Greist v. Phillips

FADELEY, J.,

concurring.

I concur in the result and the necessary principle and reasoning stated in the lead opinion. I do not join the remaining dicta.

The discussion of whether a statutory remedy is “substantial” — a discussion engaged in to support the argument that less than a full remedy may be substituted for a full one by act of the legislature — is unnecessary and wide of the mark. In this case, there would be no remedy at all but for an act of the legislature. The discussion of various ways that the traditional power of a jury may be drained away from that institution to increase the power of either the legislature or the judiciary is also unnecessary, and too far afield.

The following four quotes from the lead opinion, in which I concur, dispose of this case:

1

“For the purpose of this case, we need to decide only how ORS 18.560(1) applies to a [statutory] wrongful death claim. In that context, the application of ORS 18.560(1) is clear. This ‘civil action’ seeks damages arising out of the death of ‘one person.’ ORS 18.560(1).

“ORS 30.020(1), quoted above at note 2, provides, as relevant here, that the personal representative of a decedent may ‘maintain an action against the wrongdoer.’ That is, the personal representative may bring only one action when there is only one decedent, no matter how many beneficiaries there may be. Here, there was but one decedent, and plaintiff brought one action. Under ORS 18.560(1), that action is subject to a single limit of $500,000.” 322 Or at 288-89.

2

“Plaintiff brought this action under ORS 30.020. That statute entitles plaintiff to damages in an amount that ‘includes reasonable’ medical, burial, and memorial services rendered for the decedent, ORS 30.020(2)(a), and ‘would justly, fairly and reasonably’ compensate plaintiff for pecuniary loss to the decedent’s estate and loss of the society, companionship, and services of the decedent, ORS 30.020(2)(c) & (d). The jury awarded $100,000 in ‘economic *302 damages,’ which are ‘objectively verifiable monetary losses,’ including expenses for medical, burial, and memorial services and loss to an estate (including loss of services to an estate). ORS 18.560(2)(a).” 322 Or at 290-91.

3

“In Oregon, as plaintiff acknowledges, the right of action for wrongful death is statutory. ‘[A]t common law no remedy by way of a civil action for wrongful death existed.’ Richard v. Slate, 239 Or 164, 167 , 396 P2d 900 (1964). In Goheen v. General Motors Corp., 263 Or 145, 153-54 , 502 P2d 223 (1972), this court traced the history and development of wrongful death actions in Oregon and stated:

“ ‘The original Oregon Wrongful Death Act was included in the original Deady Code in 1862. * * * [It] did not specifically limit awards of damages to any named dependents. Neither did it specifically limit damages to pecuniary loss, although total recovery was limited to $5,000. This limitation on the amount of recovery was increased from time to time, and was finally removed [by Oregon Laws 1967, chapter 554, section 1].’ (Footnotes omitted.)

“There was no wrongful death statute in Oregon before the 1862 Deady Code. Ibid. * * * Because wrongful death actions are ‘purely statutory,’ they ‘exist only in the form and with the limitations chosen by the legislature.’ Hughes v. White, 289 Or 13, 18 , 609 P2d 365 (1980).” 322 Or at 294.

4

“Nothing in the wording of Article VII (Amended), section 3, quoted above at note 6, restricts the legislature’s authority to set a substantive limitation on a purely statutory remedy. * * *

“The right of action for wrongful death was created by the legislature in 1862, and it was created with a limitation on the amount recoverable. When the voters adopted Article VII (Amended), section 3, in 1910, the maximum amount recoverable in a statutory wrongful death action was $7,500. Lord’s Oregon Laws, ch VI, § 380, p 326 (1910). Although voters told the courts not to ‘re-examine’ facts ‘tried by a jury,’ Art VII (Amended), § 3, there is no indication in wording, case law, or history that the voters meant to undo the extant dollar limit on wrongful death actions. The removal, in 1967, of any limitation on the amount recoverable in a wrongful death action did not place the issue of dollar limits beyond the legislature’s power to act, nor clothe the *303 legislature’s creation with constitutional guarantees not present at its inception.” 322 Or at 296-97.

The above-quoted material explains my reasons for concurring in the result.

Other constitutional provisions have been invoked by the parties. The short and sufficient answer is that there is no true class or discriminatory classification created by the statute conferring the right to recover for wrongful death. No further discussion of other state and federal constitutional provisions is needed.