Marshall v. PricewaterhouseCoopers, LLP

536 November 28, 2023 No. 32

32

371 Or

Marshall v. PricewaterhouseCoopers, LLP

2023

November 28, 2023

IN THE SUPREME COURT OF THE

STATE OF OREGON

John M. MARSHALL

and Karen M. Marshall, individuals;

Patsy L. Marshall, an individual;

Patsy L. Marshall, as Personal Representative

of the Estate of Richard L. Marshall, Deceased;

and Marshall Associated, LLC,

an Oregon limited

liability corporation,

Respondents on Review,

v.

PRICEWATERHOUSECOOPERS, LLP,

a limited liability partnership,

Defendant,

and

SCHWABE WILLIAMSON & WYATT, P.C.,

an Oregon professional corporation,

Petitioner on Review.

(CC 17CV11907) (CA A169635) (SC S069442)

On review from the Court of Appeals.*

Argued and submitted November 29, 2022.

Janet M. Schroer, Hart Wagner, LLP, Portland, argued

the cause and filed the briefs for petitioner on review. Also

on the briefs was Matthew J. Kalmanson, Portland.

Scott F. Hessell, Sperling & Slater, P.C., Chicago, Illinois,

argued the cause for respondents on review. John J. Dunbar,

Dunbar Law LLC, Portland, filed the brief for respondents

on review. Also on the brief was Scott F. Hessell, Chicago.

Kristen G. Williams, Williams Weyand Law, LLC,

McMinnville, filed the brief for amicus curiae Oregon Trial

Lawyers Association.

______________

* Appeal from Multnomah County Circuit Court, Jerry B. Hodson, Judge.

316 Or App 416, 505 P3d 40 (2021).

Cite as 371 Or 536 (2023) 537

Laura E. Coffin, Luvaas Cobb, Eugene, filed the brief for

amicus curiae Professional Liability Fund.

Before Flynn, Chief Justice, and Duncan, Garrett, James

and Masih, Justices, and Kistler and Walters, Senior Judges,

Justices pro tempore.**

FLYNN, C.J.

The decision of the Court of Appeals is reversed, and the

case is remanded to the Court of Appeals for consideration

of plaintiffs’ second assignment of error.

James, J., dissented and filed an opinion. Masih, J., dis-

sented and filed an opinion.

______________

** Balmer, J., retired December 31, 2022, and did not participate in the deci-

sion of this case. Nelson, J., resigned February 25, 2023, and did not participate

in the decision on this case. DeHoog and Bushong, JJ., did not participate in the

consideration or decision of this case.

538 Marshall v. PricewaterhouseCoopers, LLP

FLYNN, C.J.

Under ORS 12.115(1), “[i]n no event shall any action

for negligent injury to person or property of another be com-

menced more than 10 years from the date of the act or omis-

sion complained of.” At issue in this case is whether that stat-

ute applies to actions in which the plaintiffs allege that their

attorney negligently caused injury consisting solely of finan-

cial loss—here, the cost to plaintiffs of attempting to defend

themselves against a claim for unpaid federal taxes and

the anticipated cost of paying that tax liability. As we will

explain, we conclude that the legislature intended the phrase

“negligent injury to person or property” in ORS 12.115(1) to

include negligence claims seeking to recover for the kind of

injury to economic interests that plaintiffs have alleged.

BACKGROUND

In this action, which was filed in 2017, plaintiffs

alleged that defendant law firm had negligently advised

plaintiffs—in 2003—regarding potential tax ramifications

of a proposed business transaction.1 Plaintiffs also alleged

that, as a result of that negligent advice, they had incurred

over $2 million in legal fees defending an Internal Revenue

Service claim for back taxes related to the transaction and

that they expected to incur approximately $20 million in

liability for back taxes, penalties, and interest. Defendant

moved to dismiss plaintiffs’ negligence claim, contending

that the pleadings showed that the claim was time-barred

under ORS 12.115(1). See ORCP 21 A(1)(i) (providing that a

defendant may raise by motion a defense “that the pleading

shows that the action has not been commenced within the

time limited by statute”).2 The trial court granted defen-

dant’s motion and entered a limited judgment, from which

plaintiffs appealed.3

The Court of Appeals reversed the limited judg-

ment, concluding that the statutory phrase “negligent injury

1

Plaintiffs also named as a defendant their accounting firm for the transac-

tion, PricewaterhouseCoopers, but that defendant is not a party to this appeal.

2

At the time when defendant filed its motion, the provision now set out at

ORCP 21 A(1)(i) was numbered ORCP 21 A(9).

3

Plaintiffs’ complaint alleged other claims that the limited judgment did not

address and are not at issue before this court.

Cite as 371 Or 536 (2023) 539

to person or property” does not encompass plaintiffs’ claim

because the injury alleged was for purely financial losses.

Marshall v. PricewaterhouseCoopers, LLP, 316 Or App 416,

432, 441, 505 P3d 40 (2021). We allowed review and now

conclude that the trial court correctly concluded that ORS

12.115(1) applied to the type of claim alleged by plaintiffs.

Accordingly, we reverse the decision of the Court of Appeals

and remand for that court to address plaintiffs’ remaining

assignment of error.4

ANALYSIS

Defendant challenges the conclusion of the Court of

Appeals that plaintiffs’ claim for negligent legal represen-

tation is not subject to the time limitation imposed by ORS

12.115(1), a so-called statute of ultimate repose. As we have

explained, statutes of repose are enacted by the legislature

to supplement statutes of limitation. Statutes of limitation

“limit the time a party has to initiate an action once a claim

has accrued”—a concept that means that a statute of limita-

tions “[g]enerally * * * does not begin to run until the injured

party knows or should know that it has been injured.” Shasta

View Irrigation Dist. v. Amoco Chemicals, 329 Or 151, 161,

986 P2d 536 (1999) (internal quotation marks and brackets

omitted; emphasis added). And statutes of repose supple-

ment that somewhat unpredictable approach to the time that

a party will have to initiate an action, by setting “maximum

times to file a claim, regardless of the date of discovery of an

injury or other circumstances that may affect the expiration

of a statute of limitations.” Id. at 162. We have described stat-

utes of repose as reflecting “the public policy of allowing peo-

ple, after the lapse of a reasonable time, to plan their affairs

with a degree of certainty, free from the disruptive burden of

protracted and unknown potential liability.” Johnson v. Star

Machinery Co., 270 Or 694, 701, 530 P2d 53 (1974).

The legislature enacted the statute of repose in

ORS 12.115(1) in 1967. Or Laws 1967, ch 406, § 2. The new

4

In the Court of Appeals, plaintiffs raised a second assignment of error that,

even if ORS 12.115 applies generally to claims for injury to economic interests,

the trial court nevertheless erred in concluding that it barred plaintiffs’ negli-

gence claim. In a footnote, the Court of Appeals observed that its construction of

the statute made it unnecessary to reach plaintiffs’ alternative, second assign-

ment of error. Marshall, 316 Or App at 418 n 1.

