first of the three-day period. ORS 656.210(3), 656.212(1).

•

If a worker with an accepted disabling claim leaves work for a period of four hours or more for medical treatment for the injury, the worker will receive TTD or TPD benefits for the time missed, unless the employer pays wages for the period of absence. ORS 656.210(4), 656.212.

•

Benefits continue until one of the following events occurs: 1.

The worker returns to regular or modified employment;

2.

The attending physician advises the worker and documents in writing that the worker is released to regular employment;

3.

The attending physician advises the worker and documents in writing that the worker is released for modified employment, and an offer of modified work is made in writing to the worker and the worker fails to begin the offered employment.

However, the worker may refuse the modified job offer without losing entitlement to TTD benefits if the offer: •

requires a commute beyond the worker’s physical capacity according to the attending physician;

•

is for a work site more than 50 miles from both the worker’s residence and the site of injury, unless the intent of the parties at the time of hire – or the pattern of employment prior to injury – established multiple or mobile work sites and that the worker could be assigned to any of them;

•

is with an employer other than the employer at injury;

•

is not at a work site of the employer at injury;

WORKERS’ COMPENSATION / §87.7

4.

•

•

E.

•

is not consistent with either the existing written shift change policy or with the common practice of the employer at injury or aggravation; or

•

is not consistent with an existing shift change provision of an applicable collective bargaining agreement; or

Any other event that would allow suspension, withholding, or termination of benefits under ORS 656.262(4) or any other provision of the Act. ORS 656.268(4).

TTD and TPD benefits are not payable and may be suspended: 1.

If a self-insured employer pays the worker wages at the same wage rate and payment frequency as prior to the injury, ORS 656.262(4)(b);

2.

If benefits are not authorized by the attending physician, ORS 656.262(4)(g);

3.

For any period for which the attending physician retroactively authorized time loss more than 14 days prior to the date of the authorization, ORS 656.262(4)(g);

4.

For any period for which the attending physician fails to provide verification of inability to work, unless the inability is due to reasons beyond the worker’s control, ORS 656.262(4)(d);

5.

If the worker fails to appear at two scheduled appointments with the attending physician, after the insurer has issued a Notice of Rescheduling, ORS 656.262(4)(e);

6.

For any period beyond the 30 days allowed for authorization by a chiropractor or similarly licensed doctor or physician.

ORS 656.005(12)(b)(B); or

7.

If the worker is enrolled in a managed care organization, but continues to receive care from a physician not authorized by the managed care organization, ORS 656.262(4)(i).

The first payment of TTD or TPD must be made within 14 days of the employer’s notice or knowledge of the claim, if authorized by the attending physician, and continue every 14 days thereafter until the claim is denied or time loss is terminated as provided above. ORS 656.262(4)(a).

Temporary Partial Disability Calculation. TPD benefits are calculated as the TTD rate times the percentage arrived at by determining the

193

WORKERS’ COMPENSATION / §87.7

proportionate loss of wages to the wage used to determine TTD. ORS 656.212(2).

F.

Permanent Partial Disability •

Rate of Payment of Permanent Partial Disability (PPD) 1. 4.35 x TTD per week at the time the PPD determination is made, but not less than $108.75 per month.

2.

•

PPD compensation is in addition to sums paid for temporary disability (time loss). ORS 656.216.

Calculation of PPD. Benefit amount is determined by date of injury.

ORS 656.202(2).

1.

Scheduled disabilities: ORS 656.214(2)-(4) •

For injuries occurring 1/1/02 to 12/31/04, $559 per degree of disability as calculated under ORS 656.214(2)-(4);

•

For injuries occurring 1/1/00 to 12/31/01, $511.29 per degree of disability as calculated under ORS 656.214(2)(4);

•

For injuries occurring 1/1/98 to 12/31/99, $454 per degree of disability as calculated under ORS 656.214(2)-(4);

•

For injuries occurring 1/1/96 to 12/31/97, $420 per degree of disability as calculated under ORS 656.214(2)-(4);

•

For injuries occurring 1/1/92 to 12/31/95, $305 per degree of disability as calculated under ORS 656.214(2)-(4).

•

2.

194

CAVEAT: Notes following ORS 656.214 (1991) call for a calculation using Employment Department figures for injuries occurring 1/1/92 to 12/31/95. The statute itself provides the $305 per degree set forth above.

Unscheduled disabilities: ORS 656.214(5)-(6) •

For injuries occurring 1/1/2002 to 12/31/04, $184 per degree for degrees 1-64, $321 per degree for degrees 65160, $748 per degree for degrees 161-320;

•

For injuries occurring 1/1/00 to 12/31/01, $153 per degree for degrees 1-64, $267.44 per degree for degrees 65-160, $709.79 per degree for degrees 161-320;

•

For injuries occurring 1/1/98 to 12/31/99, $137.80 per degree for degrees 1-64, $243.80 per degree for degrees 65160, $662.50 per degree for degrees 161-320;

WORKERS’ COMPENSATION / §87.7

•

For injuries occurring 1/1/96 to 12/31/97, $130 per degree for degrees 1-64, $230 per degree for degrees 65-160, $625 per degree for degrees 161-320;

•

For injuries occurring 1/1/92 to 12/31/95, $100 per degree.

•

CAVEAT: Notes following ORS 656.214 (1991) call for a calculation using Employment Department figures for injuries occurring 1/1/92 to 12/31/95. The statute itself provides the $100 per degree set forth above.

•

Unmarried persons who have cohabited as husband and wife for one year prior to the date of injury, and children living as a result of that relationship, are entitled to the same survivorship rights as if they had been legally married. ORS 656.226.

•

A parent or guardian may claim the compensation on behalf of a minor injured worker. Notice of such a claim must be given to the insurer or self-insured employer before payment is made to the minor. Payment to the minor before notice discharges the obligation to pay compensation to the extent of any payment made. ORS 656.228.

•

Lump-sum payment is mandatory when the PPD award does not exceed $6,000. ORS 656.230(2).

•

After an award of PPD has become final, and on application of the worker, the insurer shall pay the remaining PPD award in a lump sum, but the insurer has 14 days from date of application to refer the matter to the Director if the insurer disagrees with the request for lump-sum payment. ORS 656.230.

•

Payment to a nonresident alien may, at the discretion of the Director, be made to the Consul General on behalf of that beneficiary, and in an amount less than the award, if the amount is sufficient to maintain the nonresident alien in a like degree of comfort, according to the conditions and costs of living in his or her place of residence, as the full amount would maintain a resident beneficiary. ORS 656.232.

•

An award of compensation for a further accident to the same body part or for the same condition must consider the combined effect of the injuries, and past monetary awards for such injuries.

ORS 656.222.

•

When a worker who is eligible to receive compensation dies, payments will continue to the survivor’s beneficiaries as defined in ORS 656.204 and 656.226. Surviving beneficiaries retain the right to request claim determination or pursue a hearing. ORS 656.218. No

195

WORKERS’ COMPENSATION / §87.7

double payments for death benefits and PPD payments are allowed.

ORS 656.218(6).

G.

•

Payment of PPD awards must commence within 30 days of the date the order awarding benefits becomes final. OAR 436-060-0150(7).

•

An insurer’s or employer’s request for hearing appealing a reconsideration order stays payment of compensation ordered in the reconsideration order. ORS 656.313.

Medical Services. Medical services for compensable conditions continue for life, but are not payable for medical services directed solely to a worker’s preexisting condition. ORS 656.245(1), ORS 656.225.

•

196

Medical services are not compensable after the worker’s compensable condition becomes medically stationary, except for: 1.

Medical services to a worker who has been found permanently and totally disabled;

2.

Prescription medications;

3.

Services necessary to administer and monitor administration of prescription medication;

4.

Prosthetic devices, braces, and supports;

5.

Services necessary to monitor status, repair, or replacement of prosthetic devices, braces, and supports;

6.

Services provided pursuant to an accepted claim for aggravation;

7.

Services provided pursuant to the Workers’ Compensation Board’s (Board’s) own motion for reopening;

8.

Services necessary to diagnose the worker’s condition;

9.

Life-preserving modalities similar to insulin therapy, dialysis, and transfusion;

10.

Palliative care required to enable the worker to continue working or vocational training, when approved by the insurer or self-insured employer, or when approved by the Director at the request of the worker or the worker’s attending physician;

11.

With approval of the Director, curative care from a generally recognized and nonexperimental advance in medical science since the worker’s claim was closed, if that curative care is highly likely to improve the worker’s condition; or

12.

Curative care to stabilize temporary and acute waxing and waning of symptoms.

WORKERS’ COMPENSATION / §87.8

H.

Claim Disposition. The parties may dispose of any matter relating to a claim (except for medical services) by a claim disposition agreement (CDA). The CDA must be approved by the Board. Submission of a CDA to the Board stays all other proceedings and payment obligations on that claim, except for the payment of medical services. The CDA will be approved in a final order unless the disposition is unreasonable, is based on intentional misrepresentation, or the worker requests, within 30 days of submission to the Board, that the Board disapprove the CDA. The worker may waive the 30-day cooling-off period if the worker is represented by an attorney. ORS 656.236.

VIII. (§87.8) Claims Procedure A.

Employer’s Obligation. An employer must report a claim or injury that may result in a compensable claim to its insurer within five days of notice or knowledge of the claim or accident. ORS 656.262(3).

•

Reporting. Insurers and self-insured employers must report every claim for disabling injury to the Director within 21 days after the date the employer has notice or knowledge of the injury. ORS 656.262(13).

B.

Worker’s Obligation. The worker or his or her dependent must give notice of an accident resulting in injury or death immediately and not later than 90 days after the accident. ORS 656.265(1).

C.

Failure of Notice. Failure to properly notify the employer bars the claim unless notice is given within one year after the accident and the employer had knowledge of the injury or death, or the worker died within 180 days after the date of the accident. ORS 656.265(1).

•

The issue of failure of notice must be raised at the first hearing on a claim for compensation in respect to the injury or death.

ORS 656.265(5).

D.

Acceptance/Denial Notification. The insurer or self-insured employer must provide a written notice of acceptance or denial of the claim to the claimant within 60 days of the employer’s notice or knowledge of the claim. ORS 656.262(6)(a). Any period of time for which the Director suspends a claimant’s compensation for noncooperation is not counted in the 60-day period. ORS 656.262(15).

E.

Omitted Condition. An injured worker who believes that a condition has been incorrectly omitted from a notice of acceptance must communicate his or her objection to the insurer or self-insured employer in writing, who then has 60 days from receipt of the written communication to revise the notice or make other written clarification in response.

ORS 656.262(6)(d). ORS 656.267.

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F.

New Medical Condition. After claim acceptance, written notice of acceptance or denial of claims for aggravation or new medical conditions must be furnished to the claimant by the insurer or self-insured employer within 60 days after it receives the written aggravation or new medical condition claim. The worker must clearly request formal written acceptance of any new medical condition, and may generally initiate a new medical condition claim at any time. ORS 656.262(7)(a). ORS 656.267.

G.

Aggravation. After the last arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence of an actual worsening supported by objective findings.

A claim for aggravation must be in writing in a format prescribed by the Director, signed by the worker or worker’s representative and accompanied by the attending physician’s report containing medical evidence supported by objective findings of the worsened condition resulting from the original injury. The insurer or self-insured employer has 60 days after receiving the workers’ aggravation claim to accept or deny the worker’s aggravation claim but must pay the first installment of time loss compensation no later than 14 days after receiving notice or knowledge of medically verified inability to work due to aggravation.

A claim for aggravation must be filed within five years of the first closure for a disabling claim or within five years of the date of injury if the claim has been classified as non-disabling for at least one year after the date of acceptance. ORS 656.273. ORS 656.277.

198

H.

Appeal of Denials. A hearing on the denial of a claim must be requested within 60 days after mailing of the notice of denial to the claimant.

ORS 656.319(1). Limited exceptions include (1) a showing of good cause for not filing within 60 days if the request is filed within 180 days, and (2) a showing of lack of mental competency, if the request is filed within one year of regaining mental competency and no later than five years and 60 days of the date of mailing of the notice of denial. See ORS 656.319(1), (3). See infra §87.10 B.

I.

Temporary Disability. If the attending physician authorizes the payment of temporary disability compensation, it must be paid no later than the 14th day after the employer has notice or knowledge of the claim and must be paid at least once every two weeks. ORS 656.262(4)(a).

J.

Delay. Unreasonable delay or refusal to process or pay a claim may result in penalties assessed against the insurer or self-insured employer.

WORKERS’ COMPENSATION / §87.8

Attorney fees are generally assessed as part of the penalty. ORS 656.262(11).

•

See applicable case law for interpretation of the statutes in this section.

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WORKERS’ COMPENSATION / §87.9

IX.

(§87.9) A.

Closure •

B.

200

Closure and Reconsideration Procedures The insurer or self-insured employer shall close the worker’s claim and determine the extent of permanent disability, provided the worker is not enrolled in vocational training, when: 1.

The worker’s condition has become medically stationary and there is sufficient information to determine permanent impairment;

2.

The accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition; or

3.

Without approval of the attending physician, the worker fails to seek medical treatment for 30 days, or the worker fails to attend a closing examination, unless the worker proves the failure to attend the closing examination was for reasons beyond the worker’s control. ORS 656.268(1).

•

The worker may request closure if the insurer or self-insured employer has not closed the claim. Within 10 days of receiving the worker’s written request for closure, the insurer or self-insured employer shall close the claim, or if the requirements for closure have not been satisfied, it shall issue a formal refusal to close the claim.

The worker has 60 days from the date of closure to request reconsideration.

•

If the claimant objects to a notice of refusal to close, the worker must request a hearing within 60 days of the date of the notice. ORS 656.268(5)(b).

•

The insurer must issue an updated notice of acceptance at closure specifying all accepted conditions at the time of claim closure. ORS 656.262(7)(c).

Reconsideration •

If a worker objects to a notice of closure, the worker must request reconsideration within 60 days of the date of the notice of closure.

ORS 656.268(5)(c). A request for reconsideration from a notice of closure must be made before a request for hearing can be made pursuant to ORS 656.283. ORS 656.268(5)(c).

•

If the basis for objection to a notice of closure is disagreement with the impairment findings used in rating the worker’s disability, the Director will refer the claim to a medical arbiter. ORS 656.268(7)(a).

WORKERS’ COMPENSATION / §87.10

•

Reconsideration must be completed within 18 working days from the date of the Department’s receipt of the request for reconsideration, except that the reconsideration may be postponed by an additional 60 calendar days if within the 18 working days the Department mails notice of review by a medical arbiter. ORS 656.268(6)(d).

•

If an order on reconsideration is not issued by the Department within the time periods allowed, the reconsideration is deemed denied, and any further proceedings will occur as if an order on reconsideration affirming the notice of closure had issued on the date it was due. ORS 656.268(6)(d).

•

A party objecting to the reconsideration order must request a hearing under ORS 656.283 within 30 days from the date of the reconsideration order. ORS 656.268(6)(g).

Evidence on an issue regarding a notice of closure that was not submitted at the reconsideration is not admissible at hearing, and issues that were not raised by a party at the reconsideration may not be raised at hearing unless the issue arises out of the reconsideration order itself. ORS 656.283(7).

PRACTICE TIP: Raise all potential issues, including permanent total disability, in the request for reconsideration, because an issue not raised at reconsideration is barred at hearing unless it arises out of the reconsideration order itself. ORS 656.283(7), 656.268(8).

•

•

X.

(§87.10) Hearings Procedure: Issue – Dependent Jurisdiction A.

Issues Decided by the Workers’ Compensation Board Hearings Division •

“Matter Concerning a Claim.” Subject to ORS 656.319 (relating to appeals of denials), any party may request a hearing before the Hearings Division in writing at any time on any matter concerning a claim except matters for which a procedure for resolving the dispute is provided in another statute, including ORS 656.245, 656.248, 656.260, 656.283(2), and 656.327. ORS 656.283(1)-(3). Matters concerning a claim are those matters in which a worker’s right to receive compensation or the amount thereof are directly in dispute.

ORS 656.704(3). The hearing will be scheduled within 90 days after receipt of the request for hearing by the board, and the parties will receive at least 10 days’ notice of hearing. ORS 656.283(4)-(5).

•

CAVEAT: If a claim for medical services is disputed for any reason other than the formal denial of the compensability of the underlying claim, the worker, the insurer, or the self-insured

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employer may request administrative review by the Director pursuant to ORS 656.245, 656.260, or 656.327. ORS 656.245(6).

