Vasquez v. Double Press Mfg., Inc.

288 Or.App. 503

406 P.3d 225

Zeferino VASQUEZ, Plaintiff-Respondent,

v.DOUBLE PRESS MFG., INC., a California corporation, Defendant-Appellant.

A154774

Court of Appeals of Oregon.

November 1, 2017

Jonathan Henderson argued the cause for appellant. With him on the briefs were Elizabeth E. Lampson and Davis Rothwell Earle & Xochihua, P.C., Portland. With him on the supplemental brief was Davis Rothwell Earle & Xochihua, P.C., Portland.

Kathryn H. Clarke argued the cause for respondent. With her on the briefs were Mark G. McDougal andGregory Kafoury.

James S. Coon and Thomas, Coon, Newton & Frost filed the brief amicus curiae for Oregon Trial Lawyers' Association.

Nathan R. Morales, Sharon A. Rudnick, and Harrang Long Gary Rudnick P.C. filed the brief amicus curiae for Associated Oregon Industries and the Oregon Liability Reform Coalition.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

ARMSTRONG, P. J.

Defendant seeks reconsideration of our decision in Vasquez v. Double Press Mfg., Inc. , 278 Or.App. 77, 372 P.3d 605 (2016). In that decision, we concluded that the application in this case of the cap on noneconomic damages in ORS 31.710(1)¹ would violate plaintiff's jury-trial right under Article I, section 17, of the Oregon Constitution.² We based our decision on the controlling precedent of Lakin v. Senco Products, Inc. , 329 Or. 62, 987 P.2d 463, clarified , 329 Or. 369, 987 P.2d 476 (1999). One day after we issued our decision in Vasquez , the Supreme Court issued its decision in Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016), which overruled Lakin . In light of Horton , we allow reconsideration and withdraw our opinion in Vasquez .

We also conclude that it is appropriate to exercise our discretion to address the two "right for the wrong reason" arguments raised by plaintiff in response to defendant's request for reconsideration. As to those arguments, we conclude that plaintiff's claims against defendant are not "subject to" ORS chapter 656, such that they would be excepted from the application of ORS 31.710(1). However, we also conclude that, as applied in this case, ORS 31.710(1) violates the remedy clause of Article I, section 10, of the Oregon Constitution.³ Accordingly, we allow reconsideration, withdraw our former opinion, and affirm the trial court's ruling not to apply ORS 31.710(1) to plaintiff's award of damages.

We take the facts from our prior opinion, which we recited consistently with the jury's verdict in favor of plaintiff:

"Defendant manufactures and sells agricultural machinery. OR PAC Feed & Forage LTD, the employer of plaintiff, purchased a bale-cutting machine from defendant, and defendant installed the machine. Plaintiff's job duties included operating and cleaning hay out of and around the bale-cutting machine. Plaintiff operated the machine from a control panel located at the control tower. Before plaintiff cleaned hay out of or around the machine, he pushed a button on the control panel to switch the machine from automatic to manual mode. In addition to switching the machine to manual mode, there was a 'lockout/tagout' safety procedure. Under that procedure, an operator shuts off the power source supply with a lock and key and takes the key so that only one person has access to the power supply while working on the machine.

"On March 31, 2010, plaintiff left the control tower to ask his cousin whether his shift was over. Plaintiff did not turn off and lock out the machine, nor did he switch the machine from automatic mode to manual mode. When plaintiff's cousin confirmed that his shift was over, plaintiff began to clean the machine. While cleaning the machine—removing jammed material from the exterior—plaintiff was 'crushed by a "pinch point" created by a hydraulic ram moving against the exterior framework' of the machine. A 'pinch point' is a place on the machine 'where two pieces of material come together.'

"Plaintiff was severely injured. Plaintiff's neurosurgeon testified that plaintiff was 'essentially cut in half, right through the base of the spine' and that the machine 'broke his bones and crushed his spine and tore soft tissue.' As a result of the injury plaintiff is permanently paraplegic.

"Plaintiff filed an action against defendant, alleging claims for negligence and products liability, and subsequently amended his complaint to proceed on his negligence claim alone. Before trial, defendant moved for partial summary judgment to limit plaintiff's noneconomic damages to $500,000 under ORS 31.710(1). Relying on Lakin, the trial court denied defendant's motion for summary judgment, explaining, 'For now I'm going to consider Lakin to be binding on' the issue of noneconomic damages.

"At trial, plaintiff testified that he was partially at fault for his injuries. Based on that admission, defendant moved for a directed verdict to cap plaintiff's noneconomic damages. The trial court denied that motion, again relying on Lakin [.]