540 Marshall v. PricewaterhouseCoopers, LLP

statute was a reaction to this court’s 1966 decision in Berry

v. Branner, 245 Or 307, 421 P2d 996 (1966), which held that

a cause of action for medical malpractice involving a foreign

object left in the body did not “accrue,” for purposes of the

statute of limitations in ORS 12.010 (1965), “until the patient

knew or, in the exercise of reasonable care, should have

known of the injury inflicted upon her.” See Josephs v. Burns

& Bear, 260 Or 493, 496-99, 491 P2d 203 (1971), abrogated on

other grounds by Smothers v. Gresham Transfer, Inc., 332 Or

83, 23 P3d 333 (2001) (describing Berry v. Branner and his-

tory of ORS 12.115(1)). ORS 12.115(1), which has remained

unchanged since being enacted in 1967, provides:

“In no event shall any action for negligent injury to person

or property of another be commenced more than 10 years

from the date of the act or omission complained of.”

It is undisputed that plaintiffs’ claim is based on

conduct that occurred more than 10 years before plaintiffs

commenced the present action. It also is undisputed that

plaintiffs have alleged a negligence claim against defen-

dants. Thus, the only aspect of ORS 12.115(1) that is in

dispute before us is whether plaintiffs’ allegations of solely

financial loss describe the kind of “injury to person or prop-

erty” to which that statute applies. We resolve the parties’

dispute about the meaning of the statute by employing the

analytical framework described in PGE v. Bureau of Labor

and Industries, 317 Or 606, 859 P2d 1143 (1993), and modi-

fied in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). As

with all questions of statutory construction, our “paramount

goal” is to ascertain the intent of the legislature that enacted

the disputed provision, and we determine that intent by

examining the text, in context, as well as legislative history

“where that legislative history appears useful to the court’s

analysis.” Gaines, 346 Or at 171-72. The dispute here turns

on what types of negligence claims the legislature intended

to describe with the phrase “negligent injury to person or

property” in ORS 12.115(1).

In considering what the legislature intended a stat-

utory term to mean, it is helpful to understand how the term

is used. When considering the meaning of terms of common

usage, we ordinarily presume that the legislature intended

Cite as 371 Or 536 (2023) 541

their ordinary meaning. Id. at 175; PGE, 317 Or at 611

(explaining that “words of common usage typically should

be given their plain, natural, and ordinary meaning”). But

if the context or legislative history of a statute indicate that

the legislature intended a term to have a meaning “drawn

from a specialized trade or field,” so-called “terms of art,” we

consider “the meaning and usage of those terms in the dis-

cipline from which the legislature borrowed them.” Comcast

Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014).

When a term is drawn from the legal field, we often “look

to its established legal meaning as revealed by, for starters

at least, legal dictionaries.” Id. (internal quotation marks

omitted).

Here, both parties assert that the phrase “negligent

injury to person or property” has an established meaning

when used in the context of a legal action, and they presume

that the legislature intended the phrase to have its estab-

lished legal meaning. But they offer competing versions of

what the legislature understood that phrase to mean as a

legal “term of art.” According to defendant, in 1967, “injury

to person or property” was defined by contemporary legal dic-

tionaries as referring to civil injuries, generally—including

injury consisting of financial loss. Thus, defendant contends

that the legislature intended the phrase “negligent injury

to person or property” to reach negligence claims for injury

consisting of financial loss. According to plaintiffs, however,

Oregon case law gives the phrase “negligent injury to person

or property” a more specialized meaning that encompasses

“bodily injuries including their psychic consequences, and

physical damage to existing tangible property, but not finan-

cial losses.” (Emphases added.) They point to a concept that

has developed in this court’s case law to distinguish between

the types of injury for which everyone ordinarily is liable in

negligence and the type of injury for which liability depends

on a “source of duty outside the common law of negligence.”

See Hale v. Groce, 304 Or 281, 284, 744 P2d 1289 (1987)

(describing rule). Both parties are correct to an extent, but

defendant’s understanding of the phrase better reflects what

the 1967 legislature intended the statutory phrase to mean.

542 Marshall v. PricewaterhouseCoopers, LLP

Before explaining why defendant’s proposed mean-

ing of the phrase “negligent injury to person or property”

better captures the intent of the 1967 Legislative Assembly,

we pause to consider the parties’ premise that the legisla-

ture intended to use the phrase “negligent injury to person

or property” as a legal term of art. ORS 12.115(1) addresses

a legal concept—an outside limit on when a legal action for

negligence can be filed—meaning that the intended audi-

ence was those who would file, or defend against, a legal

negligence action. And in doing so, the legislature used

terms that had specific, established meanings in the legal

context. Thus, although many of the terms in the phrase

“negligent injury to person or property” might—in a differ-

ent context—also be terms of common usage, in the context

of ORS 12.115(1), we agree with the parties that the legisla-

ture most likely intended the terms to mean what they were

understood to mean in the legal field at the time.

Defendant is correct that, as used in the legal field

at the time, the phrase “negligent injury to person or prop-

erty” was commonly understood as reaching injury that con-

sisted of financial loss. In 1967, “injury” had an established

legal meaning of “[a]ny wrong or damage done to another,

either in his person, rights, reputation, or property.” Black’s

Law Dictionary 924 (4th ed 1951). And the phrase “[i]njuries

to person or property” was associated with the broad con-

cept of “civil injury,” which was defined as “[i]njuries to per-

son or property, resulting from a breach of contract, delict,

or criminal offense, which may be redressed by means of a

civil action.” Id.; see also Webster’s Third New Int’l Dictionary

1164 (unabridged ed 2002) (specifying that “injury,” when

used as a legal term, means “a violation of another’s rights

for which the law allows an action to recover damages or

specific property or both”; the term is “comprehensive,” and

it includes “an act or result involving an impairment or

destruction of right, health, freedom, soundness, or loss of

something of value”).

The term “property” had both a common usage and

a usage in the legal field, but both were similarly broad.

“Property” in the legal context was defined in contemporane-

ous authorities as including “everything which is the subject

Cite as 371 Or 536 (2023) 543

of ownership, corporeal or incorporeal, tangible or intangi-

ble, visible or invisible, real or personal * * * extend[ing] to

every species of valuable right or interest.” Black’s at 1382.

Common usage of the term “property” could be equally

broad.5 The common usages described by Webster’s included:

“[2] b : the exclusive right to possess, enjoy, and dispose of

a thing : a valuable right and interest primarily a source

or element of wealth : ownership * * * [and 2] c : something

to which a person has a legal title : an estate in tangible

assets (as lands, goods, money) or intangible rights (as

copyrights, patents) in which or to which a person has a

right protected by law.”

Webster’s at 1818.