B.

•

Order Declaring Person to Be Noncomplying Employer and/or Civil Penalty Assessment. A person may request a hearing to contest a proposed order of the Director declaring that person to be a noncomplying employer, or to contest a proposed assessment of civil penalty, by filing with the Department a written request for hearing, within 60 days of receipt of notice thereof. ORS 656.740(1).

•

A person may request a nonsubjectivity determination of the Director by filing a written request for hearing with the Department within 30 days after the mailing of the determination, or within 60 days after the mailing of the determination if the person establishes at a hearing before the Hearings Division of the Workers’ Compensation Board that there was good cause for failure to file the hearing request by the 30th day after the mailing of the determination. ORS 656.740(2).

•

When an employer alleges that an insurance carrier contracted to provide the employer with workers’ compensation coverage, the board shall join the insurance carrier as a party and must provide that insurance carrier with at least 30 days’ notice of hearing. ORS 656.740(3).

Deadlines for Timely Filing of Hearing Request •

•

202

Denied Claim. To contest a written denial of a claim, the claimant must request a hearing not later than the 60th day after the mailing of the denial to the claimant. ORS 656.319(1)(a).

•

EXCEPTION 1: A hearing will be granted when the request for hearing is filed more than 60 days but not later than the 180th day after mailing of the denial if the claimant establishes good cause for missing the 60-day request deadline. ORS 656.319(1)(b).

•

EXCEPTION 2: A hearing will be granted when the request was filed after 60 (or 180) days if the claimant proves a lack of mental competency to file within the deadlines. The claimant must request a hearing within one year after regaining competency. The extension of time for filing is limited to five years. ORS 656.319(2), ORS 656.319(3).

De Facto Denials. A request for hearing to contest a de facto denial must be made more than 60 days, but within two years, after giving notice of a claim. ORS 656.262(6)(a), 656.319(6).

WORKERS’ COMPENSATION / §87.10

For claims with a date of injury on or after 1/1/02, a request for hearing on a new medical condition or a condition that the worker believes has incorrectly been omitted from a notice of acceptance may be filed at any time more than 60 days after the claimant’s written communication to the insurer or self-insured employer requesting an amended notice of acceptance, unless the insurer or self-insured employer otherwise responds to the workers’ request within 60 days. ORS 656.262(6)(d), ORS 656.262(7)(a), ORS 656.386 (b) (B).

For claims with a date of injury before 1/1/02, written notice of acceptance or denial of a claim for a new medical condition shall be furnished to the claimant by the insurer or self-insured employer within 90 days after the insurer or self-insured employer receives written notice of the new condition claim. Former ORS 656.262(7)(a). (See notes to ORS 656.202.)

For claims with a date of injury before 1/1/02, written notice of acceptance or denial of a claim for an omitted condition shall be furnished to the claimant by the insurer or self-insured employer within 30 days after the insurer or self-insured employer receives written notice of the omitted condition claim. Former ORS 656.262(6)(d). (See notes to ORS 656.202)

C.

•

Reconsideration. If any party objects to the reconsideration order, the party may request a hearing under ORS 656.283 within 30 days from the date of the reconsideration order. ORS 656.268(6)(g).

•

Failure to Process or Incorrect Processing. A request for hearing for failure to process a claim or for incorrect processing must be filed within two years after the action or alleged inaction occurred.

ORS 656.319(6).

•

Orders of Noncompliance and/or Civil Penalty Assessment. A request for hearing to appeal an order of noncompliance or an order assessing a civil penalty must be filed with the Director within 60 days after receipt of the order. ORS 656.740(1).

Evidence •

Untimely Disclosure. Documents are generally admissible if disclosed within 15 days of the mailing of a copy of the request for hearing to the insurer, self-insured employer, or claimant, or within 15 days of a written demand, or within seven days of receipt of the documents, whichever is later. OAR 438-007-0015, 438-007-0018.

The testimony at a hearing of an expert witness may be excluded if the identity of the witness is not disclosed by the insurer or self-

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insured employer 28 days before the hearing or by the claimant 14 days before the hearing. OAR 438-007-0016.

•

•

Issues Arising out of a Reconsideration Order. Evidence on an issue regarding a notice of closure that was not submitted at reconsideration is not admissible at the hearing. ORS 656.268(7)(h), 656.283(7).

•

EXCEPTION 1: Any medical arbiter report may be received as evidence at a hearing even if the report is not prepared in time for use in the reconsideration proceeding. ORS 656.268(6)(f).

•

EXCEPTION 2: Evidence on an issue arising out of the reconsideration order itself is admissible even if it was not submitted at reconsideration. ORS 656.268(8), 656.283(7).

•

PRACTICE TIP: Submit all of your evidence in the administrative reconsideration proceeding.

•

Vocational Reports. If there is an issue of loss of earning capacity, reports from vocational consultants offered by the insurer or selfinsured employer are admissible only if provided to the claimant at least 10 days before the hearing and the author is made available on demand for cross-examination. ORS 656.287(1).

•

Impeachment Evidence. A party may withhold impeachment evidence until the opposing party’s case-in-chief has been presented, at which time the impeachment evidence may be used. Impeachment evidence other than medical or vocational reports that is not presented as evidence at the hearing is not subject to disclosure. ORS 656.283(7).

•

D.

Impeachment evidence consisting of medical or vocational reports not used during the course of a hearing must be provided to any opposing party at the conclusion of the presentation of evidence by the party with the impeachment evidence and before closing arguments are presented. ORS 656.283(7).

Expedited Claim Service •

204

EXCEPTION: The administrative law judge may exercise discretion to allow the admission of evidence that was not timely disclosed if no material prejudice has resulted from the timing of the disclosure and there is good cause for the failure to timely disclose that outweighs any prejudice to the other parties.

OAR 438-007-0018(4).

Time Frames. Cases assigned to the expedited claim service must be heard within 30 days of the request for hearing and an order must be

WORKERS’ COMPENSATION / §87.10

issued within 10 days after the administrative law judge closes the hearing record. ORS 656.291(3)(b).

•

E.

Cooperation Issues. If an insurer or a self-insured employer denies a claim for the claimant’s failure to cooperate, the claimant will not be granted a hearing or other proceeding on the merits of the claim unless the claimant first establishes at an expedited hearing that the worker fully and completely cooperated with the investigation, that the worker failed to cooperate for reasons beyond the worker’s control, or that the investigative demands were unreasonable.

ORS 656.262(15).

Final Order Disposition •

“Matter Concerning a Claim.” An administrative law judge must issue an order within 30 days after closing the hearing record. The order is final unless abated by the Administrative Law Judge or review by the board is requested within 30 days after the date of mailing of the order. ORS 656.289(1), (3).

•

•

If a party requests review of the administrative law judge’s order within 30 days, the other party or parties will have the remainder of the 30-day period and, in any case, at least 10 days to request board review in the same manner. ORS 656.289(3).

Order Declaring Person to be Noncomplying Employer and/or Civil Penalty Assessment. The order of the administrative law judge is a final order of the Director unless a petition for judicial review is filed with the court of appeals within 60 days after the date of mailing of the administrative law judge’s order. ORS 656.740(4), 183.482(1).

•

WCD Contested Cases. If a petition for rehearing is filed, then the petition for judicial review must be filed within 60 days following the date the order denying the petition for rehearing is mailed. If the administrative law judge does not otherwise act, a petition for rehearing or reconsideration is deemed denied the 60th day following the date the petition (for rehearing or reconsideration) was filed, and petition for judicial review must be filed within 60 days following such date. ORS 183.482(1).

•

Combined Hearing for “Matter Concerning a Claim” and Order of Noncompliance. When an order declaring a person to be a noncomplying employer is contested at the same hearing as a “matter concerning a claim” pursuant to ORS 656.283 and 656.704, the review thereof will be as provided for a matter concerning a claim, ORS 656.740(4)(c), set forth above and in “Board Review” and “Court of Appeals Review” below.

205

WORKERS’ COMPENSATION / §87.11

F.

G.

Board Review •

“Matter Concerning a Claim.” Notice of review will be mailed to all parties, and review must be scheduled for a date not later than 90 days after receipt of the review request. The board must issue a decision within 30 days after review. ORS 656.295(4), (6).

•

The order on review by the board is final unless an appeal is made to the court of appeals for judicial review within 30 days after the date of mailing copies of the board’s order on review. ORS 656.295(8).

Court of Appeals Review •

H.

XI.

•

Judicial review is commenced by (1) serving a copy of the petition for judicial review on the board and the parties who appeared in the review and (2) filing the original petition for judicial review with proof of service with the clerk of the court of appeals. ORS 656.298(3). Copies of the petition for judicial review may be mailed to the parties and the board by regular mail. However, the original petition for review filed with the court of appeals must be mailed by registered or certified mail.

ORAP 4.15(5)(c), (d). Check the latest rule amendments before relying solely on the regular mail method of service or filing permitted in ORS 656.298(3).

•

PRACTICE TIP: A United States Postal Service postmark cancellation for certified or registered mail, return receipt requested, is strong, inexpensive evidence of timely service or filing.

•

Any party served with petition for judicial review has 10 days after service to also request judicial review. ORS 656.298(4).

Waiver of Hearing on Lump-Sum Award of Permanent Disability. A claimant waives the right to a hearing when the claimant accepts a lumpsum award of permanent disability compensation made on the claimant’s application for lump-sum distribution. ORS 656.304, 656.230(1).

(§87.11) Self-Insured Employer A.

206

“Matter Concerning a Claim.” Request for judicial review must be made within 30 days after the date of mailing of the board’s order.

ORS 656.298(1), 656.295(8).

Certification. Certification of a self-insured employer is effective until revoked by the Director or canceled. Revocation is effective within 10 days after the employer’s receipt of notice of revocation from the Director, unless the employer corrects the grounds for revocation or appeals in writing to the Department. ORS 656.440(1).

WORKERS’ COMPENSATION / §87.13

•

B.

XII.

The Director must set a date for a hearing within 20 days of receiving the notice of appeal. ORS 656.440(2). If revocation is affirmed on appeal, the revocation becomes effective five days after the employer receives notice of affirmance from the Director unless the employer petitions for judicial review. Following judicial review, a revocation is effective five days after entry of a final decree of affirmance.

ORS 656.440(3)-(4).

The employer’s security deposit will be held on deposit for at least 62 months after the employer ceases to be a self-insured or carrier-insured employer if no policy of paid-up insurance is given to the Director.

ORS 656.443(3).

(§87.12) SAIF-Insured Employers A.

Payroll Report. The employer must file a payroll report or pay premiums and assessments within 30 days of SAIF’s mailing of a written demand, or the employer will be in default resulting in judgments, penalties, and liens against the employer. ORS 656.505, 656.560, 656.564.

B.

Lien. A lien against the employer’s real and personal property for unpaid premiums and assessments must be perfected by the insurer by filing a written statement describing the property and the lien with the clerk of the county in which the property is located within 60 days after the employer defaults or within 60 days from completion of the work if the employer does not own the property. ORS 656.564(3).

C.

•

A suit to foreclose the lien must be commenced within six months from the date of filing of the statement. ORS 656.564(4).

•

A lien in favor of SAIF attaches upon filing with the county clerk a notice of claim of lien for amounts due. A lien must be foreclosed by suit within two years from the date of filing. ORS 656.566(2), (4).

Payroll Statement. Failure of an employer to send the signed payroll statement required by ORS 656.504 within 30 days after receipt of notice by the Director or SAIF is a misdemeanor. ORS 656.990(5).

XIII. (§87.13) Recovery Against Third Persons A.

Election. The insurer or self-insured employer may require the worker to elect to sue a noncomplying employer or third person by serving written demand by registered mail or personal service on the worker. The worker is deemed to have assigned the action to the insurer unless the election is made within 60 days from service and an action is commenced against the third person within the time granted by the insurer. The worker will be allowed at least 90 days after election to commence an action.

ORS 656.583.

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WORKERS’ COMPENSATION / §87.15

B.

Conflict. If the insurer insures the worker and the third party, the insurer must give notice of the fact to the worker and the Director within 10 days after the accident. ORS 656.583(2).

XIV. (§87.14) Civil Penalty A.

The Director will assess a civil penalty of not more than $1,000 or twice the premium that would have been due for the period of noncompliance, whichever is greater, against any person who fails to comply with coverage requirements. In addition, penalties related to the severity of the worker disability will be assessed, and the penalty assessed will start at the rate of not more than $250 for each day the violation continues.

ORS 656.735(1)-(3).

•

B.

An employer found noncomplying must file a written request for hearing to object to the order and penalty within 60 days of receipt of the notice, or the order declaring the employer to be noncomplying and assessing the penalty will become final without review. ORS 656.740(1), (4).

•

XV.

208

The order assessing the penalty becomes a judgment and lien if unpaid within 10 days after the order becomes final. ORS 656.735(5).

When an order declaring a person to be a noncomplying employer is contested at the same hearing as a matter concerning a claim pursuant to ORS 656.283 and 656.704, review of the order will follow the procedure for a matter concerning a claim. ORS 656.740(4)(c).

(§87.15) Civil Negligence Action in Claims Denied for Failure to Prove Major Contributing Cause A.

Final Order. When an injured worker’s work-related claim is determined noncompensable for failure to prove work is the major contributing cause of the injury or disease, the worker may pursue a civil negligence claim against the employer. The injured worker may appeal an adverse workers’ compensation decision through the Court of Appeals. The injured worker may not file a civil negligence claim until the order affirming the major contributing cause denial becomes final.

ORS 656.019(1)(a).

B.

No New Action Created. This statute does not grant any civil negligence action that did not already exist. ORS 656.019(1)(b).

C.

Two Years/180 Days. Any action arising under ORS 656.019(1) must be commenced within the later of two years from the date of injury or disease, or 180 days from the final order affirming the major contributing cause denial. ORS 656.019(2)(a).

D.

Late Filed Claims. An injured worker who files a workers’ compensation claim after the time for commencing a civil negligence

WRITS / §88.2

action has expired, cannot file a civil negligence claim described above after the order affirming the major contributing cause denial becomes final. ORS 656.019(2)(b).

(The authors refer the interested reader to ORS chapter 12 for statutes governing the limitations of time for filing a negligence action.)

WRITS I.

(§88.1) A.

Time. A petition for writ of review of a decision of a lower court or other tribunal must be filed within 60 days from the date of the decision or determination. ORS 34.030.

B.

Undertaking. The plaintiff must give an undertaking of $100 for a payment of costs that may be adjudged to the defendant before the court will allow the writ. ORS 34.050.

C.

Service. A certified copy of the writ must be served by delivery on the opposite party at least 10 days before the return of the original writ.

ORS 34.080.

•

D.

II.

Writ of Review

The court allowing the writ fixes the date on which the writ is to be returned to the court. ORS 34.060.

Appeal. Judgment on the writ may be appealed by the same procedure for appeal from a circuit court judgment. ORS 34.100. See ORS ch 19.

See also APPELLATE PRACTICE and PROCEDURE.

(§88.2)

Writ of Mandamus

A.

Time. A petition for a writ of mandamus must be filed promptly after the ruling being challenged, in time to meet any analogous statutory deadline. State ex rel Marbet v. Keisling, 314 Or 235, 238, 838 P2d 585 (1992).

B.

Stay. Filing a writ of mandamus does not stay the judicial or administrative proceeding from which the mandamus proceeding arises, but the court may stay the proceeding. ORS 34.130(5).

C.

Intervention. On a petition filed under ORS 215.429 or 227.179 (county or city land use decisions), a motion to intervene must be filed with the court within 21 days after the petition is filed. ORS 34.130(4)(b). In all other cases, any adverse party may intervene at any time until the return date of the alternative writ, and any time after return, by the court’s discretion. ORS 34.130(4).

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WRITS / §88.4

D.

E.

III.

IV.

Alternative Writ. The defendant will be commanded to immediately, or at a date specified in the writ, perform the act required or show cause why the defendant has not performed. ORS 34.150.

•

The defendant may show cause by (1) motion to dismiss or (2) answering the writ as if it were a complaint on the return day of the writ or by a day allowed by the court. ORS 34.170.

•

If the defendant fails to show cause by motion or answer, a peremptory mandamus, which is a writ for a situation when the right to require performance is clear, will be allowed against the defendant.

