Relating to noneconomic damages; creating new provisions; amending ORS 18.570, 18.592, 30.298, 30.650, 124.100, 260.532 and 742.544; repealing ORS 18.560; and prescribing an effective date.

 
 
 
     72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1328
 
                         Senate Bill 93
 
Sponsored by Senator MORSE
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Imposes cap of $300,000 on amount of noneconomic damages that
may be awarded in civil action seeking damages arising out of
bodily injury, death or property damage.
  Takes effect only if Oregon Constitution is amended as proposed
by Senate Joint Resolution 2 (2003).
 
                        A BILL FOR AN ACT
Relating to noneconomic damages; creating new provisions;
  amending ORS 18.570, 18.592, 30.298, 30.650, 124.100, 260.532
  and 742.544; repealing ORS 18.560; and prescribing an effective
  date.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) Except for claims subject to ORS 30.260 to
30.300 and ORS chapter 656, in any civil action seeking damages
arising out of bodily injury, including emotional injury or
distress, death or property damage of any one person including
claims for loss of care, comfort, companionship and society and
loss of consortium, the amount awarded for noneconomic damages
may not exceed $300,000.
  (2) As used in this section:
  (a) 'Economic damages' means objectively verifiable monetary
losses including but not limited to reasonable charges
necessarily incurred for medical, hospital, nursing and
rehabilitative services and other health care services, burial
and memorial expenses, loss of income and past and future
impairment of earning capacity, reasonable and necessary expenses
incurred for substitute domestic services, recurring loss to an
estate, damage to reputation that is economically verifiable,
reasonable and necessarily incurred costs due to loss of use of
property and reasonable costs incurred for repair or for
replacement of damaged property, whichever is less.
  (b) 'Noneconomic damages' means subjective, nonmonetary losses,
including but not limited to pain, mental suffering, emotional
distress, humiliation, injury to reputation, loss of care,
comfort, companionship and society, loss of consortium,
inconvenience and interference with normal and usual activities
apart from gainful employment.
  (3) This section does not apply to punitive damages.
  (4) The jury shall not be advised of the limitation set forth
in this section. + }
  SECTION 2. ORS 18.570 is amended to read:
  18.570. A verdict   { - shall - }   { + must + } set forth
separately economic damages and noneconomic damages, if any, as
defined in   { - ORS 18.560 - }  { +  section 1 of this 2003
Act + }.
  SECTION 3. ORS 18.592 is amended to read:
  18.592. (1) Except as provided in this section, a plaintiff may
not recover noneconomic damages, as defined in   { - ORS
18.560 - }  { + section 1 of this 2003 Act + }, in any action for
injury or death arising out of the operation of a motor vehicle
if the plaintiff was in violation of ORS 806.010 or 813.010 at
the time the act or omission causing the death or injury
occurred. A claim for noneconomic damages shall not be considered
by the jury if the jury determines that the limitation on
liability established by this section applies to the claim for
noneconomic damages.
  (2) For the purpose of the limitation on liability established
by this section, a person is conclusively presumed to have been
in violation of ORS 806.010 or 813.010 if the person is convicted
in a criminal proceeding of one or both of those offenses. If the
person has not been convicted of violating ORS 806.010 or
813.010, the defendant in the civil action may establish in the
civil action, by a preponderance of the evidence, that the
plaintiff was in violation of ORS 806.010 or 813.010 at the time
the act or omission causing the death or injury occurred.
  (3) The court shall abate a civil action upon the motion of any
defendant in the civil action against whom a plaintiff has
asserted a claim for noneconomic damages if the defendant alleges
that the claim of the plaintiff is subject to the limitation on
liability established by this section and:
  (a) A criminal proceeding for a violation of ORS 813.010 has
been commenced against the plaintiff in the civil action at the
time the motion is made; or
  (b) The district attorney for the county in which the conduct
occurred informs the court at the time the motion is made that
criminal proceedings for a violation of ORS 813.010 will be
commenced against the plaintiff in the civil action.
  (4) The court may order that only the claim that is subject to
the limitation on liability established by this section be abated
under subsection (3) of this section. An abatement under
subsection (3) of this section shall remain in effect until the
conclusion of the criminal proceedings.
  (5) The limitation on liability established by this section
does not apply if:
  (a) The defendant in the civil action was also in violation of
ORS 806.010 or 813.010 at the time the act or omission causing
the death or injury occurred;
  (b) The death or injury resulted from acts or omissions of the
defendant that constituted an intentional tort;
  (c) The defendant was engaged in conduct that would constitute
a violation of ORS 811.140 at the time the act or omission
causing the death or injury occurred; or
  (d) The defendant was engaged in conduct that would constitute
a felony at the time the act or omission causing the death or
injury occurred.
  (6) The limitation on liability established by this section
based on a violation of ORS 806.010 does not apply if the
plaintiff in the civil action was insured under a motor vehicle
liability insurance policy within 180 days before the act or
omission occurred, and the plaintiff has not operated a motor
vehicle in violation of ORS 806.010 within the one-year period
immediately preceding the date on which coverage under the motor
vehicle liability insurance policy lapsed.
  SECTION 4. ORS 30.298 is amended to read:
  30.298. (1) Except as otherwise provided in this section, the
Department of Human Services is liable, without regard to fault,
 