As plaintiffs emphasize, however, we have cautioned

against relying solely on dictionary definitions to determine

the meaning of statutory terms “without critically exam-

ining how the definition fits into the context of the statute

itself.” State v. Gonzalez-Valenzuela, 358 Or 451, 461, 365

P3d 116 (2015). Thus, the fact that the legislature used a

phrase—“negligent injury to person or property”—that is

capable of including negligently caused injury to another

person’s economic interests does not preclude plaintiffs’

understanding that the 1967 Legislative Assembly used the

phrase “negligent injury to person or property” to capture a

more specialized, and more limited, category of injury.

The legislative history of ORS 12.115(1), however,

strongly suggests that the 1967 Legislative Assembly

intended the new negligence statute of repose to apply to

actions for negligent injury to a broad variety of property

interests. As indicated above, the legislature enacted the

statute of repose set out in ORS 12.115(1) in response to this

court’s decision in Berry that, for certain actions for medical

malpractice, the statute of limitations did not begin to run

until the injury was discovered or, in the exercise of rea-

sonable care, should have been discovered by the patient.

5

We agree with Justice James’s dissent that our cases have not articulated a

clear basis for determining whether the legislature intended to use a term of art

when the same term also appears in ordinary usage and that we must exercise

caution when the meaning of a statute could turn on that distinction. See 371 Or

at 558 (James, J., dissenting). But in this instance, labeling the term “property”

as either “common” or “legal” does not determine the meaning of the statute.

544 Marshall v. PricewaterhouseCoopers, LLP

See Josephs, 260 Or at 496-97. The holding in Berry “was

a reversal of previous case law which held that in such sit-

uations the cause of action accrued and the statute com-

menced to run at the time of the negligent act or omission,”

regardless of whether the plaintiff had become aware of the

negligently caused harm. Johnson, 270 Or at 699. Although

the legislature could have been satisfied with a policy that

allowed plaintiffs to timely pursue their negligence actions

whenever the harm was discovered, it favored a policy that

would set an outside cut-off date for liability arising from

negligently caused harm.

When initially introduced, the proposed legisla-

tion addressed only actions fitting the exact fact-pattern of

Berry—that is, “[a]n action to recover damages for injuries

to the person where in the course of any medical, dental,

surgical or other professional treatment or operation,” a

“foreign substance” was “negligently permitted to remain”

within the patient’s body. Senate Bill (SB) 134 (1967). For

such actions, the bill specified a two-year statute of limita-

tions based on the date of discovery, “provided that such

action shall be commenced within six years from the date

of the treatment or operation upon which the action is

based.” Id. In other words, as originally introduced, SB 134

expressly codified Berry’s holding that a discovery rule gov-

erns the statute of limitations for medical negligence actions

involving harm from a foreign object, but it combined that

with an outside limit—or statute of repose—on the time for

filing those actions. The Senate changed the outside limit

to seven years but otherwise passed the bill as introduced.

See Senate Judiciary Committee Report on SB 134 (Mar 22,

1967).

As we observed in Josephs, however, “it is apparent

from the legislative history that the members of the legisla-

ture recognized that the rationale of Berry might be equally

applicable to a host of other situations in which a defendant’s

negligence went understandably undetected until after the

pertinent statutes of limitation had expired.” 260 Or at 497-

98 (internal footnote omitted). We cited an exhibit in the

legislative history explaining that concern:

Cite as 371 Or 536 (2023) 545

“ ‘The Berry case appears to raise fundamental problems

in fields other than medical fields. If the Court is correct

regarding its meaning of the word “accrued,” the same rea-

soning might very well apply to mistakes of lawyers, engi-

neers, title companies, and others. Thus, if a lawyer makes

a mistake in giving an opinion as to the title to real prop-

erty to the average citizen and the citizen relies upon the

opinion and doesn’t discover the error [for] ten years, would

not the reasoning in the Berry case apply to litigation based

upon an alleged injury to the rights of another under ORS

12.110?’ ”

Id. at 497 n 2 (quoting “a letter from Attorney John J.

Coughlin to Attorney William Morrison under date of

January 25, 1967”).

It also is apparent that the legislature intended to

adopt an absolute time limitation that would apply to negli-

gence actions other than those at issue in Berry. Although,

as passed by the Senate initially, SB 134 set an outside

limit for filing only the type of negligence claim that clearly

would have been governed by Berry’s discovery-rule holding,

the scope of the bill changed when it moved to the House.

As we observed in Josephs, representatives expressed con-

cern—echoing the Coughlin exhibit quoted above—that

the Berry discovery-rule holding might be equally applica-

ble to extend the time for filing claims for other types of

professional malpractice “in which a defendant’s negli-

gence went understandably undetected until after the per-

tinent statutes of limitation had expired.” Id. at 497-98;

Tape Recording, House Committee on Judiciary, SB 134,

Apr 19, 1967, Tape 79 (remarks of Representative Wallace

Carson and Representative James Redden). And represen-

tatives specifically named architects, engineers, lawyers,

and accountants as professionals who might be liable under

the reasoning of Berry for negligence that “went under-

standably undetected until after the pertinent statutes of

limitation.” Josephs, 260 Or at 497-98; see Tape Recording,

House Committee on Judiciary, SB 134, Apr 6, 1967, Tape

72 (remarks of Representative James Redden, noting that

the issue raised in Berry might make professional insur-

ance more difficult to obtain and that it “does not deal with

546 Marshall v. PricewaterhouseCoopers, LLP

doctors alone,” giving examples including a “lawyer who

wrote a contract ten years ago”).

The House ultimately voted to amend the bill by

adding a provision that would have defined when an action

“accrued” for most actions in such a way that the statute of

limitations would run from the date “the act or omission

complained of occurred”—effectively making the statute of

limitations serve the same outside cut-off role as a statute

of ultimate repose.6 See Josephs, 260 Or at 499 (“It is clear

that the legislative committees which were dealing with

the problem of long delayed tort litigation brought about by

lack of discovery considered the possibility of defining the

time when a cause of action ‘accrued’ as a response to the

Berry decision.”); SB 134 (1967) - 1 Amendment (Apr 20,

1967). Thus, although the Senate version of the bill would

have enacted a seven-year outside limit for filing negligence

actions that applied only to certain claims for medical neg-

ligence, the House version would have ensured that the

applicable statute of limitations served as an outside limit

for filing virtually all actions at law. For an action “for any

injury to the person or rights of another, not arising on con-

tract, and not especially enumerated in” ORS chapter 12, the

statute of limitations was—and remains—two years. ORS

12.110(1).