Motions against answer or replication containing new matter may be moved against within the time prescribed by the court. ORS 34.180.

•

Pleadings may be amended as pleadings in an action. ORS 34.190.

See ORCP 23.

Appeal. A judgment refusing to allow mandamus or directing a peremptory mandamus may be appealed by the same procedure as for appeal of an action. ORS 34.240. See ORS ch 19.

(§88.3)

Writ of Habeas Corpus

A.

Service. Service of writ is not complete until fees for bringing the person before the court and an undertaking are tendered to the custodian.

ORS 34.440.

B.

Time for Return. If the place of return of the writ is within 20 miles, return must be made within 24 hours, and the same time is allowed for every additional 20 miles. The writ must be returned as otherwise specified in the writ. ORS 34.500.

C.

Warrant. On proof of service, the court must issue a warrant on a person who refuses to obey a duly served writ. The sheriff must apprehend the person immediately and the person will be held in jail until the writ is returned and until the person complies with the writ. ORS 34.550.

D.

Pleadings. A motion to strike or pleadings must be made within such time as the court directs and must have the same effect as in an action.

ORS 34.680.

E.

Appeal. Appeal from any final judgment in the habeas corpus proceeding or from judgment refusing to allow the writ must be brought in the same manner as in an action. ORS 34.710. See ORS ch 19.

(§88.4)

References

See generally 2 OREGON CIVIL PLEADING AND PRACTICE chs 34-35 (Oregon CLE 1994 & Supp 2001); 2 CRIMINAL LAW chs 27-28 (Oregon CLE 1994 & Supp 1998).

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WRONGFUL DEATH / §89.1

WRONGFUL DEATH I.

(§89.1) A.

Death of Injured Person

Generally. Generally, an action for wrongful death must be commenced within three years of the date the injury causing death is discovered or reasonably should have been discovered. ORS 30.020(1). An action for wrongful death must be commenced not “later than the earliest of: (a) 3 years after the date of death of the decedent; or (b) the longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury.” ORS 30.020(1).

But see ORS 147.065 (extending period to five years for action based on a compensable crime).

•

See also COMPENSABLE CRIMES; DEATH OR DISABILITY; GOVERNMENTAL AND PUBLIC BODIES; MEDICAL AND DENTAL MALPRACTICE; PRODUCTS LIABILITY; STATUTE OF LIMITATIONS – TOLLING; SURVIVAL OF ACTIONS; WORKERS’ COMPENSATION.

B.

Discovery Rule. The “discovery rule” does apply to wrongful death actions. ORS 30.020(1). However, as noted in paragraph A above, the three-year time period is limited by the statute of ultimate repose.

C.

Personal Representative. If the decedent could have maintained an action against a wrongdoer for injuries to the decedent caused by a wrongful act or omission, a personal representative may maintain an action against the wrongdoer. The action must be commenced within two years by the injured person and may be continued by the personal representative. The action must be commenced within three years of the injury if commenced by the personal representative after the injured person’s death. ORS 30.075(1).

D.

Appeal. A person claiming to be a beneficiary may appeal an order of distribution or apportionment as if the order were a judgment of the circuit court. ORS 30.060. See ORS ch 19.

E.

Tort Claims Act. The statute of limitations may begin to run when there has been a reasonable opportunity for discovery of the condition, the source of the injury, and the causal connection to the wrongdoer’s conduct. See Dowers Farms v. Lake County, 288 Or 669, 681, 607 P2d 1361 (1980); Repp v. Hahn, 45 Or App 671, 609 P2d 398 (1980); Adams v. Oregon State Police, 289 Or 233, 239, 611 P2d 1153 (1980). The twoyear statute of limitations in the Oregon Tort Claims Act prevails over the three-year wrongful death limitation. Van Wormer v. City of Salem, 309 Or 404, 788 P2d 443 (1990). In addition to the two-year limitations

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WRONGFUL DEATH / §89.4

period on actions, notice of the claim must be given to the public body within one year after alleged loss or injury. ORS 30.275(2)(a).

F.

II.

III.

Discovery Rule under Tort Claims Act. The discovery rule applies to claims for wrongful death against a public body. The rule applies both to giving notice and to bringing the action. See Stephens v. Bohlman, 314 Or 344, 350, 838 P2d 600 (1992). The discovery period begins on the date of the discovery of the tortfeasor rather than the discovery of the cause of death. Stephens v. Bohlman, supra.

(§89.2)

Death of Wrongdoer

A.

Claims for injury or death arising out of the conduct of the wrongdoer do not abate when the wrongdoer dies. Damages that may be awarded include those enumerated in ORS 30.020(2) (except punitive damages which are expressly excluded). ORS 30.080.

B.

An action arising out of the conduct of a wrongdoer is brought against the personal representative of the estate of the deceased wrongdoer.

ORS 30.080, 115.305.

C.

Appointment of Administrator. If probate of the wrongdoer’s estate has not been instituted within 60 days after the wrongdoer’s death, the injured person or his or her personal representative may move the court for the appointment of a personal representative of the wrongdoer’s estate for the purpose of bringing the injured person’s claims against the estate. ORS 30.090.

D.

The death of a wrongdoer may extend by one year the time for commencing an action against the personal representative of the wrongdoer’s estate, if the wrongdoer dies before the time for commencing an action expires. ORS 12.190(2).

(§89.3)

Employer Liability Law

The spouse, children, lineal heirs, parents, executor, or administrator of a worker’s estate can bring an action for the wrongful death of a worker.

ORS 654.325. See ORS 654.305-654.336.

IV.

212

(§89.4)

Personal Representative

A.

Relation Back. The duties of the personal representative commence when the letters of the personal representative are issued. The powers of the personal representative relate back in time to give acts made before appointment the effect of appointment. ORS 114.255.

B.

An action on behalf of an estate was filed by a person who believed that she could maintain the action. A personal representative was appointed after the statute of limitations on the action ran, but the personal representative accepted the action as filed for the estate. The action

WRONGFUL DEATH / §89.7

related back to the date on which it was originally filed when the defendants were not prejudiced by the error and the claim had not changed since the statute ran. Rennie v. Pozzi, 294 Or 334, 656 P2d 934 (1982).

V.

VI.

(§89.5)

Nuclear Accident

A.

An action arising from a nuclear incident that causes bodily injury, sickness, or death must be commenced within two years from the time the injury is discovered or reasonably should have been discovered, or within two years from substantial change in the degree of injury to the property arising out of the nuclear incident. ORS 12.110(5).

B.

The statute of ultimate repose is 30 years from the date of the nuclear incident. ORS 12.137(3).

(§89.6)

Ultimate Repose

See “Generally” above and ULTIMATE REPOSE. In addition, note statutory exceptions including those for products liability cases (see PRODUCTS LIABILITY) and breast implant cases (see MEDICAL AND DENTAL MALPRACTICE). See also “Nuclear Accident” above.

VII.

(§89.7)

Products Liability

A.

An action for wrongful death based on a products liability claim generally must be commenced within two years after death, injury, or damage occurs, except for actions arising out of injury from breast implants. ORS 30.905(2). Kambury ex rel. Kambury v. DaimlerChrysler Corp., 334 Or 367 (2002). See also Thompson v. Communications Technology, Inc. (CTI), 877 F2d 27 (9th Cir 1989).

B.

Subject to the two-year period discussed in paragraph A above, and except as discussed in paragraph C below, an action for wrongful death based on a products liability claim must be commenced not later than eight years after the product is first purchased. See Sealey v. Hicks, 309 Or 387, 788 P2d 435 (1990).

•

EXCEPTIONS: The eight-year statute of limitation for products liability cases does not apply to a claim resulting from asbestos-related disease, which must be commenced within two years after the disease was discovered or reasonably should have been discovered. ORS 30.907. Also, the eight-year statute does not apply to certain actions arising out of injury from breast implants, which must be commenced not later than two years after the date on which the plaintiff first discovered or, in the exercise of reasonable care, should have discovered (1) the death, specific injury, disease, or damage; (2) the tortious nature of the act or omission giving rise to the claim; and (3)

213

WRONGFUL DEATH / §89.9

all other elements required to establish the plaintiff’s claim for relief.

ORS 30.908(1). (See ORS 30.908(4) for limitations to those exceptions.)

C.

Notwithstanding the language of the statute, an action for wrongful death based on a products liability claim may be commenced after the eightyear limitations period has run, as long as the injury occurred within eight years of the first purchase of the product and the action is commenced within two years of the injury complained of. Baird v.

Electro Mart, 47 Or App 565, 615 P2d 335 (1980).

D.

See ASBESTOS; PRODUCTS LIABILITY.

VIII. (§89.8)

Medical Malpractice

A wrongful death action based on medical malpractice must be commenced within three years of discovery of the injury or when the injury reasonably should have been discovered, but in no event later than three years after the death. ORS 30.020(1); Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979).

But see ORS 12.110(4).

IX.

(§89.9)

References

See generally 2 TORTS ch 29 (Oregon CLE 1992 & Supp 2000; 1 DAMAGES ch 13 (Oregon CLE 1998 & Supp 2002).

214

TABLE OF STATUTES AND RULES References are to the section numbers in the text.

Oregon Revised Statutes ORS Section 2.520 – 4.5 ch 10 – 82.1 ch 12 – 20.2, 42.1 9.380 – 9.390 – 86.3 12.010-12.050 – 28.2 12.010 – 20.1, 20.2, 79.3, 85.1 12.020 – 3.1, 3.2, 18.6, 45.1 12.040 – 40.1, 56.1, 64.6 12.050 – 64.2, 64.6 12.060 – 64.1 12.070-12.250 – 28.2 12.070 – 20.1, 20.3 12.080 – 1.1, 2.1, 19.1, 20.1, 20.3, 22.1, 36.1, 44.1, 51.1, 52.2, 60.1, 64.3, 64.4 65.1, 66.1, 73.3, 80.2, 85.1 12.085 – 41.5 12.090 – 1.1, 2.1, 20.2-20.3 12.100 – 42.1-42.2 12.110 – 7.1, 13.7, 14.2, 14.3, 14.5, 14.7, 15.1, 19.2, 20.1, 20.3, 36.1, 37.1, 40.1, 42.2, 46.1, 51.1, 52.1, 55.155.2, 59.1-59.2, 62.1, 64.4, 73.1, 77.2, 80.2, 83.1, 84.1, 84.2, 84.3, 89.5, 89.8 12.115 – 62.1-62.2, 84.1, 84.2, 84.3 12.117 – 7.3, 38.10, 84.2 12.120 – 20.3, 32.1-32.5, 42.1 12.125 – 20.3, 51.1 12.130 – 42.2 12.135 – 6.2, 20.1, 20.3, 42.1, 64.4, 64.6, 80.2, 85.1 12.137 – 64.3, 89.5 12.140 – 14.3, 14.5, 14.7, 20.3, 66.1 12.150 – 73.3 12.155 – 42.1, 45.1, 45.5, 52.1, 73.4, 84.2, 84.3 12.160 – 28.2, 43.3, 55.2, 62.1, 69.2, 73.1, 84.2, 84.3 12.170 – 28.2, 73.1 12.190 – 13.5, 28.3, 30.6, 69.2, 73.2, 77.2, 89.2

ORS Section 12.210 – 13.2, 73.5 12.220 – 35.1-35.2 12.230 – 20.2 12.240 – 2.2, 20.2-20.3 12.250 – 42.1, 62.2 12.272 – 61.1 12.274 – 83.1 12.276 – 28.2, 55.1, 84.1 12.278 – 62.1, 84.1 12.280 – 20.3, 64.7, 84.1 12.282 – 84.1 12.410-12.480 – 16.1 12.430 – 16.2 12.450 – 16.2 12.460 – 16.2 14.260 – 13.2 14.270 – 13.2 18.320 – 48.1 18.325 – 48.1 18.350 – 48.1 18.360 – 38.3, 48.1, 70.1 18.450 – 20.1, 21.1, 21.2 18.500-18.530 – 45.1 18.500 – 45.1 18.520 – 45.1, 73.4 18.530 – 45.1, 73.4 18.609 – 41.1 18.625 – 41.1 18.680 – 41.2 18.690 – 41.2 18.700 – 41.4 18.702 – 41.4 18.708 – 41.4 18.732 – 41.3 18.745 – 41.2 18.752 – 41.3 18.755 – 41.2 18.758 – 41.2 18.780 – 41.5 18.792 – 41.3 18.835 – 41.2 215

TABLE OF STATUTES AND RULES (CONTINUED)

ORS Section 18.902 – 41.1 ch 19 – 88.1-88.3, 89.1 19.240 – 4.3 19.250 – 4.1 19.255 – 4.1 19.300 – 4.2 19.305 – 4.2 19.310 – 4.2 19.345 – 4.2 19.370 – 4.3 19.380 – 4.3 19.385 – 4.3 19.445 – 4.10 20.090 – 34.1 20.098 – 85.2 20.320 – 26.2 23.280 – 48.1 23.490 – 48.4 23.540 – 48.4, 57.3 23.550 – 48.4, 57.3 23.560-23.600 – 57.3 23.560 – 48.4, 57.3, 79.6 25.670 – 48.1 25.080 – 38.7 25.700 – 38.3, 48.1 ch 28 – 31.1 28.010-28.160 – 31.1 28.070 – 31.2 30.020 – 55.1, 62.1, 84.1, 89.1, 89.2, 89.7, 89.8 30.060 – 89.1 30.075 – 28.3, 59.1, 62.1, 77.2, 89.1 30.080 – 89.2 30.090 – 89.2 30.165 – 32.1 30.275 – 14.2, 14.3, 14.4, 14.5, 14.6, 14.7, 18.2, 32.5, 42.1, 43.3, 45.1, 51.3, 55.1, 55.2, 73.1, 74.1, 79.3, 89.1 30.460 – 39.1, 39.2 30.700 – 34.1 30.701 – 34.1-34.2 30.810 – 59.2 30.866 – 71.1-71.2 30.895 – 13.7 30.905 – 20.2, 62.1, 62.2, 84.1, 89.7 30.907 – 6.2, 62.1, 84.1, 89.7 30.908 – 62.1, 89.7

ORS Section 30.980 – 69.1-69.2 33.420 – 86.11 33.460 – 86.11 33.510 – 76.1 33.520 – 76.1 34.030 – 88.1 34.050 – 88.1 34.060 – 88.1 34.080 – 88.1 34.100 – 88.1 34.130 – 88.2 34.150 – 88.2 34.170 – 88.2 34.180 – 88.2 34.190 – 88.2 34.240 – 88.2 34.440 – 88.3 34.500 – 88.3 34.550 – 88.3 34.680 – 88.3 34.710 – 88.3 34.712 – 4.8 36.185 – 54.1 36.190 – 54.1 36.195 – 54.1 36.300-36.365 – 5.1 36.310 – 5.1 36.350 – 5.1 36.355 – 5.1 36.365 – 5.1 36.400-36.425 – 5.2 36.420 – 86.14 36.425 – 5.2, 5.3, 86.14 46.425 – 70.3 46.445 – 70.3 46.455 – 70.3 46.461 – 70.3 46.465 – 70.3 46.475 – 70.3 46.485 – 70.2 46.488 – 70.1 52.010-52.030 – 49.1 52.035 – 49.1 52.110 – 49.1 52.220 – 49.4 52.310 – 49.1 52.320 – 49.1 216

TABLE OF STATUTES AND RULES (CONTINUED)

ORS Section 52.410-52.420 – 49.2 52.530 – 49.3 52.635 – 49.4 52.700-52.710 – 49.4 53.020 – 49.5 53.030 – 49.5 53.040 – 49.5 53.080 – 49.5 53.090 – 49.5 59.115 – 68.1 59.127 – 68.2 59.135 – 68.1-68.2 59.185 – 68.5 59.195 – 68.5 59.265 – 68.4 59.295 – 68.4 59.305 – 68.4 59.810 – 68.3 ch 60 – 25.2 60.004 – 25.1 60.011 – 25.1 60.014 – 25.1 60.017 – 25.1 60.034 – 25.2 60.051 – 25.3 60.057 – 25.3 60.114 – 25.4 60.117 – 25.4 60.144 – 25.5 60.174 – 25.6 60.207 – 25.7 60.211 – 25.7 60.214 – 25.7 60.221 – 25.7 60.231 – 25.7 60.254 – 25.8 60.344 – 25.9 60.444 – 25.10, 25.13 60.487 – 25.11 60.491 – 25.11 60.567 – 25.12 60.581 – 25.12 60.587 – 25.12 60.591 – 25.12 60.634 – 25.13 60.641 – 25.13 60.651 – 25.14

