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In the Supreme Court of the State of Oregon FILED October 24, 2019 05:04 PM Appellate Court Records IN THE SUPREME COURT OF THE STATE OF OREGON SCOTT RAYMOND BUSCH, Multnomah County Circuit Court Case No. 15CV13496 Plaintiff-Appellant, Respondent on Review, Court of Appeals No. A164158 and Supreme Court No. S066098 DEANNE MARIE BUSCH, Plaintiff, v. MCINNIS WASTE SYSTEMS, INC., Defendant-Respondent, Petitioner on Review. McInnis Waste Systems, Inc.’s Opening Brief on the Merits On Review of a Decision of the Court of Appeals on Appeal from a Judgment of the Multnomah County Circuit Court, by the Honorable Michael A. Greenlick Court of Appeals opinion filed: July 18, 2018 Author: Ortega, P.J. Concurring: Garrett and Powers, J. Julie A. Smith, OSB No. 983450 [email protected] Cosgrave Vergeer Kester LLP 900 SW Fifth Avenue, 24th Floor Portland, OR 97204 (503) 323-9000 Attorneys for Defendant-Respondent, Petitioner on Review October 2019 W. Eugene Hallman, OSB No. 741237 John Coletti, OSB No. 942740 [email protected] [email protected] Hallman Law Office Paulson Coletti 104 SE Fifth Street 1022 NW Marshall Street, Suite 450 PO Box 308 Portland, OR 97209 Pendleton, OR 97801 (503) 226-6361 (541) 276-3857 Attorneys for Plaintiff-Appellant, Respondent on Review i TABLE OF CONTENTS Page INTRODUCTION ................................................................................................ 1 QUESTIONS PRESENTED AND PROPOSED RULES OF LAW ................... 2 Questions Presented .................................................................................... 2 Proposed Rules of Law ............................................................................... 3 FACTS AND PROCEDURAL HISTORY .......................................................... 4 SUMMARY OF ARGUMENT ............................................................................ 7 ARGUMENT ...................................................................................................... 10 A. Unlimited economic damages plus $500,000 in noneconomic damages is a substantial remedy in and of itself ............................... 12 1. Greist is dispositive and precludes plaintiff’s challenge to ORS 31.710(1) ........................................................................ 13 2. Unlimited economic damages plus $500,000 in noneconomic damages is substantial in light of the nature and purpose of noneconomic damages ................................................................. 16 a. There are no standards for measuring noneconomic damages in money, and there is no way of determining what placing a monetary value on them does for plaintiffs ............................................................................ 17 b. As a result, an award that includes $500,000 in noneconomic damages will always be “substantial” .................................... 21 3. Unlimited economic damages plus $500,000 in noneconomic damages is substantial compared to the remedy in Horton ......... 23 ii TABLE OF CONTENTS (cont.) Page 4. $3.5 million is substantial considering awards in other cases, noneconomic damage limits in other states, and minimum insurance requirements ................................................................ 24 B. The court does not need to consider the historical context, the overall statutory scheme, or the legislature’s reasons ................ 26 C. ORS 31.710(1) does not violate the remedy clause, considering the historical context, the overall statutory scheme, and the legislature’s reasons for limiting noneconomic damages ................. 27 1. The growth in damage awards after World War II ..................... 28 2. The expansion of tort rights in the 1960s and 1970s ................... 29 3. Efforts in the mid-1980s to stabilize Oregon’s tort and liability insurance systems ........................................................... 32 a. The 1986 Governor’s Task Force on Liability ....................... 32 b. The 1986 Joint Interim Task Force on Liability Insurance .... 33 c. The 1987 changes to tort and insurance law in Oregon ......... 35 4. The limit on noneconomic damages was meant to ensure that insurance coverage would be available to compensate tort victims ................................................................................... 42 5. The limit was a reaction to and a tradeoff of sorts for the earlier expansion of tort rights ..................................................... 44 6. The limit was intended to ensure that essential service providers would continue to operate in Oregon .......................... 45 iii TABLE OF CONTENTS (cont.) Page D. This court should defer to the legislature’s policy choices in meeting the changing needs of Oregonians .................................. 