The House and Senate then compromised on amend-

ments to SB 134 that “left the discovery rationale of Berry

intact, should this court subsequently choose to apply the

Berry rationale to torts other than medical malpractice, but

prescribed an ultimate [ten-year] cut-off date in any event

for the commencement of tort claims litigation.” Josephs,

260 Or at 499; see also id. (describing ORS 12.110(4) as

relating specifically to medical malpractice claims and ORS

12.115(1) as “relating generally to other tort claims”). That

history persuades us that the legislature intended to impose

6

The version of the bill passed by the House added a proposed paragraph

to ORS 12.010, the general statute of limitations, for “[a]ctions at law” that

“[t]he cause of action shall be deemed to have accrued when the act or omis-

sion complained of occurred unless otherwise directed by law,” but the House

retained the Senate’s discovery rule for medical negligence involving a “foreign

substance”—”otherwise direct[ing]” when those actions accrued. House Judiciary

Committee Report on SB 134 (Apr 20, 1967).

Cite as 371 Or 536 (2023) 547

an outside limit of ultimate repose for negligence actions

generally, and with a specific understanding that the limita-

tion would apply to negligence actions against other profes-

sionals, including lawyers. Indeed, plaintiffs acknowledge

that the legislature intended ORS 12.115(1) to apply to at

least some actions alleging that the plaintiff suffered injury

as a result of negligent legal representation.

That legislative history is difficult to reconcile

with what plaintiffs propose to be a legislative intent to

exclude from the new limitation any negligence action

alleging injury to economic interests, which has long been

understood to be a category of damages that a client may

recover in a negligence action against the client’s lawyer.

For example, as early as Currey v. Butcher, 37 Or 380, 384-

85, 61 P 631 (1900), this court held that the attorneys’ cli-

ent properly brought a negligence claim to recover financial

expenses caused by negligent performance of professional

duties because, “at common law[,] the injured party could

sue” either in contract for breach of the implied promise or

in tort for neglect of the duty. See also Onita Pacific Corp. v.

Trustees of Bronson, 315 Or 149, 160-62, 843 P2d 890 (1992)

(observing that the attorney-client relationship is one in

which the failure to exercise reasonable care permits recov-

ery of “economic losses,” but declining to permit recovery

of economic losses caused by negligent misrepresentation

in arm’s-length negotiations); Laux v. Woodworth, 169 Or

528, 529, 531, 129 P2d 290 (1942) (action to recover from

allegedly negligent attorney the amount that the plaintiff

believed she would have received by prevailing in the under-

lying action; claim rejected only because negligence allega-

tions were conclusory); Milton v. Hare et al., 130 Or 590, 596,

280 P 511 (1929) (action to recover for financial loss suffered

when attorneys negligently allowed default foreclosure judg-

ment to be taken and property sold; rejected because the

defendants’ negligence “was not the proximate cause of [the]

plaintiff’s loss”).

We presume that, when the legislature adopted an

ultimate repose limit that would apply to negligence claims

against lawyers, the legislature was aware that negligence

claims against lawyers commonly included claims for injury

548 Marshall v. PricewaterhouseCoopers, LLP

consisting of purely financial loss. See, e.g., Montara Owners

Assn. v. La Noue Development, LLC, 357 Or 333, 341, 353

P3d 563 (2015) (“The context for interpreting a statute’s

text includes the preexisting common law, and we presume

that the legislature was aware of that existing law.”). And

in compromising on a ten-year statute of repose that would

reach claims for negligent injury caused by lawyers, the

legislature used a term—”property”—that in both ordinary

and legal usage was understood to include “tangible assets”

such as money, and “intangible rights.” See Webster’s at

1818 (defining “property”); Black’s at 1382 (same). Absent

some specific indication that the legislature, nevertheless,

intended to treat claims for negligent injury to economic

interests more favorably than claims for negligent injury to

persons and physical property, the text, context, and legis-

lative history that we have examined point to a legislative

compromise that permitted all negligence claims to be gov-

erned by a “discovery” rule for purposes of the statute of

limitations and also subject to an outside limit on when the

claim can be brought. We turn to what plaintiffs and the

Court of Appeals identify as indications that the legislature,

nevertheless, intended to treat claims for negligent injury to

economic interests more favorably than claims for negligent

injury to persons and physical property.

The Court of Appeals identified different contex-

tual reasons to support its conclusion that the legislature

intended the phrase “injury to person or property” to have a

specialized, more limited, meaning when used in the phrase

“negligent injury to person or property” in ORS 12.115(1),

and plaintiffs urge us to follow that reasoning. That court

primarily relied on this court’s interpretation of a differ-

ent, later-enacted statute. See Marshall, 316 Or App at 427

(describing this court’s decision in Securities-Intermountain

v. Sunset Fuel, 289 Or 243, 247, 611 P2d 1158 (1980), as “[o]

f particular import”). In Securities-Intermountain, this court

examined ORS 12.135, which the 1971 Legislative Assembly

had enacted to impose new limits on the time for filing “[a]n

action to recover damages for injuries to a person or to prop-

erty” arising from “the construction, alteration, or repair”

of real property improvements. 289 Or at 246-47. As we will

explain, however, our analysis in Securities-Intermountain

Cite as 371 Or 536 (2023) 549

of the 1971 legislature’s intent in enacting ORS 12.135 does

not alter our understanding of the intent of the 1967 legisla-

ture in enacting ORS 12.115.

At the time, ORS 12.135 specified that any action to

which it applied “shall be commenced within two years from

the date of such injury to the person or property; provided

that such action shall be commenced within 10 years from

substantial completion of such construction, alteration or

repair of the improvement to real property.” ORS 12.135(1)

(1980).7 The action in Securities-Intermountain involved a

general contractor’s claim against an architect and heating

contractor seeking “financial losses from alleged breaches

of contract” due to faulty installation of a defective heating

system—what this court described as “a conventional action

for breach of a contract in the building industry.” 289 Or at

247, 250. The statutory construction question was whether

the 1971 Legislative Assembly had intended the two-year

statute of limitations in ORS 12.135 to apply to that type

of action or whether the action was governed by the gen-

eral six-year statute of limitations for contract claims—ORS

12.080. Id. at 247. Ultimately, this court concluded that the

1971 Legislative Assembly had not intended to shorten the

statute of limitations for “financial losses such as a reduced

value of the completed project due to the unsatisfactory per-

formance of the work.” Id. at 250-51. Rather, we concluded,

the legislature had intended ORS 12.135 to apply only to

“what is commonly meant by ‘personal injuries,’ i.e.[,] bodily

injuries including their psychic consequences, and physical

damage to existing tangible property.” Id. at 251.

Plaintiffs emphasize that the 1971 Legislative

Assembly carried out that intent by using a phrase that is

7

ORS 12.135 has been amended several times, and the comparable provision

now applies to

“[a]n action against a person by a plaintiff who is not a public body,

whether in contract, tort or otherwise, arising from the person having per-

formed the construction, alteration or repair of any improvement to real

property or the supervision or inspection thereof, or from the person having

furnished design, planning, surveying, architectural or engineering services

for the improvement.”