ORS Section 60.657 – 25.14 60.674 – 25.15 60.707 – 25.16 60.727 – 25.16 60.734 – 25.16 60.741 – 25.16 60.771 – 25.17 60.774 – 25.17 60.781 – 25.17 60.787 – 25.18 60.951 – 24.11 60.957 – 24.11 ch 61 – 24.1 62.035 – 23.1 62.050 – 23.1 62.195 – 23.2 62.255 – 23.2, 23.5 62.335 – 23.3 62.425 – 23.6 62.455 – 23.4 62.555 – 23.2, 23.5 62.560 – 23.2 62.720 – 23.6 ch 65 – 24.1, 24.11 65.011 – 24.2 65.017 – 24.2 65.034 – 24.3 65.117 – 24.4 65.167 – 24.5 65.204 – 24.6 65.214 – 24.6 65.231 – 24.6 65.254 – 24.6 65.314 – 24.7 65.484 – 24.8 65.534 – 24.8 65.627 – 24.9 65.641 – 24.10 65.644 – 24.10 65.651 – 24.9 65.771 – 24.11 65.774 – 24.11 65.787 – 24.11 71.1030 – 20.3 72.2010 – 85.1 72.3140 – 85.1 72.3150 – 85.1 217

TABLE OF STATUTES AND RULES (CONTINUED)

ORS Section 72.5030 – 20.3 72.6080 – 85.1 72.7020 – 85.1 72.7140 – 85.1 72.7250 – 1.3, 20.1, 20.3, 35.1, 67.14, 85.1 72.8070 – 58.4, 85.2 73.0118 – 85.3 73.0501 – 85.4 73.0502 – 85.4 73.0503 – 85.4 73.0504 – 85.4 74.1110 – 85.4 74.4010 – 85.4 74.4030 – 85.4 74.4050 – 85.4 74.4060 – 85.4 77.2060 – 85.5 77.2100 – 85.5 77.3070 – 85.5 77.6010 – 85.5 78.1050 – 85.6 78.1130 – 85.6 78.4050 – 85.6 78.4060 – 85.6 79.0101-79.0628 – 67.2 79.0102 – 67.2, 85.6 79.0103 – 67.3, 67.7 79.0104 – 67.2 79.0106 – 85.6 79.0109 – 67.2 79.0203 – 67.4, 85.6 79.0204 – 67.4 79.0210 – 67.5 79.0301 – 67.1, 67.2 79.0302 – 67.1 79.0305 – 85.6 79.0307 – 67.1, 67.2 79.0308-79.0309 – 67.2 79.0312 – 67.2, 85.6 79.0313 – 67.2, 85.6 79.0314 – 67.2, 85.6 79.0315 – 67.2 79.0316 – 67.2 79.0322 – 85.6 79.0323 – 67.6, 85.6 79.0324 – 67.3, 67.6, 67.7 79.0328 – 85.6

ORS Section 79.0502 – 67.8 79.0507 – 67.2, 67.8 79.0509 – 67.10 79.0512 – 67.8 79.0513 – 67.10 79.0514 – 67.11 79.0515 – 67.8, 67.9, 67.10 79.0516 – 67.8 79.0519 – 67.10 79.0523 – 67.12 79.0601 – 67.13 79.0601-79.0628 – 67.14 79.0607 – 67.13 79.0609 – 67.13 79.0610-79.0611 – 67.13 79.0612 – 67.13 79.0613 – 67.13 79.0614 – 67.13 79.0615 – 67.14 79.0620 – 67.13, 67.14 79.0623 – 67.14 79.0624 – 67.14 79.0625 – 67.10, 67.14 80.010 – 8.1 80.100-80.130 – 67.15 80.109 – 67.15 80.112 – 67.15 80.115 – 67.15 80.130 – 67.15 81.010 – 78.1 81.020 – 78.2 81.030 – 78.1 82.300 – 34.1 86.010 – 57.1 86.725 – 57.1 86.740 – 57.2, 57.4 86.742 – 57.4 86.750 – 57.2 86.753 – 57.3 86.755 – 51.4 87.018 – 18.2 87.021 – 18.3 87.025 – 18.3 87.027 – 18.3 87.030 – 18.3 87.035 – 18.2, 18.4 87.039 – 18.5 218

TABLE OF STATUTES AND RULES (CONTINUED)

ORS Section 87.055 – 18.6 87.057 – 18.5 87.076 – 18.7 87.078 – 18.7 87.086 – 18.7 87.093 – 18.2, 18.3 87.152 – 12.1, 12.2 87.156 – 12.3 87.162 – 12.4 87.172 – 12.2-12.4 87.192 – 12.2 87.196 – 12.2 87.206 – 12.2 87.216 – 11.1 87.222 – 11.1 87.226 – 11.3 87.232 – 11.1 87.242 – 11.1, 11.3 87.252 – 11.1, 11.3 87.256 – 11.1 87.266 – 11.2, 11.3 87.272 – 11.2, 11.3 87.316 – 11.2 87.352 – 64.5 87.356 – 64.5 87.358 – 64.5 87.362 – 64.5 87.364 – 64.5 87.366 – 64.5 87.376 – 64.5 87.382 – 64.5 87.445 – 10.1 87.450 – 10.2 87.455 – 10.2 87.460 – 10.2 87.555 – 74.4, 74.5 87.565 – 74.4, 74.5 87.581 – 74.4, 74.5 87.687 – 12.5 87.689 – 12.5 87.691 – 12.5 87.705 – 74.1 87.710 – 74.1 87.730 – 74.1 87.755 – 74.3 87.762 – 74.3 87.772 – 74.3

ORS Section 87.777 – 74.3 87.855 – 74.2 87.860 – 74.2 87.865 – 74.2 ch 88 – 10.2, 64.5 88.010 – 57.1 88.110 – 57.1 88.120 – 57.1 ch 90 – 20.3 90.100-90.875 – 12.4, 51.1 90.110 – 51.1 90.160 – 51.1 90.300 – 51.1 90.380 – 51.1 90.400 – 51.1 90.405 – 51.1 90.420 – 12.4 90.425 – 51.1 90.427 – 51.1 90.429 – 51.1 90.630 – 51.1 90.632 – 51.1 91.040 – 51.2 91.050 – 51.2 91.060 – 51.2 91.070 – 51.1, 51.2 91.090 – 51.2, 79.3 91.110 – 51.1 95.230 – 64.9 95.240 – 64.9 95.280 – 64.9 98.005 – 53.1 98.015 – 53.1 98.130-98.140 – 53.2 98.150 – 53.2 98.160-98.170 – 53.2 98.230 – 53.2 98.308 – 53.3 98.309 – 53.3 98.314 – 53.3 98.326 – 53.3 98.328 – 53.3 98.332 – 53.4 98.334 – 53.4 98.336 – 53.4 98.338 – 53.4 98.342 – 53.4 219

TABLE OF STATUTES AND RULES (CONTINUED)

ORS Section 98.352 – 53.1 98.376 – 53.1 98.392 – 53.1 98.402 – 53.1 105.615 – 64.2 105.620 – 64.2 105.629 – 30.2 105.805 – 51.1 105.850-105.870 – 64.8 105.870 – 64.8 105.950 – 30.11 105.960 – 30.11 ch 106 – 38.2 ch 107 – 38.2 107.065 – 38.1 107.095 – 38.1 107.105 – 38.3, 48.1 107.115 – 38.1 107.126 – 38.3 107.135 – 38.1 107.407 – 38.4 107.412 – 38.4 107.465 – 38.5 107.475 – 38.5 108.040 – 38.6 109.070 – 38.7 109.096 – 38.7 109.125-109.235 – 38.7 109.254 – 38.7 109.381 – 38.6 109.701 – 43.1 110.417 – 38.6 111.185 – 30.4 111.215 – 30.4 111.235 – 30.4 112.810 – 30.1 112.815 – 30.1 112.820 – 30.1 113.005 – 30.2 113.027 – 30.8 113.055 – 30.2 113.075 – 30.2 113.145 – 30.2 113.155 – 30.2 113.165 – 30.2 113.175 – 30.2 113.185 – 30.2

ORS Section 113.225 – 30.3 114.085 – 30.4 114.145 – 30.4 114.255 – 30.3, 89.4 114.515 – 30.5 114.525 – 30.5 114.535 – 30.5 114.540 – 30.5 114.545 – 30.5 114.550 – 30.5 114.555 – 30.5 115.003 – 30.6 115.004 – 30.3, 30.6 115.005 – 30.6, 77.1 115.135 – 30.6 115.145 – 30.6 115.155 – 30.6 115.215 – 30.6 115.305 – 77.1, 89.2 115.325 – 77.1 116.033 – 30.3 116.083 – 30.3 116.093 – 30.7 116.213 – 30.3, 30.7 116.233 – 30.8 116.243 – 30.9 116.253 – 30.9 116.303-116.383 – 30.7 117.005 – 30.10 117.015 – 30.10 117.075 – 30.10 118.171 – 30.4 125.060 – 43.1, 43.4 125.065 – 43.1, 43.2, 43.5 125.075 – 43.1, 43.2, 43.5 125.155 – 43.2, 43.5 125.320 – 43.1 125.325 – 43.2 125.415 – 43.5 125.470 – 43.5 125.475 – 43.5 125.500 – 43.5 125.510 – 43.5 125.515 – 43.5 125.600 – 43.4 125.605 – 43.4 125.610 – 43.4 220

TABLE OF STATUTES AND RULES (CONTINUED)

ORS Section 131.145 – 79.3 138.225 – 4.8 138.500 – 4.3 138.660 – 4.8 147.005 – 7.1 147.015 – 15.1, 15.2 147.065 – 7.1, 15.1, 59.1, 89.1 147.105 – 15.2 163.160 – 7.1 166.715-166.735 – 63.1 166.715 – 63.2 166.725 – 63.1 174.120 – 18.2, 79.1, 79.3, 79.4, 79.7 174.125 – 79.2, 79.4, 79.7 183.310-183.550 – 25.14, 42.3, 68.4 183.310 – 42.3 183.315 – 42.3 183.341 – 42.3 183.400 – 42.3 183.430 – 42.3 183.464 – 42.3 183.482 – 4.6, 42.3, 87.10 183.484 – 42.3 183.500 – 42.3 187.010 – 18.3, 79.2, 79.5 187.020 – 79.2 215.429 – 88.2 227.179 – 88.2 279.526 – 17.3 279.528 – 17.3 279.536 – 17.3 305.280 – 30.4 342.176 – 32.3 346.610 – 14.5 346.630 – 14.5 346.640 – 14.5 346.660 – 14.5 346.680 – 14.5 346.690 – 14.5 359.200-359.255 – 67.7 359.220 – 67.7 359.235 – 67.7 419C.139 – 38.8 419C.150 – 38.8 634.146 – 61.2 634.172 – 61.1 646.608 – 81.1

ORS Section 646.618 – 81.1 646.632 – 81.1 646.638 – 81.1, 81.2 646.641 – 81.2 646.648 – 81.1 646.725 – 81.3 646.730 – 81.3 646.750 – 81.3 646.760 – 81.3 646.800 – 81.3 650.020 – 81.4 652.140 – 36.1 652.510 – 36.2 652.540 – 36.2 652.570 – 36.2 654.305-654.336 – 89.3 654.305 – 36.3 654.325 – 89.3 ch 656 – 87.3 656.001-656.990 – 87.1, 87.4 656.005 – 87.3, 87.7 656.019 – 87.15 656.017 – 87.2 656.027 – 87.4 656.039 – 87.5 656.052 – 87.2 656.054 – 87.2 656.128 – 87.6 656.140 – 87.6 656.202 – 87.7, 87.10 656.204 – 87.7 656.206 – 87.7 656.208 – 87.7 656.210 – 87.7 656.212 – 87.7 656.214 – 87.7 656.216 – 87.7 656.218 – 87.7 656.222 – 87.7 656.225 – 87.7 656.226 – 87.7 656.228 – 87.7 656.230 – 87.7, 87.10 656.232 – 87.7 656.236 – 87.7 656.245 – 87.7, 87.10 656.248 – 87.10 221

TABLE OF STATUTES AND RULES (CONTINUED)

ORS Section 656.260 – 87.10 656.262 – 87.7, 87.8, 87.9, 87.10 656.265 – 87.8 656.267 – 87.8 656.268 – 87.7, 87.9, 87.10 656.277 – 87.8 656.283 – 87.9, 87.10, 87.14 656.287 – 87.10 656.289 – 87.10 656.291 – 87.10 656.295 – 87.10 656.298 – 87.10 656.304 – 87.10 656.313 – 87.7 656.319 – 87.8, 87.10 656.327 – 87.10 656.386 – 87.10 656.419 – 87.5 656.423 – 87.5 656.427 – 87.5 656.440 – 87.5 656.443 – 87.5 656.504 – 87.12 656.505 – 87.12 656.560 – 87.12 656.564 – 87.12 656.566 – 87.12 656.583 – 87.13 656.704 – 87.10, 87.14 656.735 – 87.2, 87.14 656.740 – 87.10, 87.14 656.990 – 87.12 659.121 – 14.2, 14.3 659.860 – 14.6, 14.7 659A.030 – 14.2 659A.040-659A.069 – 14.2 659A.100-659A.145 – 14.2 659A.112 – 14.5 659A.142 – 14.3, 14.5 659A.145 – 14.1, 14.2, 14.4, 14.5, 51.3 659A.183 – 14.2 659A.200-659A.236 – 14.2 659A.250-659A.262 – 14.2 659A.300-659A.321 – 14.2 659A.403 – 14.3, 14.7 659A.421 – 14.1, 14.4, 51.3 659A.820 – 14.1, 14.3, 14.4, 14.5, 14.7

ORS

Section 51.3 659A.835 – 14.1 659A.845 – 14.1 659A.850 – 14.1 659A.870 – 14.1 659A.875 – 14.2, 14.3, 14.4, 14.5, 14.7, 51.3 659A.880 – 14.1 659A.885 – 14.1, 14.2, 14.3, 14.4, 14.5, 51.3 670.600 – 87.6 671.310 – 64.4 672.005 – 64.4 677.097 – 55.1 701.005 – 17.2 701.010 – 17.1 701.065 – 18.1 701.145 – 17.2 701.146 – 17.2 701.150 – 17.2 742.001 – 45.6 742.061 – 45.6 742.230 – 45.5 742.238 – 45.5 742.240 – 20.2, 20.3, 45.5 742.504 – 45.2 743.225 – 45.3 743.429 – 45.4 743.441 – 45.4 803.105 – 58.1, 58.3 813.410 – 86.12 819.230 – 12.2 ch 826 – 58.1

222

223

TABLE OF STATUTES AND RULES (CONTINUED)

Oregon Rules of Civil Procedure ORCP Section 1 A – 79.1 3 – 3.1-3.2 4 K – 38.2 7 – 3.1, 38.2 7 C – 13.1, 13.4, 49.1, 79.2 7 D – 13.1, 57.2, 73.3 10 – 18.2, 79.1-79.4, 79.7, 86.1 10 A – 79.1-79.3 10 C – 13.2, 79.2 13 – 13.2 14 A – 13.2 15 A – 13.1, 13.4, 79.2 15 B – 13.1 15 C – 13.1 15 D – 13.1 21 – 72.2, 86.5 21 A – 13.2 21 B – 13.2 21 C – 13.2 21 D – 13.2 21 E – 13.2 21 F – 13.2 21 G – 13.2, 72.2 22 C – 13.4 22 D – 13.4 23 – 86.5, 88.2 23 A – 13.1 23 C – 72.4 28 – 13.4 29 – 13.4 33 B – 13.2 33 C – 13.2 33 D – 13.2 34 B – 13.5, 28.1 34 C – 13.5, 28.2 34 F – 77.2 36-46 – 86.5 36 C – 33.3 39 A – 33.1 39 C – 33.1 39 F – 33.2 39 I – 33.3 40 A – 33.4 41 C – 33.2, 33.4 41 D – 33.2