for injury to the person of foster parents or damage to the
property of foster parents caused by a foster child if:
  (a) The foster child resides in a foster home that is
maintained by the foster parents and that has been certified by
the department under the provisions of ORS 418.625 to 418.645; or
  (b) The foster child is residing in an approved home that is
maintained by the foster parents and that is receiving payment
from the department under the provisions of ORS 418.027 or under
the provisions of ORS 420.810 and 420.815.
  (2) Except as otherwise provided in this section, the
department is liable, without regard to fault, for injury to the
person of foster parents or damage to the property of foster
parents caused by a foster child if the foster child is residing
in a developmental disability child foster home that has been
certified by the department under the provisions of ORS 443.830
and 443.835.
  (3) Except as otherwise provided in this section, the liability
of the department under this section shall be subject to the same
requirements and limitations provided in ORS 30.260 to 30.300,
and a claim under this section shall be treated as a claim for
damages within the scope of ORS 30.260 to 30.300 for the purposes
of ORS 278.120.
  (4) Notwithstanding ORS 30.260 to 30.300:
  (a) In no event shall the liability of the department under
this section exceed $5,000 for any number of claims arising out
of a single occurrence;
  (b) The liability of the department under this section is
limited to economic damages, and in no event shall the department
be liable for noneconomic damages;
  (c) The department is liable under this section only to the
extent the loss is not covered by other insurance; and
  (d) No claim shall be allowed under this section unless written
notice of the claim is delivered to the Oregon Department of
Administrative Services within 90 days after the alleged loss or
injury.
  (5) The department is not liable under this section for:
  (a) Damage to or destruction of currency, securities or any
other intangible property;
  (b) The unexplained disappearance of any property; or
  (c) Loss or damage that is due to wear and tear, inherent vice
or gradual deterioration.
  (6) In no event shall the liability of the department under
this section for damage to property exceed the difference between
the fair market value of the property immediately before its
damage or destruction and its fair market value immediately
thereafter. The department shall not be liable for the costs of
any betterments to the property that may be required by code,
statute or other law as a condition of repair, replacement or
reconstruction.
  (7) The liability imposed under this section is in addition to
that imposed for the intentional torts of a foster child under
ORS 30.297, but any amounts paid under this section shall reduce
any recovery that may be made under ORS 30.297.
  (8) For the purposes of this section:
  (a) 'Department' means the Department of Human Services.
  (b) 'Economic damages' and 'noneconomic damages' have those
meanings given in   { - ORS 18.560 - }  { +  section 1 of this
2003 Act + }.
  (c) 'Foster child' has that meaning given in ORS 30.297.
  SECTION 5. ORS 30.650 is amended to read:
  30.650. Noneconomic damages, as defined in   { - ORS 18.560 - }
 { + section 1 of this 2003 Act + }, may not be awarded to an
inmate in an action against a public body unless the inmate has
established that the inmate suffered economic damages, as defined
in   { - ORS 18.560 - }  { +  section 1 of this 2003 Act + }.
  SECTION 6. ORS 124.100 is amended to read:
  124.100. (1) An elderly or incapacitated person who suffers
injury, damage or death by reason of physical abuse or financial
abuse may bring an action against any person who has caused the
physical or financial abuse or who has permitted another person
to engage in physical or financial abuse. The court shall award
the following to a plaintiff who prevails in an action under this
section:
  (a) All economic damages, as defined in   { - ORS 18.560 - }
 { +  section 1 of this 2003 Act + }, resulting from the physical
or financial abuse, or $500, whichever amount is greater.
  (b) All noneconomic damages, as defined by   { - ORS 18.560 - }
 { + section 1 of this 2003 Act + }, resulting from the physical
or financial abuse.
  (c) Reasonable attorney fees incurred by the plaintiff.
  (d) Reasonable fees for the services of a conservator or
guardian ad litem incurred by reason of the litigation of a claim
brought under this section.
  (2) An action may be brought under the provisions of this
section only by a person who is 65 or more years of age, by an
incapacitated person, by a guardian, conservator or
attorney-in-fact for a person who is incapacitated or 65 or more
years of age or by a personal representative for the estate of a
decedent who was incapacitated or 65 or more years of age at the
time of death. A person shall be considered incapacitated for the
purposes of ORS 124.100 to 124.140 if the person is either
incapacitated as defined in ORS 125.005 or financially incapable
as defined in ORS 125.005.
  (3) An action may only be brought under the provisions of this
section for physical abuse described in ORS 124.105 or for
financial abuse described in ORS 124.110.
  (4) An action may be brought under this section against a
person for permitting another person to engage in physical or
financial abuse if the person knowingly acts or fails to act
under circumstances in which a reasonable person should have
known of the physical or financial abuse.
  (5) A person commencing an action under this section must serve
a copy of the complaint on the Attorney General within 30 days
after the action is commenced.
  SECTION 7. ORS 260.532 is amended to read:
  260.532. (1) No person shall cause to be written, printed,
published, posted, communicated or circulated, any letter,
circular, bill, placard, poster, photograph or other publication,
or cause any advertisement to be placed in a publication, or
singly or with others pay for any advertisement, with knowledge
or with reckless disregard that the letter, circular, bill,
placard, poster, photograph, publication or advertisement
contains a false statement of material fact relating to any
candidate, political committee or measure.
  (2) As used in subsection (1) of this section, 'cause' does not
include the broadcast of an advertisement by a radio or
television station or cable television company unless the
advertisement is for:
  (a) The candidacy of the owner, licensee or operator of the
station or company; or
  (b) A ballot measure of which a chief petitioner is the owner,
licensee or operator of the station or company.
  (3) A candidate who knows of and consents to a publication or
advertisement prohibited by this section with knowledge or with
reckless disregard that it contains a false statement of material
fact, violates this section regardless of whether the candidate
has participated directly in the publication or advertisement.
  (4) There is a rebuttable presumption that a candidate knows of
and consents to any publication or advertisement prohibited by
this section caused by a political committee over which the
candidate exercises any direction and control.
 