ORS 12.135(1). For such actions, the statute includes multiple options for the

repose period and specifies that the statute of limitations is “[t]he applicable

period of limitation otherwise established by law.” Id.

550 Marshall v. PricewaterhouseCoopers, LLP

similar to the phrase that the 1967 Legislative Assembly

had used to describe actions subject to the 10-year statute of

ultimate repose. And they ask us to conclude from that simi-

larity that the 1967 Legislative Assembly similarly intended

to limit the negligence statute of repose to negligence

actions for bodily injuries and physical damages to tangible

property. But Securities-Intermountain did not suggest that

the phrase used in ORS 12.135—“injuries to a person or to

property”—had a specialized legal meaning that refers only

to an injury to a limited type of “property.” On the contrary,

this court began by noting that whether the phrase excluded

injuries for financial losses could not be “wholly resolved by

an examination of [ORS 12.135’s] text” because “injury to

property” did not “preclude the wider reading urged by [the]

defendants that it covers such financial ‘injuries’ from faulty

performance as, for instance, a reduced value of the building

or the cost of substitute performance.” Id. at 248.

Thus, this court looked to the particular context and

legislative history of the statute to determine “whether ORS

12.135 applie[d] to a claim of financial losses from alleged

breaches of contract by the persons so engaged.” Id. at 247.

And, because answering that question in the affirmative

would mean that ORS 12.135 had replaced the existing six-

year contract statute of limitations for claims governed by

ORS 12.080, we focused particular attention on whether

the 1971 Legislative Assembly had intended that result. We

concluded that “[n]either the text nor the legislative history

persuades us that” the 1971 Legislative Assembly intended

the statute to eliminate “the six-year period of limitation on

commencing a conventional action for breach of a contract in

the building industry.” Id. at 250.

We also pointed to legislative history indicating

that the structure of the statute had been patterned on the

approach that the legislature had taken in crafting the spe-

cial limitations statute for “injuries to the person” caused

by a medical, surgical, or dental treatment. Id. at 249-50

(citing ORS 12.110(4) (1971)).8 What we meant is that, like

8

As described above, ORS 12.110(4) was originally adopted by the 1967

Legislative Assembly as part of SB 134, as a special limitations period for inju-

ries caused “where in the course of any medical, dental, surgical or other profes-

sional treatment or operation,” a “foreign substance” was “negligently permitted

Cite as 371 Or 536 (2023) 551

the structure of ORS 12.110(4) (1971), the structure that the

1971 Legislative Assembly chose for ORS 12.135 combined a

statute of limitations—in the form of a requirement that the

action “shall be commenced within two years from the date”

of a specified event—with a period of ultimate repose—in

the form of the caveat “provided that such action shall be

commenced within” a longer outside time limit. That ori-

gin for the structure, and the “chosen analogy” of a stat-

ute applicable to actions for medical and dental malprac-

tice, led this court to reason “that the contemplated injuries

were those analogous to the ‘injuries to the person’ covered

by ORS 12.110(4) [(1971)].” Id. at 250. Consequently, given

our understanding that the legislature had not intended to

shorten the statute of limitations for “a conventional action

for breach of a contract in the building industry[,]” we con-

cluded that the 1971 Legislative Assembly did not intend

the limitations in ORS 12.135 to apply to actions for “finan-

cial losses such as a reduced value of the completed project

due to the unsatisfactory performance of the work or the

added cost of satisfactory completion or replacement.” Id. at

251. In other words, our construction of the statute at issue

in Securities-Intermountain depended on legislative history

particular to ORS 12.135. Given the very different history

of ORS 12.115, which we have described above, we are not

persuaded that our decision in Securities-Intermountain

informs our understanding of what the 1967 Legislative

Assembly intended when enacting ORS 12.115.

Plaintiffs, nevertheless, argue that our conclusion

in Securities-Intermountain about the meaning of the phrase

“injury to * * * property” in ORS 12.135 correctly captures

an established legal distinction between injuries to “person

or property” and injuries to purely economic interests, and

they urge us to presume that the 1967 Legislative Assembly

intended to capture that distinction when it enacted a stat-

ute of ultimate repose for “negligent injury to person or

property.” As noted, the context for interpreting a statute

“includes the preexisting common law, and we presume that

the legislature was aware of that existing law.” Montara,

to remain” within the patient’s body. ORS 12.110(4) (1967). By 1971, however,

the statute had been amended to extend to actions “arising from any medical,

surgical or dental treatment, omission or operation[.]” Or Laws 1969, ch 642, § 1.

552 Marshall v. PricewaterhouseCoopers, LLP

357 Or at 341. The Court of Appeals offered a slight varia-

tion on that reasoning when it pointed to the same “distinc-

tion between purely economic loss and injuries to persons or

property that has long been the basis of the economic loss

doctrine” to conclude that our construction of the statute at

issue in Securities-Intermountain reflects “the ‘plain, natu-

ral, and ordinary meaning’ of the ‘injury to person or prop-

erty’ language used in ORS 12.115(1).” Marshall, 316 Or App

at 429, 430 (quoting PGE, 317 Or at 611).

We have already explained, however, that Securities-

Intermountain rejected the notion that the phrase “injury

to a person or to property” had a plain, natural, or ordi-

nary meaning that would exclude “financial ‘injuries’ from

faulty performance.” 371 Or at 549-50 (quoting Securities-

Intermountain, 289 Or at 248). And, although we ultimately

concluded that the legislature had intended to distinguish

between actions for “physical damage to existing tangible

property” and actions for “financial losses such as a reduced

value of the completed project due to the unsatisfactory

performance of the work or the added cost of satisfactory

completion or replacement,” id. at 251, we did not rely on

any established legal distinction between those categories

of injury to reach our conclusion about legislative intent.

To explain what is often referred to as the “eco-

nomic loss” doctrine, the Court of Appeals highlighted this

court’s decision in Harris v. Suniga, 344 Or 301, 180 P3d

12 (2008). As Harris explains, the economic loss doctrine in

Oregon is reflected in the rule that “ ‘one ordinarily is not

liable for negligently causing a stranger’s purely economic

loss’ ” in the absence of “ ‘some source of duty outside the

common law of negligence,’ * * * such as a special relation-

ship or status that imposed a duty on the defendant beyond

the common-law negligence standard.” Id. at 308 (quoting

Hale, 304 Or at 284) (internal citation omitted; brackets

from Harris omitted).