ORCP Section 43 B – 33.5 43 D – 33.5 45 A – 33.7 45 B – 33.7 47 A – 75.1 47 B – 75.1 47 C – 75.1-75.3 47 H – 75.3 54 A – 13.6, 55.2 54 B – 35.1 55 D – 33.5 55 H – 33.6 55 I – 33.6 57 A – 82.1 62 A – 82.2 62 B – 82.2 62 C – 82.2 62 D – 82.2 63 C – 82.3 63 D – 4.1, 82.3 63 F – 82.3 64 F – 4.1, 48.3, 79.3, 82.3 64 G – 82.3 67 B – 75.3 68 C – 10.3, 26.1 69 A – 13.1, 48.2 70 A – 5.1 71 B – 48.3 79 A – 13.2 79 B – 13.2 79 C – 13.2 79 E – 13.2 80 C – 13.3 80 F – 13.3 80 G – 13.3 82 A – 65.1 82 F – 76.1 83 – 13.2, 65.2 84 A – 9.1 84 F – 9.2 85 – 65.1 85 A – 65.2 85 E – 65.1-65.2 224

TABLE OF STATUTES AND RULES (CONTINUED)

Oregon Rules of Appellate Procedure ORAP Section 1.20 – 4.4 1.25 – 4.11 2.20 – 4.10 2.35 – 4.7 3.05 – 4.3 3.30 – 4.3 3.33 – 4.3 3.40 – 4.3 3.45 – 4.3 3.63 – 4.3 4.15 – 87.10 4.20 – 4.6 5.80 – 4.3-4.4 6.25 – 4.4-4.5 7.05 – 4.8 7.25 – 4.8 7.30 – 4.8 9.05 – 4.5 9.10 – 4.5 9.25 – 4.5 11.10 – 4.9 11.15 – 4.9 13.05 – 4.10, 26.2 13.10 – 4.10 13.25 – 4.10

225

TABLE OF STATUTES AND RULES (CONTINUED)

Uniform Trial Court Rules UTCR Section 1.010 – 86.1 1.050 – 86.1 1.130 – 79.1, 86.1 2.010 – 86.1 2.030 – 86.2 2.080 – 86.5 3.140 – 86.3 3.170 – 86.3 4.010 – 86.4 4.060 – 86.4 5.010 – 86.5 5.030 – 86.5 5.050 – 86.5 5.060 – 86.5 5.080 – 10.3 5.090 – 86.5 5.100 – 86.6 6.020 – 86.4, 86.5 6.030 – 86.5 6.040 – 86.5 6.050 – 86.6 6.060 – 86.6 6.080 – 86.6 6.120 – 86.6 6.130 – 86.7 6.140 – 86.6 7.010 – 86.4 7.020 – 86.8 7.030 – 86.8 7.040 – 86.8 7.050 – 86.8 7.060-7.070 – 86.8 8.010 – 38.1, 86.9 8.040 – 38.1, 86.9 8.050 – 38.1, 86.9 9.050 – 86.10 9.160 – 86.10 9.180 – 86.10 9.320 – 86.11 10.040 – 86.12 10.050 – 86.12 10.060 – 86.12 10.070 – 86.12

UTCR Section 10.090 – 86.6, 86.12 11.010 – 86.13 11.020 – 86.13 11.040 – 86.13 11.050 – 38.8, 86.13 11.060 – 38.8, 86.13 13.040 – 5.2, 86.14 13.050 – 5.2, 86.14 13.070 – 5.2, 86.14 13.080 – 5.2, 86.14 13.120 – 86.14 13.160 – 5.2, 86.14 13.170 – 5.2, 86.14 13.210 – 5.3, 86.14 13.220 – 5.3, 86.14 13.240 – 5.3, 86.14 13.250 – 5.3, 86.14

226

TABLE OF STATUTES AND RULES (CONTINUED)

Oregon Administrative Rules OAR Section 137-040-0045 – 17.3 436-060-0150 – 87.7 438-007-0015 – 87.10 438-007-0016 – 87.10 438-007-0018 – 87.10 812-003-0025 – 18.1 United States Code 11 USC § 108(a-c) – 73.5, 74.5 11 USC § 546(b) – 73.5, 74.5 11 USC § 546(c)(1)(B) – 85.1 15 USC § 15b – 63.1, 82.3 15 USC § 1691 – 14.7 18 USC § 1962 – 63.1 20 USC §§ 1400-1454 – 14.7 20 USC §§ 1415 – 14.7 20 USC §§ 1681-1688 – 14.7 20 USC § 1701 – 14.7 20 USC § 1706 – 14.7 28 USC § 1343 – 14.7 29 USC § 201 – 14.7 29 USC § 206 – 14.7 29 USC § 255 – 14.7 29 USC §§ 621-634 – 14.7 29 USC § 626 – 14.7 29 USC § 633 – 14.7 29 USC § 794 – 14.7 40 USC § 270a-270d – 17.3 42 USC § 1981 – 14.7 42 USC § 1982 – 14.7 42 USC § 1983 – 14.7 42 USC § 1985 – 14.7 42 USC § 1986 – 14.7 42 USC § 2000a – 14.7 42 USC § 2000d – 14.7 42 USC § 2000e – 14.7 42 USC § 3601 – 14.7 42 USC § 3604 – 14.7 42 USC §§ 3610 – 3613 – 14.7 42 USC § 3613 – 14.7, 51.3 42 USC §§ 12101-12117 – 14.7 42 USC § 12111 – 14.7 42 USC § 12117 – 14.7 42 USC § 12131 – 14.7

42 USC §§ 12131-12133 – 14.7 42 USC §§ 12181-12182 – 14.7 42 USC § 12182 – 14.7

227

TABLE OF STATUTES AND RULES (CONTINUED)

Code of Federal Regulations 28 CFR § 42.107 – 14.7 29 CFR § 100.570 – 14.7 29 CFR § 1614.101 – 14.7 29 CFR § 1614.103 – 14.7 29 CFR § 1614.105 – 14.7

228

TABLE OF CASES References are to the section numbers in the text.

Adams v. Oregon State Police, 289 Or 233, 611 P2d 1153 (1980) 42.1, 89.1 th 14.7 Addisu v. Fred Meyer, Inc., 198 F3d 1130, 1140 (9 Cir 2000) Agency Holding Corp. v. Malley-Duff & Assoc. Inc., 483 U.S. 143; 107 S. Ct. 2759; 97 L. Ed. 2d 121 (1987) 63.1 Akins v. Bucyrus-Erie, 115 Or App 222, 837 P2d 981 (1992) 62.2 Al Disdero Lumber Co. v. Dick W. Ebeling, Inc., 95 Or App 671, 770 P2d 945 (1989) 84.1 Albino v. Albino, 279 Or 537, 568 P2d 1344 (1977) 50.2, 83.2 Alderson v. State of Oregon, 105 Or App 574, 806 P2d 142 (1991) 35.2 Allen v. Lawrence, 137 Or App 181, 903 P2d 919 (1995) 52.2, 80.3 Allen v. Lococo, 252 Or 195, 448 P2d 569 (1968) 3.1 Anais v. Dias, 70 Or App 478, 689 P2d 1011 (1984) 65.1 Anderson v. Carden, 146 Or App 675, 934 P2d 562 (1997) 68.1, 68.2 Angelini v. Delaney, 156 Or App 293, 966 P2d 223 (1998), rev den, 328 Or 594 (1999) 29.2 Aronsen v. Crown Zellerbach, 662 F2d 584, 593 (9th Cir 1981) 14.7 Asher v. Hald, 100 Or App 630, 788 P2d 468 (1990) 55.1 Ashmun v. G and H Ranches, Inc., 48 Or App 945, 618 P2d 462 (1980), adh’d to on recons, 49 Or App 625, 619 P2d 1359 (1980) 12.4 Ausplund v. Aetna Indemnity Co., 47 Or 10, 81 P 577 (1905) 20.3 Baird v. Electro Mart, 47 Or App 565, 615 P2d 335 (1980) 62.2, 89.7 Baker v. Kennedy, 317 Or 372, 856 P2d 314 (1993) 45.1 Banda v. Danner, 87 Or App 69, 741 P2d 514 (1987), aff’d, 307 Or 302 (1988) 55.2 Barke v. Maeyens, 176 Or App 471, 31 P3d 1133 (2001), rev den, 333 Or 655 (2002) 55.1, 84.4 Barnard v. Lannan, 112 Or App 625, 829 P2d 723 (1992) 52.2 Barrington v. Sandberg, 164 Or App 292, 991 P2d 1071 (1999) 19.3 Bauman v. Clark, 203 Or 193, 272 P2d 214 (1954) 77.1 Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979) 55.1, 89.8 Beals v. Breeden, 113 Or App 566, 833 P2d 348 (1992) 64.4, 84.1 Beetham v. Georgia-Pacific, 87 Or App 592, 743 P2d 755 (1987) 35.2 Ben Rybke Co. v. Royal Globe Insurance Co., 293 Or 513, 651 P2d 138 (1982) 20.3, 45.5 Benj. Franklin Fed. Savings and Loan v. Phillips, 88 Or App 354, 745 P2d 437 (1987) 10.3 Bennett v. Reliable Credit Assn., Inc., 125 Or App 531, 865 P2d 496 (1993) 67.2, 81.2 Berry v. Branner, 245 Or 307, 421 P2d 996 (1966) 20.2 Beveridge v. King, 292 Or 771, 643 P2d 332 (1982) 64.4 Biomass One, L.P. v. S-P Construction, 103 Or App 521, 799 P2d 152 (1990) 20.3 Bonner v. Arnold, 296 Or 259, 676 P2d 209 (1984) 77.1 Border v. Indian Head Industries, Inc., 101 Or App 556, 792 P2d 111 (1990) 62.1, 62.2, 84.1 Bradbury v. Teacher Standards and Practices Comm., 151 Or App 176, 947 P2d 1145 (1997), aff’d, 328 Or 391, 977 P2d 1153 (1999) 32.3 229

TABLE OF CASES (CONTINUED)

Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976) 31.1 Brooks v. Smith, 27 Or App 441, 556 P2d 696 (1976) 31.1 Brownstein v. Pearson, 166 Or App 120, 997 P2d 300 (2000) 52.2 Brusco v. Brusco, 241 Or 550, 407 P2d 645 (1965) 72.1 Buell v. Deschutes Co. Mun. Imp. Dist., 208 Or 56, 298 P2d 1000 (1956) 20.2 Cabal v. Donnelly, 302 Or 115, 727 P2d 111 (1986) 80.3 Cary v. Cary, 159 Or 578, 80 P2d 886 (1938) 38.9 Casey v. Manson Construction and Engineering Co., 247 Or 274, 428 P2d 898, 905 (1967).

16.2 Castro v. Ogburn, 140 Or App 122, 914 P2d 1 (1996) 72.1 Chada v. Tapp, 277 Or 3, 558 P2d 1225 (1977) 76.2 Chaney v. Fields Chevrolet, 264 Or 21, 503 P2d 1239 (1972) 67.14, 72.3, 85.1 Charles Schwab & Co. v. Pletz, 95 Or App 48, 768 P2d 407 (1989) 13.1 City of Medford v. Budge-McHugh Supply Co., 91 Or App 213, 754 P2d 607 (1988) 42.1 City of Springfield v. $10,000.00 In U.S. Currency, 95 Or App 66, 767 P2d 476 (1989), aff’d, 309 Or 272 (1990).

79.3 City of The Dalles v. D=Electric Co., 105 Or App 46, 803 P2d 771 (1990) 17.3 Clackamas Gastroenterology Assocs. P.C., v. Wells, 271 F3d 903 (9th Cir 2001), cert granted, 123 S Ct 31, 153 L Ed2d 893 (US 2002) 14.7 Coe v. Statesman-Journal Co., 277 Or 117, 560 P2d 254 (1977) 32.3 Colwell v. Chernabaeff, 258 Or 373, 482 P2d 157 (1971) 13.2 Computer Concepts, Inc. v. Brandt, 98 Or App 618, 780 P2d 249 (1989), aff'’d, 310 Or 706 (1990) 63.2 Condon v. Bank of California, 92 Or App 691, 759 P2d 1137 (1988) 83.1 Cooksey v. Portland Public School Dist. No. 1, 143 Or App 527, 923 P2d 1328 (1996) 42.1 Cooley v. Roman, 286 Or 807, 596 P2d 565 (1979) 1.2 Corvallis Sand & Gravel v. Land Board, 250 Or 319, 439 P2d 575 (1968) 50.2 County of Washington v. Gunther, 452 US 161, 175, 101 S Ct 2242, 2250, 68 L Ed2d 751 (1981) 14.7 Cramer v. Stonebridge Inn, 77 Or App 407, 713 P2d 645 (1986) 47.1 Credithrift v. Novak, 44 Or App 483, 605 P2d 1380 (1980) 67.7 Creditors Protective Assoc., Inc. v. Britt, 58 Or App 230, 648 P2d 414, (1982) 81.1 Cropp v. Interstate Distributor Co., 129 Or App 510, 880 P2d 464 (1994) 16.2 Culver v. Andres, 26 Or App 809, 554 P2d 541 (1976) 29.2 Dauven v. St. Vincent Hospital, 130 Or App 584, 883 P2d 241 (1994) 80.3 Davis v. Blanchard, 84 Or App 99, 733 P2d 460 (1987) 84.2, 84.3 Davis v. Bostick, 282 Or 667, 580 P2d 544 (1978) 19.1, 19.3, 46.1 Davis v. Harvey, 789 F2d 1332 (9th Cir 1986) 14.7 Davis v. Somers, 140 Or App 567, 915 P2d 1047 (1996) 52.1 14.7 Daviton v. Columbia/HCA Healthcare Corp., 241 F3d 1131, 1135-36 (9th Cir 2000) DeLay v. Marathon LeTourneau Sales, 291 Or 310, 630 P2d 836 (1981) 84.1, 84.3 Denora v. Fischer Eng., 55 Or App 448, 638 P2d 490 (1982) 19.1 Diamond v. Huffman, 64 Or App 330, 667 P2d 1040 (1983) 32.2 Dixon v. Schoonover, 226 Or 443, 359 P2d 115 (1961) 27.2 Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981) 14.2, 72.3 Dockins v. State Farm Ins. Co., 329 Or 20, 985 P2d 796 (1999) 45.6 230

TABLE OF CASES (CONTINUED)

Donohoe v. Mid-Valley Glass Co., 84 Or App 584, 735 P2d 11 (1987) 72.3 Dotson v. Smith, 307 Or 132, 764 P2d 540 (1988) 45.1 Dowers Farms v. Lake County, 288 Or 669, 607 P2d 1361 (1980) 89.1 Duncan v. Dubin, 276 Or 631, 556 P2d 105 (1976) 45.1 Duree v. Blair, 179 Or App 534, 40 P3d 540 (2002) 48.4 Durham v. City of Portland, 181 Or App 409, 45 P3d 998 (2002) 72.4 Duvall v. McLeod, 331 Or 675, 21 P3d 88 (2001) 48.2 E.A. Mock & Sons, Inc. v. Mehdizadehkashi, 91 Or App 453, 755 P2d 739 (1988) 4.1 E.E.O.C. v. First Citizens Bank of Billings, 758 F2d 397, 401 (9th Cir 1985) 14.7 Edwards v. Wilcoxen, 278 Or 91, 562 P2d 1207 (1977) 56.2 Empire Holding Corp. v. Coshow, 150 Or 252, 41 P2d 426 (1935) 26.2 Erickson Air-Crane Co. v. United Tech. Corp., 303 Or 281, 735 P2d 614 (1987) 62.2 Evans v. Hogue, 296 Or 745, 681 P2d 1133 (1984) 64.2, 64.6 Everman v. Lockwood, 144 Or App 28, 925 P2d 128 (1996) 22.1, 65.1 14.7 Farrell v. Bank of New Hampshire-Portsmouth, 929 F2d 871 (1st Cir 1991) Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990) 14.2, 14.7 FDIC v. Smith, 328 Or 420, 980 P2d 141 (1999) 20.2, 32.4 Fearing v. Bucher, 328 Or 367, 977 P2d 1163 (1999) 84.2 Federal Land Bank of Spokane v. Glenn, 100 Or App 262, 785 P2d 1069 (1990) 79.6 Felder v. Casey, 487 US 131, 140; 108 S Ct 2302, 2307-2308 (1988) 14.7 Fessler v. Quinn, 143 Or App 397, 923 P2d 1294 (1996) 80.3 Fireman=s Fund Ins. Co. v. Nizdil, 709 F Supp 975 (D Or 1989) 76.2 First Federal v. Gruber, 290 Or 53, 618 P2d 1265 (1980) 79.6 First Nat. Bank v. Mobil Oil, 272 Or 672, 538 P2d 919 (1975) 79.5 First Nat=l Bk. v. Jack Mathis Gen. Cont., 274 Or 315, 546 P2d 754 (1976) 29.1 First West. M=tgage v. Hotel Gearhart, 260 Or 196, 488 P2d 450 (1971) 56.2 Fliegel v. Davis, 73 Or App 546, 699 P2d 674 (1985) 52.2 Fox & Co. v. Roman Catholic Bishop, 107 Or 557, 215 P 178 (1923) 18.4 Frevach Land Co. v. Multnomah Co. Dept. of Environmental Services, 2000 WL 1875893 (D Or 2000) 72.3 Fuller v. Safeway Stores, 258 Or 131, 481 P2d 616 (1971) 35.1 Furlong v. Tish, 189 Or 86, 218 P2d 476 (1950) 49.5 Gary M. Buford and Associates, Inc. v. Guillory, 98 Or App 691, 780 P2d 783 (1989) 73.3 Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994) 32.4, 40.2, 55.1, 55.2, 84.1 Georgetown Realty v. The Home Ins. Co., 313 Or 97, 831 P2d 7 (1992) 20.3, 80.3 Giuletti v. Oncology Associates of Oregon, P.C., 178 Or App 260, 36 P3d 510 (2001) 28.3, 84.1 Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001) 20.2, 62.1, 62.2 Godfrey v. Bick & Monte, 77 Or App 429, 713 P2d 655 (1986) 52.2 Gordon v. Schumacher, 83 Or App 544, 733 P2d 35 (1987) 78.1 Grant v. Paddock, 30 Or 312, 47 P 712 (1897) 79.6 Green v. Coos Bay Wagon Road Co., 23 F 67 (CC Or 1885) 20.2 Green v. Housing Auth. of Clackamas Co., 994 F. Supp. 1253, 1255 (D Or 1998) 14.7 231