  (5) Any candidate or political committee aggrieved by a
violation of this section shall have a right of action against
the person alleged to have committed the violation. The aggrieved
party may file the action in the circuit court for any county in
this state in which a defendant resides or can be found or, if
the defendant is a nonresident of this state, in the circuit
court for any county in which the publication occurred. To
prevail in such an action, the plaintiff must show by clear and
convincing evidence that the defendant violated subsection (1) of
this section.
  (6) A plaintiff who prevails in an action provided by
subsection (5) of this section may recover economic and
noneconomic damages, as defined in   { - ORS 18.560 - }  { +
section 1 of this 2003 Act + }, or $2,500, whichever is greater.
The court may award such additional equitable relief as it
considers necessary or proper. The equitable relief may include,
but is not limited to, a requirement that a retraction of the
false statement be disseminated in the manner directed by the
court. Proof of entitlement to economic and noneconomic damages
must be by a preponderance of evidence. The court shall award the
prevailing party reasonable attorney fees at trial and on appeal.
  (7) A political committee has standing to bring an action
provided by subsection (5) of this section as plaintiff in its
own name, if its purpose as evidenced by its preelection
activities, solicitations and publications has been injured by
the violation and if it has fully complied with the provisions of
this chapter.  In an action brought by a political committee as
provided by subsection (5) of this section, the plaintiff may
recover economic and noneconomic damages for all injury to the
purpose of the committee as provided in subsection (6) of this
section.
  (8) If a judgment is rendered in an action under this section
against a defendant who has been nominated to public office or
elected to a public office other than state Senator or state
Representative, and it is established by clear and convincing
evidence that the false statement was deliberately made or caused
to be made by the defendant, the finder of fact shall determine
whether the false statement reversed the outcome of the election.
If the finder of fact finds by clear and convincing evidence that
the false statement reversed the outcome of the election, the
defendant shall be deprived of the nomination or election and the
nomination or office shall be declared vacant.
  (9) An action under this section must be filed not later than
the 30th day after the election relating to which a publication
or advertisement in violation of this section was made.
Proceedings on a complaint filed under this section shall have
precedence over all other business on the docket. The courts
shall proceed in a manner which will ensure that:
  (a) Final judgment on a complaint which relates to a primary
election or nominating election is rendered before the 30th day
before the general election; and
  (b) Final judgment on a complaint which relates to an election
to an office is rendered before the term of that office begins.
  (10) The remedy provided by this section is the exclusive
remedy for a violation of this section.
  SECTION 8. ORS 742.544 is amended to read:
  742.544. (1) A provider of personal injury protection benefits
shall be reimbursed for personal injury protection payments made
on behalf of any person only to the extent that the total amount
of benefits paid exceeds the economic damages as defined in
 { - ORS 18.560 - }  { +  section 1 of this 2003 Act + } suffered
by that person. As used in this section, 'total amount of
benefits ' means the amount of money recovered by a person from:
  (a) Applicable underinsured motorist benefits described in ORS
742.502 (2);
 
  (b) Liability insurance coverage available to the person
receiving the personal injury protection benefits from other
parties to the accident;
  (c) Personal injury protection payments; and
  (d) Any other payments by or on behalf of the party whose fault
caused the damages.
  (2) Nothing in this section requires a person to repay more
than the amount of personal injury protection benefits actually
received.
  SECTION 9.  { + ORS 18.560 is repealed. + }
  SECTION 10.  { + This 2003 Act does not take effect unless the
amendment to the Oregon Constitution proposed by Senate Joint
Resolution 2 (2003) is approved by the people at a special
election held throughout this state on the same date as the next
primary election. This 2003 Act takes effect on the effective
date of that amendment. + }
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