But Harris extensively described the history of

Oregon’s economic loss doctrine, and the earliest identified

case post-dates the enactment of ORS 12.115. Id. at 307; see

id. (“[T]his court has recognized the substance (although not

the label) of the economic loss doctrine at least since Snow

Cite as 371 Or 536 (2023) 553

v. West, 250 Or 114, 440 P2d 864 (1968)[.]”). Moreover, it

is doubtful that anyone in 1968 would have recognized the

substance of the economic loss doctrine from reading Snow,

which held only that an employer does not have a cause of

action in tort “for profits lost because of a negligent injury to

an ordinary employee.” Snow, 250 Or at 117-18. 9 And Snow

emphasized that “[t]here [were] no Oregon decisions on the

subject.” Id. at 116. Indeed, it appears that the now-import-

ant distinction between negligently caused injury to tan-

gible property and negligently caused injury to economic

interests was first articulated in its currently recogniz-

able form in this court’s 1992 Onita decision, in which this

court explained, “[i]n this opinion we use the term ‘economic

losses’ to describe financial losses such as indebtedness

incurred and return of monies paid, as distinguished from

damages for injury to person or property.” 315 Or at 159

n 6. In short, there is no historical basis for assuming that

the 1967 Legislative Assembly would have understood the

phrase “negligent injury to person or property” to have an

established meaning that excludes financial loss.

Plaintiffs and amici urge us to conclude that exist-

ing law in 1967 recognized some distinction between the

ability to recover for negligently caused economic loss and

the ability to recover for negligently caused harm to physi-

cal property, even if our case law had not yet established a

special meaning for the phrase “negligent injury to person

or property” that excludes economic loss. And they urge us

to presume that the legislature enacted ORS 12.115 with an

awareness that existing law limited a plaintiff’s ability to

recover in negligence for economic loss, regardless of whether

the phrase “injury to person or property” had come to have a

special meaning by 1967. They cite a few cases that suggest

some earlier limitations on claims involving economic loss.

See Ore-Ida Foods v. Indian Head, 290 Or 909, 916, 627 P2d

469 (1980) (stating that the “prevailing rule in the United

States and England is that a plaintiff may not recover for

9

The reference to an “ordinary employee” presumably distinguished the

one case that the court identified as permitting an action “to recover wages

and maintenance and cure” that a ship owner paid to an injured seaman—a

relationship viewed as “more akin to that of father to child rather than that of

employer to employee.” See Snow, 250 Or at 117 n 1 (citing Jones v. Waterman S.

S. Corporation, 155 F2d 992 (3rd Cir 1946)).

554 Marshall v. PricewaterhouseCoopers, LLP

economic loss resulting from negligent infliction of bodily

harm to a third person,” citing cases from other jurisdictions

and legal treatises); Price v. Gatlin, 241 Or 315, 316-17, 405

P2d 502 (1965) (holding that the plaintiff, who alleged that

defective tractor had caused economic loss to his business,

could not hold the “wholesaler liable for innocently passing

along” the defective tractor); Wights v. Staff Jennings, 241

Or 301, 303, 311, 405 P2d 624 (1965) abrogated by Heaton

v. Ford Motor Co., 248 Or 467, 435 P2d 806 (1967) (holding

that non-negligent seller of boat, which had exploded from

alleged defect, could be held liable to plaintiff who suffered

personal injuries during explosion, if jury found the defect

created an ultrahazardous condition).

Although we question whether anyone in 1967

would have understood those cases as suggesting a doctrine

that liability for negligence ordinarily does not extend to

liability for purely financial loss, the bigger challenge for

plaintiffs is that their premise does not lead to the conclu-

sion that they seek. First, a doctrine that governs what type

of damages can be recovered in a negligence action has no

apparent bearing on a statute that controls the time within

which a negligence action can be filed. Moreover, even if we

assume that the legislature understood in 1967 that negli-

gence generally did not expose the negligent party to liabil-

ity for injury to solely economic interests, we have already

explained that the relationship between lawyer and client

is one of the types of relationships that exposes the negli-

gent party to liability for injury to economic interests, and

the legislative history of ORS 12.115 makes clear that the

legislature intended the ultimate repose limit on actions for

“negligent injury to person or property” to apply to actions

in which a lawyer’s negligence caused the injury. 371 Or

at 545, 547. Thus, an assumed awareness that such liabil-

ity generally would not arise in negligence actions tells us

nothing about whether the legislature intended to limit the

time for bringing negligence actions in which liability for

injury to the plaintiff’s economic interests is cognizable.

And plaintiffs have identified no reason why the legisla-

ture would have chosen to treat actions to recover for negli-

gently caused economic injury more favorably than actions

Cite as 371 Or 536 (2023) 555

for negligently caused physical injury—the converse of the

preference reflected in the economic loss doctrine.

Plaintiffs, nevertheless, urge us to conclude that

the legislature did intend to adopt a statute of ultimate

repose that limits the time in which to file actions for neg-

ligent injury to physical property, while sparing actions for

negligent injury to other categories of property, by pointing

to the context of what they consider to be a related stat-

ute. Specifically, plaintiffs emphasize that ORS 12.110(1),

which establishes a statute of limitations for an action “for

any injury to the person or rights of another,” uses a differ-

ent phrase to describe the covered actions than the phrase

that the legislature used in ORS 12.115(1). That statute

of limitations provision was in effect at the time that the

1967 Legislative Assembly enacted ORS 12.115 and, indeed,

was shown as existing statutory text in the bill that added

the new repose statute. See Or Laws 1967, ch 406, § 2(2).

According to plaintiffs, the legislature’s decision to use a dif-

ferent phrase for the negligence statute of repose provision

in ORS 12.115(1) indicates that the legislature intended the

provision to govern a different—and more limited—category

of actions than those governed by ORS 12.110(1). Justice

Masih’s dissent assigns significance to that different termi-

nology in concluding that the legislature intended to exempt

claims for negligent injury to economic interests from the

statute of ultimate repose, as did the Court of Appeals. 371

Or at 571, 572 (Masih, J., dissenting); see also Marshall, 316

Or App at 431 (“We cannot ignore the fact that the legisla-

ture chose to forgo the broader language previously adopted

in ORS 12.110(1) when it enacted ORS 12.115(1) and instead

adopted narrower language.”). But we are not persuaded.

The premise of that argument may be sound, but

the conclusion does not follow. In other words, it is true that

the legislature used a different phrase in ORS 12.115(1)

than the existing phrase in ORS 12.110(1), and we generally

assume that when the legislature uses different terms—at

least in the same statute—it intended different meanings.

See Dept. of Transportation v. Stallcup, 341 Or 93, 101, 138

P3d 9 (2006) (use of different terms in real estate appraisal

statute suggests that each was intended to have different

556 Marshall v. PricewaterhouseCoopers, LLP

meaning). But “[s]uch ‘rules’ of interpretation are mere

assumptions that always give way to more direct evidence

of legislative intent.” State v. Lane, 357 Or 619, 629, 355 P3d

914 (2015). And we have already explained that the text and

legislative history supply more direct evidence that the leg-

islature compromised on a bill that would leave open the pos-

sibility that Berry’s discovery rule could extend the statute

of limitations for other professional negligence claims while

also setting an outside limit on when such claims could be

brought. In doing so, the legislature limited the period of

ultimate repose to claims for “negligent injury to person or

property of another,” but it did not limit the period of ulti-

mate repose to claims for “negligent injury to the person or

[physical] property of another,” and it expressed no intent to

limit the period of ultimate repose according to whether the

professional negligence caused injury to physical property

as opposed to injury to other types of property. 371 Or at

546.