TABLE OF CASES (CONTINUED)

Greene v. Legacy Emanuel Hosp. Health Care Center, 165 Or App 543, 997 P2d 265 (2000), aff’d, 335 Or 115 (2002) Guiley v. Hammacker, 55 Or App 921, 640 P2d 664 (1982) Gust v. Edwards Co., 129 Or 409, 274 P2d 919 (1929) Hale v. Groce, 304 Or 281, 744 P2d 1289 (1987) Harmon v. Fred Meyer, 146 Or App 295, 933 P2d 361 (1997) Hatley v. Truck Insurance Exchange, 261 Or 606, 494 P2d 426 (1972) Heino v. Harper, 306 Or 347, 759 P2d 253 (1988) Hendgen v. Forest Grove Community Hospital, 109 Or App 177, 818 P2d 966 (1991) Herman v. Valley Ins. Co., 145 Or App 124, 928 P2d 985 (1996) Hiatt v. Congoleum Indus., Inc., 279 Or 569, 569 P2d 567 (1977) Hoeck v. Schwabe, Williamson & Wyatt, 149 Or App 607, 945 P2d 534 (1997) Holdner v. Columbia County, 51 Or App 605, 627 P2d 4 (1981) Holdner v. Oregon Trout, Inc., 173 Or App 344, 22 P3d 244 (2001) Holien v. Sears, Roebuck and Co., 66 Or App 911, 677 P2d 704, aff’d 298 Or 76, 689 P2d 1292 (1984) Hollin v. Libby, McNeil & Libby, 253 Or 8, 13, 452 P2d 555 (1969) Hotelling v. Walther, 169 Or 559, 130 P2d 944 (1942) Housing Authority of Portland v. Ash Nat=l., 36 Or App 391, 584 P2d 776 (1978) Hovden and Hovden, 104 Or App 514, 802 P2d 89 (1990) Huff v. Great Western Seed Co., 322 Or 457, 909 P2d 858 (1996) Huff v. Shiomi, 73 Or App 605, 699 P2d 1178 (1985) Hurley v. Shinmei Kisen K. K., 98 Or App 180, 779 P2d 1041 (1989) Hylton y. Phillips, 270 Or 766, 529 P2d 906 (1974) In re Legislative Apportionment, 228 Or 575, 365 P2d 1042 (1961) In re Standard Cafeteria Co., 68 Or 550, 137 P 774 (1914) Jamison v. Spencer R.V. Center, Inc., 98 Or App 529, 779 P2d 1091 (1989) Jaqua v. Nike, Inc., 125 Or App 294, 865 P2d 442 (1993) Jaquith v. Ferris, 297 Or 783, 687 P2d 1083 (1984) Jewell v. Compton, 277 Or 93, 559 P2d 874 (1977) Johnson v. Henderson, 314 F3d 409, 412 (9th Cir 2002) Johnson v. Kentner, 71 Or App 61, 691 P2d 499 (1984) Johnson v. MacGregor, 55 Or App 374, 637 P2d 1362 (1981) Jones v. Bierek, 88 Or App 11, 743 P2d 1153 (1987), aff’d, 306 Or 42 (1988) Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988) Jorgensen v. Pressnall, 274 Or 285, 545 P2d 1382 (1976) Kabban v. Mackin, 104 Or App 422, 801 P2d 883 (1990) Kambury ex rel. Kambury v. DaimlerChrysler Corp., 334 Or 367 (2002) Kang v. U. Lim America, Inc., 296 F3d 810 (9th Cir 2001) Kashmir Corp. v. Barnes, 278 Or 433, 564 P2d 693 (1977) Kearney v. Montgomery Ward & Co., 55 Or App 641, 639 P2d 682 (1982) Kenner v. Schmidt, 252 Or 218, 448 P2d 537 (1969) Kirk v. Rose, 218 Or 593, 346 P2d 90 (1959) Kling v. County of Los Angeles, 633 F2d 876 (9th Cir 1980) Kraemer v. Harding, 159 Or App 90, 976 P2d 1160, rev den, 329 Or 357 (1999)

55.2 28.2 65.1 52.2, 80.3 72.4 35.1 38.9 72.4 45.5, 72.4 48.3 52.2 19.2 32.4 14.2 20.2 19.2, 55.3 85.1 38.3 14.2 44.1 3.2 37.2 79.3 79.6 62.2 80.3 52.2 27.3 14.7 72.3 72.4 51.1 55.1, 72.2 85.1 72.3 62.1, 89.7 14.7 64.4 62.1 3.1 79.6 14.7 32.1 232

TABLE OF CASES (CONTINUED)

Krauel v. Dykers Corp., 173 Or App 336, 21 P3d 1124 (2001) 72.4 Lamb v. Young, 250 Or 228, 441 P2d 616 (1968) 27.2, 27.3 Lang v. Hill, 226 Or 371, 360 P2d 316 (1961) 59.1 th Laquaglia v. Rio Hotel & Casino, Inc., 186 F3d 1172, 1176 (9 Cir 1999) 14.7 Lawson v. Coos Co. School Dist. #13, 94 Or App 387, 765 P2d 829 (1988) 42.1, 45.1 Lemire v. McCollum, 246 Or 418, 425 P2d 755 (1967) 18.2 Lewis v. Merrill, 228 Or 541, 365 P2d 1052 (1961) 7.2, 27.1, 72.5 Lindemeier v. Walker, 272 Or 682, 538 P2d 1266 (1975) 80.1 Locus Bldg. Partnership v. Gladys Ent., 62 Or App 792, 662 P2d 15 (1983) 79.3 Loewen v. Galligan, 130 Or App 222, 882 P2d 104 (1994) 68.1, 68.2 Lord Electric Co. v. Pac. Intermountain Exp. Co., 282 Or 335, 578 P2d 776 (1978) 65.1 Lourim v. Swensen, 147 Or App 425, 936 P2d 1011 (1997) 84.2 Luchini v. Harsany, 98 Or App 217, 779 P2d 1053 (1989) 43.3, 55.2, 73.1 Lulay v. Lulay, 247 Or 497, 429 P2d 802 (1967) 83.1 Lyden v. Goldberg, 260 Or 301, 490 P2d 181 (1971) 72.3 Lyons v. Kamhoot, 281 Or 615, 618, 575 P2d 1389 (1978) 12.4 Macy v. SAIF Corp., 2000 US Dist LEXIS 2905 (D Or 2000) 14.7 Magenis v. Fisher Broadcasting, Inc., 103 Or App 555, 798 P2d 1106 (1990) 32.3 Malaer v. Flying Lion, Inc., 65 Or App 154, 670 P2d 214 (1983) 72.3 Markovich v. Chambers, 122 Or App 503, 857 P2d 906 (1993) 65.2 Massey v. Ore.-Wash. Plywood Co., 223 Or 139, 353 P2d 1039 (1960) 20.3 Masters v. Secretary of State, 88 Or App 221, 744 P2d 1309 (1987) 32.5 Mathies v. Hoeck, 284 Or 539, 588 P2d 1 (1978) 40.2 McComas v. Bocci, 166 Or App 150, 996 P2d 506 (2000) 52.2 McCoy v. San Francisco, City and County, 14 F3d 28, 29 (9th Cir 1994) 14.7 McCraw v. Stapp, 82 Or App 79, 727 P2d 160 (1986) 80.2 McCulloch v. Price Waterhouse LLP, 157 Or App 237, 971 P2d 414 (1998), rev. denied, 328 Or 365 (1999) 81.1 McGregor Co. v. Heritage, 291 Or 420, 631 P2d 1355 (1981) 11.3 McNeely v. Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992) 35.1 Meissner v. Murphy, 58 Or App 174, 647 P2d 972 (1982) 77.1 Melgard v. Hanna, 45 Or App 133, 607 P2d 795 (1980) 52.2 Metropolitan Property & Casualty v. Harper, 168 Or App 358, 7 P3d 541 (2000) 80.1, 80.2 Mid-Valley Resources, Inc. v. Engelson, 170 Or App 255, 13 P3d 118 (2000), rev den, 332 Or 137 (2001) 64.2 Middleton v. Chaney, 177 Or App 679, 34 P3d 722 (2001), aff’d as mod, 335 Or 58 (2002) 43.1 th 14.7 Miller v. American Express Co., 688 F2d 1235, 1239 (9 Cir 1982) Miller v. Miller, 101 Or App 371, 790 P2d 1184 (1990) 65.2 Minisce v. Thompson, 149 Or App 746, 945 P2d 582 (1997) 45.1 Minor v. Leisure Lodge, Inc., 154 Or App 301, 961 P2d 915 (1998) 79.2 Moini v. Hewes, 93 Or App 598, 763 P2d 414 (1988) 20.2 Molalla Pump v. Chaney, 42 Or App 789, 601 P2d 874 (1979) 18.4 Moore v. Ball, Janik & Novak, 120 Or App 466, 852 P2d 937 (1993) 35.1 233

TABLE OF CASES (CONTINUED)

Moore v. Mutual of Enumclaw Ins. Co., 317 Or 235, 855 P2d 626 (1993) 20.2 Moorman Manufacturing Co. v. Hall, 113 Or App 30, 830 P2d 606 (1992) 1.3, 20.3 Morgan v. Kerrigan, 530 F2d 401 (1st Cir 1976) 14.7 Mosley v. Allstate Ins. Co., 165 Or App 304, 996 P2d 513 (2000) 45.6 Multnomah Co. v. United States F. Etc. Co., 87 Or 198, 170 P 525 (1918) 17.3 National Mortgage Co. v. Robert C. Wyatt, Inc., 173 Or App 16, 20 P3d 216, rev den, 332 Or 430 (2001) 48.3 National R.R. Passenger Corp v. Morgan, 122 S Ct 2061, 2077, 153 L Ed2d 106 (2002) 14.7 Niedermeyer v. Dusenberry, 275 Or 83, 549 P2d 1111 (1976) 52.2 Nooteboom v. Bulson, 153 Or App 361, 956 P2d 1042, rev den, 327 Or 431 (1998) 64.2 Northwest Fndry. v. Willamette Mfg., 268 Or 343, 521 P2d 545 (1974) 2.2, 20.3 Oden v. N. Marianas College, 284 F3d 1058; (9th Cir 2002) 14.7 Oregon State Bar v. Wright, 309 Or 37, 785 P2d 340 (1990) 50.1 O’Riley v. United States Bakery, 2002 US Dist LEXIS 25538 (D Or 2002) 14.7 Ostlund v. Ostlund, 98 Or App 540, 779 P2d 1096 (1989) 38.3 Owings v. Rosé, 262 Or 247, 497 P2d 1183 (1972) 20.1, 44.1 Pacheco v. Blatchford, 91 Or App 390, 754 P2d 1219 (1988) 48.3 Palmore v. Kirkman Laboratories, 270 Or 294, 527 P2d 391 (1974) 59.2 Parker v. Richards, 43 Or App 455, 602 P2d 1154 (1979) 65.1 Pelster v. Walker, 185 F. Supp. 2d 1174 (2001) 42.1 Pepper Burns Insulation, Inc. v. Artco Corporation, 970 F2d 1340 (4th Cir 1992) 17.3 Perez v. Bay Area Hospital, 315 Or 474, 846 P2d 405 (1993) 42.1, 43.3, 55.2, 73.1 Peterson v. Temple, 323 Or 322, 918 P2d 413 (1996) 65.1 PGE v. Bureau of Labor and Industries, 317 Or 606, 610-611, 859 P2d 1143 (1993) 84.1 Phariss v. Welshans, 150 Or App 498, 946 P2d 1160 (1997) 38.6 Pickern v. Holiday Quality Foods, Inc., 293 F3d 1133 (9th Cir), cert den, 123 S Ct 559 (2002) 14.7 th Pieri v. Dammasch State Hosp. 77 F3d 490 (9 Cir 1996) 14.7 Pipkin v. Zimmer, 113 Or App 737, 833 P2d 1350 (1992) 73.4 Press v. Todd Investment Co., 98 Or App 93, 778 P2d 506 (1989) 72.4 Pritchett v. Fry, 286 Or 189, 593 P2d 1133 (1979) 10.3 Propp v. Long, 313 Or 218, 831 P2d 685 (1992) 79.3 Purcell v. Asbestos Corp., Ltd., 153 Or App 415, 959 P2d 89, adh'd to in part on reh’g, 155 Or App 1, 963 P2d 729 (1998), rev den, 329 Or 358 (1999) 6.2 Quick v. Andresen, 238 Or 433, 395 P2d 154 (1964) 35.1, 35.2 Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973) 85.1 Rennie v. Pozzi, 294 Or 334, 656 P2d 934 (1982) 89.4, 89.1 Rice v. Terwilliger Plaza, Inc., 65 Or App 74, 670 P2d 188 (1983) 77.1 Richer v. Poisson, 137 Or App 157, 903 P2d 932 (1995) 46.1 Rise v. Steckel, 59 Or App 675, 652 P2d 364 (1982) 50.1, 50.2 Rivers v. Roadway Express, 511 US 298, 114 S Ct 1510, 128 L Ed2d 274 (1994) 14.7 Roberts v. Drew, 105 Or App 251, 804 P2d 503 (1991) 28.2 Rogue River Management Co. v. Shaw, 243 Or 54, 411 P2d 440 (1966) 27.2, 27.3 Rogue Val. Mem. Hosp. v. Salem Ins., 265 Or 603, 510 P2d 845 (1973) 74.4 Sandgathe v. Jagger, 165 Or App 375, 996 P2d 1001 (2000) 52.2 Sanok v. Grimes, 306 Or 259, 760 P2d 228 (1988) 35.1, 42.1 234

TABLE OF CASES (CONTINUED)