46 E. Noneconomic damages should be limited to the extent permitted by the remedy clause ........................................................ 48 CONCLUSION ................................................................................................... 54 APPENDIX iv TABLE OF AUTHORITIES Page Cases Baker v. Pennsylvania Co., 142 Pa 503, 21 A 979 (1891) ...................................................................... 18 Bamford v. Pittsburgh & B. Traction Co., 194 Pa 17, 44 A 1068, 1069 (1899) ............................................................ 18 Blake v. Midland Ry. Co., 118 Eng Rep 35, 18 QB 93, 111 (1852) ..................................................... 17 Bowden v. Davis, 205 Or 421, 289 P2d 1100 (1955) .............................................................. 21 Busch v. McInnis Waste Systems, Inc., 292 Or App 820, 426 P3d 820 (2018), rev allowed, ___ Or ___ (2019) .......................................................... 1, 7, 49 Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977) ................................................................ 31 Chicago & A.R. Co. v. Fisher, 38 Ill App 33 (Ill App Ct 1890), aff'd, 141 Ill 614 (1892) .............................................................................. 18 Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007) .................................................... 13, 14, 16 Deckard v. Bunch, 358 Or 754, 370 P3d 478 (2016) ................................................................ 31 DeMaris v. Whittier, 280 Or 25, 569 P2d 605 (1977) .................................................................. 21 v TABLE OF AUTHORITIES (cont.) Page Cases (cont.) DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002) ................................................................ 17 Doyle v. City of Medford, 356 Or 336, 337 P3d 797 (2014) ................................................................ 52 Gale v. New York Cent. & H.R.R. Co., 53 How Pr 385 (1877), aff'd, 76 NY 594 (1879) .............................................................................. 18 Goddard v. Farmers Ins. Co. v. Oregon, 344 Or 232, 272-73 (2008) ......................................................................... 50 Goodhart v. Pennsylvania R. Co., 177 Pa 1, 35 A 191 (1896) .................................................................... 18, 19 Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995) .................... 2, 3, 5, 7 ,8, 11, 13-16, 22, 30 Heaton v. Ford Motor Co., 248 Or 467, 435 P2d 806 (1967) ................................................................ 30 Hewitt v. SAIF, 294 Or 33, 653 P2d 970 (1982) .................................................................. 49 Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016) ................................. 1, 4, 5, 10, 11, 13-15, 23, 24, 26, 43, 45, 46, 48, 53 Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013) ........................................................ 14, 15, 22 vi TABLE OF AUTHORITIES (cont.) Page Cases (cont.) Jehovah’s Witnesses v. Mullen et al., 214 Or 281, 330 P2d 5 (1958), cert den, 359 US 436 (1959) ....................................................................... 21 Johnson v. Wells, Fargo & Co., 6 Nev 224 (1870) ........................................................................................ 18 Langford v. Jones, 18 Or 307 (1890) ................................................................................... 17-18 Leeds v. Metro. Gas-Light Co., 90 NY 26 (1882) ......................................................................................... 18 Levin v. Commerce Energy, Inc., 560 US 413, 130 S Ct 2323 (2010)....................................................... 49-50 Li v. State, 338 Or 376, 110 P3d 91 (2005) .................................................................. 49 Malloy v. Bennett, 15 F 371 (CCSD NY 1883) ........................................................................ 19 McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001) .................................................................... 30 Moore Mill & Lbr. Co. v. Foster, 216 Or 204, 336 P2d 39 (1959) .................................................................. 49 Noonan v. City of Portland, 161 Or 213, 88 P2d 808 (1939) .................................................................. 47 vii TABLE OF AUTHORITIES (cont.) Page Cases (cont.) Oliver v. North Pac. Transp. Co., 3 Or 84 (1869) ............................................................................................. 17 Perozzi v. Ganiere, 149 Or 330, 40 P2d 1009 (1935) ................................................................ 47 Rains v. Stayton Builders Mart, Inc., 289 Or App 672, 410 P3d 336 (2018) .......................................................... 6 Sealey v. Hicks, 309 Or 387, 393-788 P2d 435 (1990)
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