Both the provision at issue in ORS 12.115(1) and

the reference in that statute to ORS 12.110 were a product of

the two weeks that the bill spent in Conference Committee.

As Justice Masih’s dissent points out, “[r]ecords of what

happened in the Conference Committee are limited to a

few margin notes and a summary report.” 371 Or at 571

(Masih, J., dissenting). Thus, there is no evidence of why the

legislature did not simply copy the phrase set out in ORS

12.110(1)—”any injury to the person or rights of another”—

when describing the scope of actions that would be governed

by the period of repose. But multiple distinctions between the

two statutes highlight possible explanations for the slight

variation in phrasing, beyond plaintiffs’ assumption that

the legislature intended to limit the new period of repose to

claims for negligently caused injury to physical property.

First, the phrase set out in ORS 12.110(1) reaches

claims for intentional injury as well as claims for negligent

injury. The legislature’s decision to use a different phrase

in ORS 12.115(1) might be explained by the fact that the

new statute of repose applied only to actions for negligent

injury, precluding the legislature from simply copying the

phrase from ORS 12.110(1). Second, as defendant points out,

Cite as 371 Or 536 (2023) 557

the text now found in ORS 12.110(1) was written more than

100 years before the legislature adopted ORS 12.115(1). See

General Laws of Oregon, Civ Code, ch I, title II, §§ 3, 6,

8, p 140-41 (Deady 1845-1864) (setting out provisions now

found at ORS 12.110(1)). And the pertinent phrasing of ORS

12.110(1) has been in place since 1919. Or Laws 1919, ch 122,

§ 1. But see Or Laws 1981 ch 149, § 1 (removing actions for

“criminal conversation” from the list of actions governed by

ORS 12.110). Thus, the difference between “injury to the

person or rights of another” and “negligent injury to person

or property” might simply reflect a preference for contem-

porary negligence terminology. Ultimately, we cannot know

why the legislature used the term “property” rather than

“rights” when drafting the compromise provision of ORS

12.115(1). But we cannot assume that it did so because it

intended to limit the scope of ORS 12.115(1) to claims for

negligent injury to physical property, when the term “prop-

erty” was readily understood to reach economic interests

and the legislative history indicates that the legislature

intended the period of ultimate repose in ORS 12.115(1) to

apply to actions for legal negligence—negligence that by

long tradition gave rise to liability for injury to economic

interests.10

CONCLUSION

Based on the text, context, and helpful legislative

history, we are persuaded that the legislature did not intend

to spare actions for negligent injury to economic interests

from the ultimate cut-off date that it prescribed in ORS

12.115(1) for “any action for negligent injury to person or

property.” Thus, the trial court correctly rejected plaintiffs’

argument that ORS 12.115(1) does not bar claims for neg-

ligent injury to economic interests. Because the Court of

Appeals held otherwise, it did not address plaintiffs’ alter-

native, second assignment of error, which challenged the

10

We emphasize that the significance of the statute of repose is that it fore-

closes claims for negligently caused injury regardless of whether the injury was

discoverable. See Shasta View Irrigation Dist., 329 Or at 162 (so explaining). For

lawyers who practice in areas of the law in which negligence routinely goes undis-

covered for more than a decade, the compromise that the legislature struck for

ORS 12.115 falls disproportionately on the clients, whose claims will be fore-

closed before they even accrue. But any adjustments to address that disparity are

a matter of policy choice for the legislature to address.

558 Marshall v. PricewaterhouseCoopers, LLP

trial court’s conclusion that ORS 12.115(1) bars plaintiffs’

claims. Our contrary construction of the statute makes it

appropriate to remand to Court of Appeals, for that court to

now consider plaintiffs’ second assignment of error.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for consid-

eration of plaintiffs’ second assignment of error.

JAMES, J., dissenting.

In my view, this case exposes a gap in our usual

statutory construction methodology derived from PGE v.

Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d

1143 (1993). Under that approach, when “the legislature has

not defined a particular term, we assume that the legisla-

ture intended to give words of common usage their ‘plain,

natural, and ordinary meaning.’ ” State v. Clemente-Perez,

357 Or 745, 756, 359 P3d 232 (2015). In that instance, we

generally look to the common dictionary understanding of

the term. There is an exception to that rule, however. When

the legislature uses what we call a “term of art,” we do not

turn to common dictionary definitions; we instead “look to

the meaning and usage of those terms in the discipline from

which the legislature borrowed them.” Comcast Corp. v.

Dept. of Rev., 356 Or 282, 296-97, 337 P3d 768 (2014).

Critically, this court has never clearly articulated

a methodology for how it determines, in the first instance,

whether a term is one of “common usage” or a “term of art.”

In theory, that should be no different than our approach to

any other statutory question, resolved by consideration of

the statute’s text, context, and legislative history. State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). In practice,

however, I am not sure our approach to legislative intent

in this area has been without flaw. Discerning legislative

intent is a question resolved through the examination of a

historical record. And all approaches to history carry the

risk of cognitive bias by the historian. I believe our treat-

ment of this issue may evidence that.

In reviewing the case law where this court has

considered whether to classify terms as “common usage” or

“terms of art,” no clear methodology emerges. At times, we

Cite as 371 Or 536 (2023) 559

have simply announced that the term, by its very nature,

was not of common usage, even if we later concluded the

common and term of art definitions were the same. See, e.g.,

State v. McNally, 361 Or 314, 322, 392 P3d 721 (2017) (“The

phrase ‘passive resistance’ is a term of art that has the

same meaning whether considered in a lay or a legal con-

text.”). At other times, we have implied a more historically

grounded approach, but, even then, included language min-

imizing the consistency of the application of that approach.

See, e.g., Comcast Corp., 356 Or at 296 (explaining that we

will “potentially also consider the overall statutory scheme

in which a legal term appears, as well as the meaning that

the term has for regulators who oversee the field”) (empha-

sis added). And at other times, we simply refused to engage

with the question altogether. See, e.g., Oak Lodge San. Dist.

v. Gen. Ins. Co., 240 Or 103, 106, 399 P2d 351 (1965) (“We

prefer not to engage in a definitional exercise which might

cause the words ‘work’ and ‘project’ to be regarded as terms

of art. Such a result could create unforeseen mischief for

future litigants and is not necessary to a decision in this

case.”).

The lack of a defined methodology has resulted

in our classification of terms in ways that, when viewed

together, struggle to paint a coherent methodological pic-

ture. We have labeled the terms “lawful order,” “risk,” “dan-

ger,” “material,” “departure,” and “threatens” as common.