Santa Maria v. Pacific Bell, 202 F3d 1170, 1176 (9th Cir 2000) 14.7 Savage v. Kramer, 95 Or App 166, 768 P2d 425 (1989) 65.1 Schafer v. Fraser, 206 Or 446, 290 P2d 190 (1955) 20.2 Schenck v. Oregon Television, Inc., 146 Or App 430, 934 P2d 480 (1997) 32.1 Schmidling v. Dove, 65 Or App 1, 670 P2d 166 (1983) 4.1, 82.3 School District No 1J, Multnomah County, Oregon v. AC&S, Inc., 5 F3d 1255 (9th Cir 1993) 6.2 Sealey v. Hicks, 309 Or 387, 788 P2d 435 (1990) 89.7 Securities-Intermountain v. Sunset Fuel, 289 Or 243, 611 P2d 1158 (1980) 20.3, 80.1, 80.2 Serles v. Beneficial Oregon, Inc., 91 Or App 697, 756 P2d 1266 (1988) 80.3 Severson v. Youngdahl, 102 Or App 54, 792 P2d 482 (1990) 48.3 Shasta View Irrigation Dist. v. Amoco Chemicals, 329 Or 151, 986 P2d 536 (1999) 62.2 Shaw v. Zabel, 267 Or 557, 517 P2d 1187 (1974) 28.2, 73.1 Shelton v. Paris, 199 Or 365, 261 P2d 856 (1953) 36.3 Shenefield v. Axtell, 274 Or 279, 545 P2d 876 (1976) 32.2 Sheppard v. Yokum and DeLashmutt, 10 Or 402, 3 P 824 (1882) 22.2 Shives v. Chamberlain, 168 Or 676, 126 P2d 28 (1942) 19.2, 55.3 Simpson v. Burrows, 90 F Supp 2d 1108 (D Or 2000) 19.3, 32.1 Simpson v. Simpson, 83 Or App 86, 730 P2d 592 (1986) 72.2 Smith v. Abel, 211 Or 571, 316 P2d 793 (1957) 20.2 Smith v. Riker, 88 Or App 579, 746 P2d 247 (1987) 45.1 South Lake Center v. Waker Associates, Inc., 129 Or App 581, 879 P2d 1342 (1994) 80.3 Southern Pacific Co. v. Morrison-Knudsen Co., 216 Or 398, 338 P2d 665 (1959) 44.2 Southwest Forest Industries, Inc., v. Vanply, Inc., 43 Or App 347, 357, 602, P2d 1113 (1979) 44.2 Spady v. Hawkins, 155 Or App 454, 963 P2d 125 (1998) 43.1 Sponseller v. Meltebeke, 280 Or 361, 570 P2d 974 (1977) 64.6, 85.1 State ex rel Nilsen v. B. Jacques Chev., 16 Or App 552, 520 P2d 366 (1974) 36.1 State ex rel AFSD v. Tuttle, 304 Or 270, 744 P2d 990 (1987) 38.7 State ex rel Adult & Fam. Ser. v. Bradley, 295 Or 216, 666 P2d 249 (1983) 38.7 State ex rel Stadter v. Patterson, 197 Or 1, 251 P2d 123 (1952) 79.6 State ex rel Marbet v. Keisling, 314 Or 235, 838 P2d 585 (1992) 88.2 State v. Chatfield, 148 Or App 13, 939 P2d 55 (1997) 79.3, 79.6 State v. Vanderburg, 98 Or App 428, 781 P2d 1216 (1989) 26.2 Stephens v. Bohlman, 314 Or 344, 838 P2d 600 (1992) 89.1 Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993) 52.2 Stevens v. Scanlon, 248 Or 229, 430 P2d 1019 (1967) 35.1 Stricklin v. Soued, 147 Or App 399, 936 P2d 398 (1997) 16.2 Stull v. Hoke, 141 Or App 150, 917 P2d 69 (1996), aff’d in part, rev’d in part, 326 Or 72 (1997) 22.1 Stupek v. Wyle Laboratories Corp., 327 Or 433, 963 P2d 678 (1998) 14.2, 79.3 Sun Solutions v. Brandt, 300 Or 317, 709 P2d 1079 (1985) 18.3 Sunshine Dairy v. Jolly Joan, 234 Or 84, 380 P2d 637 (1963) 1.2 Sutter v. Bingham Construction, Inc., 81 Or App 16, 724 P2d 829 (1986) 64.4 235

TABLE OF CASES (CONTINUED)

S.V. v. Sherwood Sch. Dist., 254 F3d 877 (9th Cir 2001) 14.7 Taylor v. Regents of Univ. of Cal., 993 F2d 710, 712 (1993) 14.7 Te-Ta-Ma Truth Foundation v. Vaughan, 114 Or App 448, 835 P2d 938 (1992) 35.1 Tharp v. Jackson, 85 Or 78, 165 P 585 (1917) 20.2 Thompson v. Communications Technology, Inc. (CTI), 877 F2d 27 (9th Cir 1989) 89.7 Tikka v. Martin, 271 Or 287, 532 P2d 18 (1975) 35.1 Tualatin Valley Builders Supply v. TMT Homes, 179 Or App 575, 41 P3d 429 (2002) 18.7 Tulsa Professional Collection Services v. Pope, 485 US 478, 108 S Ct 1340, 99 L Ed2d 565 (1988) 30.6 Twombley v. Wulf, 258 Or 188, 482 P2d 166 (1971) 76.2 Tyree v. Tyree, 116 Or App 317, 840 P2d 1378 (1992) 18.2, 42.1, 79.3, 79.4 U S West Communications, Inc. v. Eachus, 124 Or App 325, 862 P2d 102 (1993) 35.1 U.S. Nat=l Bank v. Davies, 274 Or 663, 548 P2d 966 (1976) 52.1, 52.2, 65.1 United Employer v. Dept. of Ins. and Finance, 133 Or App 477, 892 P2d 722 (1995) 47.2 United Pac. Ins. Co. v. Stanford, 486 F2d 556 (9th Cir 1973) 76.2 Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 918 P2d 453 (1996), rev den, 329 Or 287, 994 P2d 122 (1999).

19.2, 55.1, 55.3, 84.1 Van Wormer v. City of Salem, 309 Or 404, 788 P2d 443(1990) 89.1 Vandermeer v. Pacific Northwest Dev. Corp., 284 Or 517, 587 P2d 98 (1978) 35.2 Vollertsen v. Lamb, 302 Or 489, 732 P2d 486 (1987) 51.1 Wadsworth Plumbing v. Tollycraft Corp., 277 Or 433, 560 P2d 1080 (1977) 85.1 Waybrant v. Clackamas County, 54 Or App 740, 635 P2d 1365 (1981) 72.4 Webber v. Olsen, 157 Or App 585, 971 P2d 448 (1998), rev’d on other grounds, Webber v. Olsen, 330 Or 189 (1999) 16.2 Welch v. Bancorp Management Services, 296 Or 208, 675 P2d 172 (1983) 72.4 Western Feed Co. v. Heidloff, 230 Or 324, 370 P2d 612 (1962) 20.2 White v. Gurnsey, 48 Or App 931, 618 P2d 975 (1980) 20.2, 32.4 Whittington v. Davis, 221 Or 209, 350 P2d 913 (1960) 73.3 Widing v. Schwabe, Williamson & Wyatt, 154 Or App 276, 961 P2d 889 (1998) 40.2 Wilson v. Garcia, 471 US 261, 105 S Ct 1938, 85 L Ed2d 254 (1985) 14.7 Withers v. Milbank, 67 Or App 475, 678 P2d 770 (1984) 52.1, 84.1 Woodriff v. Ashcraft, 263 Or 547, 503 P2d 472 (1972) 20.3, 50.2, 66.1 Woods v. James W. Fowler Co., 168 Or App 308, 313, 7 P3d 577 (2000) 48.3 Workman v. Rajneesh Foundation International, 84 Or App 226, 733 P2d 908 (1987) 20.2, 32.4 Wright v. Hage, 214 Or 400, 330 P2d 342 (1958) 27.2 Wright v. Osborne, 151 Or App 466, 949 P2d 321 (1997), rev den, 327 Or 448 (1998) 73.3 Zehr v. Haugen, 318 Or 647, 871 P2d 1006 (1994) 80.3 Zelig v. Blue Point Oyster Co., 61 Or 535, 113 P 852 (1911) 79.6 Zurcher v. Booth, 80 Or 335, 157 P 147 (1916) 20.2

236

SUBJECT INDEX References are to the section numbers in the text.

Abuse Child abuse, 38.10 Account Action on, 2.1-2.3, 20.2 Assumpsit, 2.2 Stated, 1.1-1.3 Accrual of Action Breach of contract of sale, 85.1 Contract actions, 20.2, 85.1 Defamation claims, 32.4 Medical malpractice, 55.2 Wrongful death, 89.1 Actions Commencement, 3.1-3.2 Complaint, 3.1 Contract vs. tort, 80.1-80.3 On account, 2.1-2.3, 20.2 Service, 3.1 Tort vs. contract, 80.1-80.3 Administrative Proceedings Administrative Procedures Act, 42.3 Application, 42.3 Emergency license suspension, 42.3 Generally, 42.3, 42.4 Hearing officer=s proposed order, 42.3 Review of, 4.6, 42.3 Antitrust Generally, 81.3 Appeal Administrative proceeding, review of, 4.6, 42.3 Agreed narrative statement, 4.3 Attorney fees, 4.10 Audio/video, 4.3 Briefs, 4.4 Computation of time, 4.11 Costs, 4.10, 26.2 Declaratory judgment, appeal of, 31.2 Justice courts, 49.5 Mandamus, 4.9, 88.2 Motions, 4.8

Notice of, 4.1, 4.3 Petition for review, 4.5 Reconsideration, 4.4-4.5 Small claims, 70.2 Summary determination of appealability, 4.7 Transcript, 4.3 Undertaking on, 4.2 Workers= compensation review, see Workers= Compensation Writ of review, 88.1 Wrongful death, 89.1 Arbitration Arbitrator fee, 86.14 Assignment, 86.14 Attorney fees, 5.3, 86.14 Awards, 5.3, 86.14 Challenge to award, 86.14 Costs, 5.3, 86.14 Court, 5.2 Exemption, 86.14 Generally, 5.1, 86.14 Prehearing statement of proof, 86.14 Scheduling, 86.14 UTCR, 86.14 Asbestos Generally, 6.1, 6.3 Products liability, 6.2, 62.1 Assault and Battery Counterclaim, 7.2 Generally, 7.1, 7.3 Assignment Generally, 8.1-8.2 Secured transactions, 67.11 Assumpsit Action on account, 2.1 Attachment Generally, 9.1-9.3

237

SUBJECT INDEX (CONTINUED)

Attorney Fees Appeal, fees on, 4.10 Arbitration, 5.3, 86.14 Generally, 10.1, 10.3 Insurance, 45.6 Lien on judgment, 10.2 Money judgment, 10.2 Personal property judgment, 10.2 Real property judgment, 10.2 Objections, 10.3 Pleadings, 10.3 Procedure, 10.3 Warranty action on consumer goods, 85.2 Banks Checks, 34.1-34.2 Lost property, 53.3 Transactions, see Uniform Commercial Code Battery See Assault and Battery Blue Sky Laws See Securities Briefs Appellate, 4.4 Chattel Liens Nonpossessory Agricultural lien, 11.3, 74.1 Foreclosure, 11.2 Generally, 11.1, 11.4 Possessory Foreclosure, 12.2 Generally, 12.1, 12.6 Innkeeper=s lien, 12.3 Landlord lien, 12.4 Self-service storage facility lien, 12.5 Checks, Dishonored Generally, 34.1-34.2 Civil Rights See Discrimination Closed Courthouse See Computation of Time Computation of Time Amendments, 79.7 Appellate rules, 4.11

Closed public office, 79.2 Generally, 79.1, 79.6 Month, 79.6 ORCP 10, 79.2 Oregon Tort Claims Act, 79.3 ORS references, 79.3-79.5 Service, 79.2 Year, 79.6 Conflict of Laws Generally, 16.1-16.3 Conservators Generally, 43.5-43.6 Protective proceedings, generally, 43.1, 43.6 Construction Bond claim CCB claims, 17.1-17.2 Licensing, 17.1 Miller Act, federal, 17.3 Miller Act, state, 17.3 Notice, receipt of, 17.3 Private projects, 17.2 Public projects, 17.3 Lien Calculation of days, 18.2 Cash deposit, 18.7 Claim, 18.4 Contractor licensing, 18.1 FDCPA, 18.2 Foreclosure, 18.6 Notices, generally, 18.2, 18.8 Notices, postlien, 18.5 Notices, prelien, 18.3 Release bond, 18.7 Contracts Accrual of action, 20.2, 85.1 Breach of contract of sale, see Uniform Commercial Code Discovery rule, 20.2 Exceptions Contract limitations periods, 20.3, 85.1 Employment agreements, 20.3 Fire insurance, 20.3, 45.5 Generally, 20.3

238

SUBJECT INDEX (CONTINUED)

Contracts (continued) Exceptions Improvement to real property, 20.3, 64.4 Independent standard of care, 20.3 Reformation, 20.3 Rental agreements, 20.3 Sale of goods, 20.3 Sealed instruments, 20.3 Surveyors, 20.3, 64.7 Generally, 20.1, 20.4 Installment, see Installment Contracts Reformation of, 66.1-66.2 Tort vs., 80.1-80.3 UCC, see Uniform Commercial Code Contribution Generally, 21.1-21.3 Conversion Generally, 22.1-22.3 Corporations Actions without a meeting, 25.7 Annual report, 25.18 Articles, amendment of, 23.5, 25.10 Cooperative Annual reports, 23.4 Articles, amendment of, 23.5 Court proceedings, 23.3 Documents, 23.1 Generally, 23.7 Meetings, 23.2 Unclaimed distributions, 23.6 Court-ordered meetings, 25.7 Directors= meetings, 25.9 Disposition of assets after dissolution, 25.15 Dissenters= rights, 25.12 Dissolution Administrative, 25.14 Nonprofit corporation, 24.9 Voluntary, 25.13 Documents, 23.1, 24.2, 25.1 Foreign, 25.16 Generally, 25.19 Incorporation, 25.3 Merger, 25.11 Nonprofit

Claims against dissolved, 24.10 Directors, 24.7 Dissolution, 24.9 Documents, 24.2 Expulsion of member, 24.5 Generally, 24.1 Meetings, 24.6 Merger, 24.8 Notices, 24.3 Records, 24.11 Reports, 24.11 Registered agent, 24.4 Sale, 24.8 Notices, 24.3, 25.2 Proxy, 25.7 Records, 24.11, 25.17 Registered agent, 24.4, 25.4 Share exchange, 25.11 Shareholders= meetings, 25.7 Shareholders= preemptive rights, 25.6 Subscription for shares, 25.5 Voting trusts, 25.8 Costs and Disbursements Appellate court, 4.10, 26.2 Arbitration, 5.3, 86.14 Trial court, 4.10, 26.1 Counterclaim Assault and battery, 7.2 Generally, 27.1 Creditors Extension of limitations period in bankruptcy, 73.5 Generally, 29.1-29.3 Installment contracts, see Installment Contracts Criminal Proceedings UTCR, 86.4 Victims= compensation, 15.1-15.3 Death Party, disability of, 28.2 Party, death of, 28.1, 73.2, 77.2 Unfiled action, 28.3 Wrongful, see Wrongful Death

239

SUBJECT INDEX (CONTINUED)

Debtors Creditors= rights, 29.1-29.3 Extension of limitations period in bankruptcy, 73.5 Installment contracts, see Installment Contracts Decedents= Estates Absentees, estates of, 30.10 Accounting, 30.7 Administration, 30.2, 30.4, 30.12 Claims against, 30.6 Closing, 30.7 Distribution, 30.7 Escheat, 30.9 Generally, 30.2, 30.4, 30.12 Opening of, 30.2 Personal representative Action against, 30.6 Generally, 30.2, 30.3, 30.7 Wrongful death, 89.1, 89.4 Reopening, 30.8 Rule against perpetuities, 30.11 Small estates, 30.5 Special administrator, 30.2 Wills, 30.1 Declaratory Judgment Appeals, 31.2 Generally, 31.1, 31.3

Ultimate repose, see Ultimate Repose Waiver of, 72.2 Depositions See Discovery Disability ADA accommodations (UTCR), 86.8 Discrimination, See Discrimination Interpreters (UTCR), 86.8 Party, disability of, 28.2 Tolling of limitations period, 28.2, 73.1 Disbursements See Costs and Disbursements Discovery Admissions, request for, 33.7 Depositions Corrections to, 33.2 Generally, 33.1 Perpetuation, 33.3 Written, 33.4 Generally, 33.8 Perpetuation of testimony, 33.3 Production of Documents, 33.5 Production of Hospital/Medical Records, 33.6 Rule, see Accrual of Action Discovery Rule See Accrual of Action

Defamation Claims related to, 32.3 Correction or retraction, 32.1 Discovery rule, 32.4 False light, 32.3 Generally, 32.1, 32.3, 32.6 Oregon Tort Claims Act, 32.5 Slander of title, 32.2