"* * * * *

"The jury returned a verdict in plaintiff's favor for $2,231,817 in economic damages and $8,100,000 in noneconomic damages, but found plaintiff 40 percent at fault for his injuries. Defendant moved to reduce the jury's award of noneconomic damages to $500,000 based on ORS 31.710(1), arguing that Lakin did not control. The trial court denied defendant's motion. The trial court then entered a judgment for plaintiff in the amount of $6,199,090.20, representing 60 percent of the total award from the jury—$4,860,000 of which are noneconomic damages.

"Following the entry of judgment, defendant moved for judgment notwithstanding the verdict and a new trial, again arguing that ORS 31.710(1) applied. The trial court denied those motions without explanation."

Vasquez , 278 Or.App. at 79-81, 372 P.3d 605 (footnote omitted). On appeal, defendant challenged the trial court's denial of its post-verdict motion to apply the noneconomic damages cap in ORS 31.710(1).

In our former opinion, we explained that Lakin , and its progeny, controlled our decision. In Lakin , which involved a negligence and products-liability case against a nail-gun manufacturer, the Supreme Court concluded that former ORS 18.560(1) (1987), renumbered as ORS 31.710(1) (2003), violated the jury-trial right in Article I, section 17. See Lakin , 329 Or. at 79-81, 987 P.2d 463. The analysis in Lakin with respect to Article I, section 17, was reaffirmed by the Supreme Court in Foster v. Miramontes , 352 Or. 401, 287 P.3d 1045 (2012), and Klutschkowski v. PeaceHealth , 354 Or. 150, 311 P.3d 461 (2013). See Vasquez , 278 Or.App. at 84-85, 372 P.3d 605. We concluded that Lakin controlled, and we affirmed the trial court's ruling. Id. at 86, 372 P.3d 605. We explained,

"Under Lakin , Article I, section 17, guarantees a jury trial in civil cases for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and cases of like nature. The determination of damages in a personal injury case is a question of fact. Thus, in this context, applying ORS 31.710(1) would violate Article I, section 17."

278 Or.App. at 87, 372 P.3d 605.

The day after we issued our decision in Vasquez , the Supreme Court issued its decision in Horton , which expressly overruled Lakin . See Horton , 359 Or. at 250, 376 P.3d 998. With respect to Article I, section 17, the court re-examined at length the text and history of Article I, section 17, and the case law applying it. The court then concluded,

"The text of Article I, section 17, its history, and our cases that preceded Lakin establish that Article I, section 17, guarantees litigants a procedural right to have a jury rather than a judge decide those common-law claims and defenses that customarily were tried to a jury when Oregon adopted its constitution in 1857, as well as those claims and defenses that are 'of like nature.' However, that history does not demonstrate that Article I, section 17, imposes a substantive limit on the legislature's authority to define the elements of a claim or the extent of damages available for a claim."

359 Or. at 250, 376 P.3d 998.

In light of the Supreme Court's conclusion and overruling of Lakin , we allow reconsideration in this case and withdraw our former opinion. However, that does not end our inquiry. Because Horton announced a significant change in the law—not only in the application of Article I, section 17, but, as we will discuss below, in the application of Article I, section 10—we requested additional briefing and oral argument from the parties. We now turn to the additional arguments raised by the parties on reconsideration.

On reconsideration, plaintiff raises two new arguments as a basis to affirm the trial court under the "right for the wrong reason" principle: (1) plaintiff's claims against defendant are excepted from ORS 31.710(1) because they are "subject to" ORS chapter 656; and (2) ORS 31.710(1) violates Article I, section 10, both on its face and as applied in this case. Defendant responds that we should not consider those arguments because plaintiff did not timely raise them in his answering brief on appeal. However, as explained below, we conclude that we should consider plaintiff's "right for the wrong reason" arguments in determining whether to modify our previous disposition affirming the trial court.

In contending that plaintiff was required to raise his arguments in his answering brief for the arguments to be considered by us, defendant points to cases in which we and the Supreme Court have said that we will not consider arguments raised for the first time on reconsideration. See, e.g. , State v. Leistiko , 352 Or. 622, 624, 292 P.3d 522 (2012) (declining to address argument raised for first time in defendant's petition for reconsideration); Kentner v. Gulf Ins. Co. , 298 Or. 69, 74, 689 P.2d 955 (1984) (noting that "purpose of rehearing is not to raise new questions or rehash old arguments, but to allow the court to correct mistakes and consider...