Discrimination Disabled Persons, 14.5 Education, 14.6 Employment, 14.2 Federal claims, 14.7 Generally, 14.1 Housing discrimination, 14.4 Public accommodation, 14.3

Defenses Affirmative defense, 72.1 Amended pleading, 72.4 Counterclaim, 72.5 Dismissal, effect of, 35.2 Estoppel, 72.3 Generally, 72.6 Relation back Amended pleading, 72.4 Counterclaim, 72.5

Dismissal, Effect of Before trial, 13.6 Defenses, effect on, 35.2 Generally, 35.1 Nonsuit, 35.2 Reversal, 35.2 Savings clause, 35.1 Document Filing UTCR, 86.6 240

SUBJECT INDEX (CONTINUED)

Domestic Relations Adoption, 38.6 Child abuse, 38.10 Contesting support order, 38.6 Dissolution, 38.1 Expenses of the family, collection on, 38.6 Filiation, 38.7 Generally, 38.11 Jurisdiction, 38.2 Juvenile proceedings, 38.8 Liens, 38.3 Paternity, 38.7 Separation, 38.5 Spousal immunity, 38.9 Spousal support, 38.4 UTCR, 86.9

Generally, 41.6 Interrogatories, 41.5 Response, 41.2

Employment Discrimination, 14.1 Employer Liability Law, 36.3, 89.3 Generally, 36.4 Unlawful employment practice, 14.1 Wage claims, 36.2 Wages, 36.1 Workers= compensation, see Workers= Compensation

Guardian Ad litem, 43.3 Generally, 43.2, 43.6 Protective proceedings, generally, 43.1, 43.6 Temporary, 43.4

Ex Parte Matters UTCR, 86.5 False Arrest/Imprisonment Generally, 37.1-37.3 Family Law See Domestic Relations Fines and Forfeitures Generally, 39.1-39.2 Forcible Entry and Detainer (FED) See Landlord-Tenant Fraud and Deceit Discovery of, 40.2 Fraudulent transfer and conveyance, 64.9 Generally, 40.1-40.3 Garnishment Allegations, 41.5 Challenge, 41.4 Delivery and duration of writ, 41.1 Delivery of property, 41.3

Governmental and Public Bodies Administrative procedures, see Administrative Proceedings Commencement of action, 42.1 Escape of prisoner, 42.1 Exceptions, 42.1 Forfeiture, 42.2 Generally, 42.1 Malpractice, medical or dental, 55.1 Notice, 42.1 Oregon Tort Claims Act, 42.1 Penalty, 42.2 Wrongful death, 42.1

Habeas Corpus Writ of, 88.3 Indemnity Generally, 44.1, 44.2 Insurance Advance payment, 45.1, 73.4 Attorney fees, 45.6 Fire, 20.3, 45.5 Generally, 45.7 Health, 45.4 Life, 45.3 Uninsured motorist coverage, 45.2 Intentional Infliction of Emotional Distress Generally, 19.3, 46.1, 46.2 Intentional Interference Generally, 19.3, 47.1-47.3 Interpreters UTCR, 86.8

241

SUBJECT INDEX (CONTINUED)

Judgment Attorney liens on, see Attorney Fees Default judgment, 48.2 Execution, 48.4 Justice courts, 49.4 Lien Attorney liens, see Attorney Fees Generally, 48.1 N.O.V., 82.3 Redemption, 48.4 Relief from, 48.3 Set aside, 82.3 Summary, see Summary Judgment Jury Selection, 82.1 Waiver of, 86.7 Justice Courts Appeals, 49.5 Generally, 49.1 Judgments, 49.4 Jury trials, 49.2 Pleadings, 49.1 Venue, change of, 49.3 Juvenile Proceedings Appointed counsel, 86.13 Dispositional hearing, 86.13 Generally, 38.8 Predispositional investigation, 86.13 UTCR, 86.13 Laches Applicability, 50.1 Definition, 50.2 Generally, 50.1-50.3 Landlord-Tenant Generally, 51.1, 51.5 Lien, landlord, 12.4 Residential Landlord and Tenant Act, 51.1 Tenancies not subject to RLTA, 51.2 Trust deed foreclosures, 51.4 Unlawful discrimination in housing, 51.3 Libel See Defamation

Liens Agricultural lien, 11.3, 74.1 Attorney, see Attorney Fees Chattel, see Chattel Liens Construction, see Construction Domestic relations, 38.3 Employee benefit plan, 74.2 Generally, 74.6 Grain producer=s lien, 74.3 Hospital lien, 74.4 Innkeeper=s lien, 12.3 Judgment liens, see Judgment Landlord lien, 12.4 Nonpossessory, see Chattel Liens Physician=s lien, 74.5 Possessory, see Chattel Liens Self-service storage facility lien, 12.5 Lost Property Abandoned, 53.3, 53.4 Bailment, 53.2 Banks, 53.3 Claim for unclaimed property, 53.1 Consignment, 53.2 Finder=s duty, 53.1 Generally, 53.4 Instruments, 53.3 Miscellaneous property, 53.4 Reporting, 53.1 Statute of limitations, 53.1 Malpractice Dental Accrual of action, 55.2 Continuing treatment, 19.2, 55.3 Discovery rule, 55.2 Generally, 19.2, 55.1, 55.4 Informed consent, 55.1 Public bodies, 55.1 Ultimate repose, 19.2, 55.1, 84.1 Legal Accrual of action, 52.2 Generally, 52.1, 52.3 Medical Accrual of action, 55.2 Breast implants, 55.1, 62.1, 84.1 Continuing treatment, 19.2, 55.3 Discovery rule, 55.2 242

SUBJECT INDEX (CONTINUED)

Malpractice (continued) Medical Generally, 19.2, 55.1, 55.4 Informed consent, 55.1 Negligence, 55.1 Public bodies, 55.1 Ultimate repose, 19.2, 55.1, 84.1 Wrongful death, 55.1, 89.8 Mandamus Generally, 4.9, 88.2 Mediation Generally, 54.1 Referral to, 54.1 Stipulation, 54.1 Minors Disability of a party, 28.2 Medical bills, 59.2 Products liability claims, 62.1 Ultimate repose, 84.2 Mistake Application, 56.2 Generally, 56.1 Mortgages and Trust Deeds Foreclosure Cure, 57.3 Generally, 57.1 Notice, 57.2 Omitted parties, 57.4 Redemption, 57.3 Generally, 57.1 Motions Amended pleading, 13.1, 13.2 Appellate, 4.8 Conferring on, 86.4 Generally, 13.2 Intervention, 13.2 New trial, 82.3 Preliminary injunction, 13.2 Recusal, 13.2 Response to, 86.5 Set aside judgment, 82.3 Summary judgment, see Summary Judgment Temporary restraining order, 13.2

Generally, 58.5 Records, See UTCRs Records correction, 86.10 Security interest, 58.3 Transfer of title, 58.1, 58.3 Generally, 58.1 Dealer, 58.1 Lease, 58.1 Warranty, 58.4 Name Change UTCR, 86.12 Negligence Failure of duty, 19.2 Trustee, 83.1 Nuisance Generally, 19.1 Oregon Tort Claims Act Generally, 42.1, 79.4 Defamation claims, 32.5 Federal civil rights claims, 14.7 Tolling, 42.1, 43.3, 45.1 Wrongful death claims, 89.1 Personal Injury Generally, 59.1, 59.3 Medical bills of injured minor child, 59.2 Personal Property Attorney lien on judgment, 10.2 Generally, 60.1, 60.2 Lost property, see Lost Property Recovery of possession Generally, 65.1, 65.3 Procedure, 65.2 Wrongful dispossession, 65.1 Pesticides Generally, 61.1, 61.3 Liability claims, 61.1 Records, 61.2 Pleadings Amended Motion for, 13.1 Relation back, 72.4

Motor Vehicles 243

SUBJECT INDEX (CONTINUED)

Pleadings (continued) Attorney fees, 10.3 Generally, 13.1 Justice courts, 49.1 Products Liability Asbestos, 6.2, 62.1 Breast implants, 55.1, 62.1, 84.1 Generally, 62.1, 62.3 Minors= claims, 62.1, 84.2 Ultimate repose, 62.2, 89.6 Wrongful death, 62.1, 89.7 Protective Proceedings Conservator, 43.5-43.6 Generally, 43.1, 43.6 Guardian, see Guardian Racketeering (RICO) Generally, 63.1, 63.3 Proof, 63.2 Real Property Adverse possession, 64.2 Attorney lien on judgment, 10.2 Fraudulent transfer and conveyance, 64.9 Generally, 64.6 Improvement to, 20.3, 64.4 Irrigation, 64.5 Land preparation, 64.5 Land sale contract, 64.1 Mining, 64.5 Mortgage, see Mortgages and Trust Deeds Nurseries, 64.5 Right, claim, or interest in, 64.6 Street use restriction, 64.8 Surveyors, 20.3, 64.7 Trespass, 19.1, 64.3 Waste, 64.3 Receivers Generally, 13.3 Recoupment Generally, 27.2 Reformation of Contract Generally, 66.1-66.2

Accounting, debtor=s request for, 67.5 Agricultural liens, 67.1 Assignment, 67.11 Attachment, 67.4 Consignment, 67.7 Continuation statement, 67.9 Farm products, 67.15 Filing, 67.8 Generally, 67.1, 67.2 Jurisdiction, 67.2 Perfection, 67.2 Priority, 67.6 Purchase-money security interest, 67.3, 67.6, 67.7 Remedies of debtor Conversion, 67.14 Redemption, 67.14 Secured party=s liability, 67.14 Remedies of secured party Collection, 67.13 Compulsory disposition, 67.13 Default, 67.13 Sale, 67.13 Termination statement, 67.10 UCC search, 67.12 Securities Broker, action against, 68.3 Director=s actions, 68.4 Licenses, expiration of, 68.5 Purchaser, action against, 68.2 Records, 68.5 Seller, action against, 68.1 Service Generally, 3.1 Setoff Generally, 27.3 Settlement Late, 86.5 Notice of, 86.5 Sex Change UTCR, 86.11

Review See Appeal Secured Transactions 244

SUBJECT INDEX (CONTINUED)

Ski Resorts Action, 69.2 Notice to, 69.1

Injunction, 73.5 Statutory prohibition, 73.5 Ultimate repose, see Ultimate Repose

Slander See Defamation Small Claims Appeals, 70.2 Generally, 70.3 Judgment, 70.1

Tort vs. Contract Analysis, 80.2 Case law, 80.3 Generally, 80.1-80.3

Stalking Generally, 71.1, 71.2 Stipulated Matters UTCR, 86.5 Substitution of Parties Generally, 13.5 Summary Judgment Generally, 75.3, 75.4 Motion Generally, 75.1 Opposition to, 75.2 Surety Discharge of, 76.1 Limitation of action, 76.2 Objection to, 76.1 Survival of Actions Death of party, 28.1, 73.2, 77.2 Generally, 77.1, 77.3 Tender and Receipt Generally, 78.1 Objection to tender, 78.2 Third-Party Practice Generally, 13.4 Time Computations See Computations of Time Tolling Absence of defendant, 73.3 Advance payments, 45.1, 73.4 Bankruptcy, extension of limitations period in Creditor=s action, 73.5 Debtor=s action, 73.5 Death of party, 28.1, 73.2, 77.2 Disability, 28.2, 73.1

Trade Practices Antitrust laws, 81.3 Franchise transactions, 81.4 Generally, 81.5 Unlawful debt collection practices, 81.2 Unlawful trade practices Investigative demand, 81.1 Private action, 81.1 Public prosecution, 81.1 Trespass Generally, 19.1, 64.3 Trial Proceedings Court rules, see Uniform Trial Court Rules Date of trial, 86.8 Ex parte matters, 86.5 Judgment N.O.V., 82.3 Jury selection, 82.1 New trial motion, 82.3 Set aside judgment, motion to, 82.3 Special findings, 82.2 Stipulated matters, 86.5 Written communications, 86.5 Trust Deeds See Mortgages and Trust Deeds Trusts Constructive, 83.2 Generally, 83.1, 83.3 Negligent trustee, 83.1 Ultimate Repose Breast implants, 55.1, 62.1, 84.1 Constitutional challenges, 84.4 Disabilities, statute not tolled by, 84.3 Generally, 84.1 Malpractice, medical and dental, 19.2, 55.1, 84.1 Minors= claims, 62.1, 84.2

245

SUBJECT INDEX (CONTINUED)

Ultimate Repose (continued) Products liability, 62.2 Wrongful death, 89.6 Uniform Commercial Code Bank transactions Death or incompetence, 85.4 Dishonor, 85.4 Presentment, 85.4 Stop payment, 85.4 Unauthorized signature, 85.4 Bills of lading, 85.5 Breach of contract of sale Accrual of action, 85.1 Contract limitations period, 85.1 Generally, 85.1 Insolvent buyer, 85.1 Limitation by agreement, 85.1 Objection to contract, 85.1 Other remedies, 85.1 Revocation of acceptance, 85.1 Warranty, breach of, 85.1 Commercial paper, 85.3 Enforcement of lien, 85.5 Investment securities, 85.6 Lost documents, 85.5 Merchant=s lien, 85.5 Notice of sale, 85.5 Secured transactions, see Secured Transactions Warehouseman=s lien, 85.5 Warranty action on consumer goods Attorney fees, 85.2 Generally, 85.2 Uniform Trial Court Rules ADA accommodations, 86.8 Advisement, matters under, 86.2 Arbitration, 86.14 Civil proceedings, 86.5 Criminal proceedings, 86.4 Decorum in proceedings, 86.3 Document filing, 86.6 Domestic relations, 86.9 Generally, 86.1 Interpreters, 86.8 Judicial duties, 86.2 Jury, waiver of, 86.7 Juvenile court proceedings, 86.13

Motor vehicle records correction, 86.12 Name change, 86.11 Probate, 86.10 Sex change, 86.11 Trial date, 86.4, 86.8 Victims= Compensation Generally, 15.1-15.3 Wills See Decedents’ Estates Generally, 30.1 Workers= Compensation Aggravation, 87.8 Beneficiary, 87.3 Benefits Claim disposition, 87.7 Death, 87.7 Generally, 87.7 Medical services, 87.7 Permanent partial disability, 87.7 Permanent total disability, 87.7 Temporary disability, 87.7 Temporary partial disability, 87.7 Casual worker, 87.4 Civil negligence action, 87.15 Civil penalty, 87.14 Child, 87.3 Claims procedure Aggravation, 87.8 Appeal of denials, 87.8 Closure, 87.9 Delay, 87.8 Disposition agreement, 87.7 Employer’s obligation, 87.8 Expedited, 87.10 Generally, 87.8 New medical condition, 87.8 Notices, 87.8 Omitted condition, 87.8 Reconsideration, 87.9 Temporary disability, 87.8 Worker’s obligation, 87.8 Closure, 87.9 Coverage Cancellation of, 87.5 Effective date, 87.5 246

SUBJECT INDEX (CONTINUED)

Workers’ Compensation (continued) Dependent, 87.3 Final order, 87.10 Generally, 87.1 Hearing Board review, 87.10 Court of appeals review, 87.10 Deadlines, 87.10 De facto denials, 87.10 Evidence, 87.10 Expedited, 87.10 Final order, 87.10 Generally, 87.10 Reconsideration, 87.10 Request, 87.10 Waiver of, 87.10 Lump-sum award, 87.10 Noncomplying employer, 87.2 Notices, 87.8 Reconsideration, 87.9 Review Board review, 87.10 Court of appeals review, 87.10 SAIF-insured employer, 87.12 Self-insured employer, 87.11 Sole proprietor, 87.6 Third person, recovery against, 87.13

Wrongful Death Appeal, 89.1 Discovery rule, 89.1 Employer Liability Law, 36.3, 89.3 Generally, 89.1, 89.9 Governmental and public bodies, 42.1 Malpractice, medical and dental, 55.1, 89.8 Nuclear accident, 89.5 Oregon Tort Claims Act, 89.1 Personal representative, 89.1, 89.4 Products liability, 62.1, 89.7 Ultimate repose, 89.6 Wrongdoer, death of, 89.2 Wrongful Use of Civil Proceeding Generally, 13.7

Writs Generally, 88.4 Habeas corpus, writ of, 88.3 Mandamus, writ of, 4.9, 88.2 Review, writ of, 88.1

247