See, e.g., State v. Ausmus, 336 Or 493, 503-04, 85 P3d 864

(2003) (“lawful order”); Woodbury v. CH2M Hill, Inc., 335 Or

154, 161, 61 P3d 918 (2003) (“risk” and “danger”); State v.

Rogers, 334 Or 633, 640, 55 P3d 488 (2002) (“material” and

“departure”); State v. Hall, 327 Or 568, 572-73, 966 P2d 208

(1998) (“threatens”). In contrast, sometimes without much

explanation, we have labeled the terms “form,” “unconscion-

able,” “appraisal,” and “mental disease or defect” as terms of

art. See, e.g., State v. Haji, 366 Or 384, 402-04, 462 P3d 1240

(2020) (“form”); Gordon v. Rosenblum, 361 Or 352, 361, 393

P3d 1122 (2017) (“unconscionable”); Dept. of Transportation

v. Stallcup, 341 Or 93, 99-102, 138 P3d 9 (2006) (“appraisal”);

Tharp v. PSRB, 338 Or 413, 423, 110 P3d 103 (2005) (“men-

tal disease or defect”).

560 Marshall v. PricewaterhouseCoopers, LLP

Although terms of art can come from any disci-

pline, legal terms of art pose a particular problem for courts.

Numerous terms appear in the law, and although some, like

“probable cause” have no common meaning outside the legal

context, other terms, like “property,” have legal meanings

and common meanings, and the two may conflict in vari-

ous ways. As the majority explains, certain legal definitions

of “property” include “ ‘everything which is the subject of

ownership, corporeal or incorporeal, tangible or intangi-

ble, visible or invisible, real or personal * * * extend[ing] to

every species of valuable right or interest.’ ” 371 Or at 542-43

(quoting Black’s Law Dictionary 1382 (4th ed 1951)). But the

common understanding of the term “property” may have an

aspect of tangibility to it that a legal definition does not. For

example, Webster’s defines “property” to mean, among other

things, “[s]omething that is or may be owned or possessed:

wealth, goods; specif : a piece of real estate * * * the house …

surrounded by the ~ “Webster’s Third New Int’l Dictionary

1818 (unabridged ed 2002).

If initial classification of terms as ones of “common

usage” or “terms of art” is a search for legislative intent,

then the cognitive bias of the court, as historian, is that

courts are preconditioned to view such terms as legal terms

of art, because courts are trained and immersed in the

law. But Oregon employs a part-time, citizen legislature.

Although many members of that body are lawyers, the vast

majority are not. And although the legislature is advised

by lawyers in the Legislative Counsel’s Office, the general

drafting guidelines of that office set the expectation to leg-

islative members that terms that give rise to legally spe-

cific meanings typically should be avoided. See, e.g., Oregon

Legislative Assembly, Bill Drafting Manual 4.12 (18th ed

2018) (“A drafter may be tempted to make an extravagant

use of elegant words when simpler expression is adequate.

For example, use of ‘respectively’ usually is superfluous. The

drafter needs also to avoid words that give rise to legal argu-

ments. ‘Valuable consideration’ raises a whole series of law

school questions that ‘compensation’ does not. ‘Bona fide’ is

Cite as 371 Or 536 (2023) 561

not only usually mispronounced but is subject to argument

on its specific meaning.”)1

In this case, the issue is the meaning of “negligent

injury to person or property” in ORS 12.115(1). The Court

of Appeals resolved that question by treating the terms as

words of common usage, reasoning by reference to our previ-

ous decisions which had treated similar language in differ-

ent context as words of common usage:

“And although Securities-Intermountain[ Inc. v. Sunset Fuel

Co., 289 Or 243, 611 P2d 1158 (1980)] and Portland Trailer[

& Equip., Inc. v. A-1 Freeman Moving & Storage, Inc., 166

Or App 651, 5 P3d 604 (2000), opinion adh’d to as modified

on recons, 168 Or App 654 (2000)] both construe provisions

enacted after ORS 12.115 was passed in 1967, and both

cases were obviously decided after ORS 12.115 was enacted

as well, they remain relevant to our construction of ORS

12.115(1). Those constructions reflect the plain, natural,

and ordinary meaning of the ‘injury to person or property’

language used in ORS 12.115(1).”

Marshall v. PricewaterhouseCoopers, LLP, 316 Or App 416,

430, 505 P3d 40 (2021) (some internal quotation marks

1

I encourage readers to not take my critique of method in this case as a

disguised call for Oregon to employ corpus linguistics. “Corpus linguistics is the

empirical study of language using samples (or bodies) of texts called corpora (in

the plural). A corpus is constructed in order to study a particular register (vari-

ety of texts associated with a situational context) or speech community (group

of language users who share the same dialect or language norms).” James C.

Phillips & Jesse Egbert, A Corpus Linguistic Analysis of ‘Foreign Tribunal’, 108

Va L Rev Online 207, 220 (2022); see also Stephen C. Mouritsen, Hard Cases and

Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning,

13 Colum Sci & Tech L Rev 156, 160-61 (2012) (“When judges * * * demand that

statutory terms be interpreted according to their ordinary meaning, they impli-

cate a set of empirical questions, many of which are amenable to different types of

linguistic analysis. * * * [I]n the field of corpus linguistics, scholars rely on large

electronic databases called corpora to determine * * * those meanings that are

consistent with common usage * * * or * * * the term’s ordinary or most frequent

meaning.”).

Corpus linguistics has existed in the academic field of linguistics for some

time, but has recently come into vogue in legal circles. Although I do not entirely

foreclose what corpus linguistics might offer the law, it is potentially problematic

on many levels, including suffering from the limitations and biases of those who

compile the corpus, manipulation through the choice of database, and potentially

overly suggestive results due to the construction of the search terms and meth-

ods. For those reasons, I have consciously declined to employ a corpus linguistics

argument in this dissent. I know courts to be generally poor historians, by aca-

demic standards; I suspect we are even worse linguistic researchers.

562 Marshall v. PricewaterhouseCoopers, LLP

omitted). That court reviewed case law and noted that the

common meaning of “injury to person or property” was at

odds with “purely financial loss that does not appear to

involve physical damage to tangible property or implicate

the ownership or disposition of property.” Id. at 427-30. The

court ultimately concluded:

“Plaintiffs’ claim against [defendant] is an action to recover

legal fees associated with the * * * transaction [in question]

and later IRS investigation and litigation, as well as the

financial losses plaintiffs suffered when they were found

liable to the IRS for over $20 million in back taxes, pen-

alties, and interest. Those injuries fit firmly within our

established definition of ‘economic loss’ and form a claim

that seeks recovery for ‘indebtedness incurred [or] return

of monies paid.’ * * * Plaintiffs’ claim does not assert any

‘injury to person or property,’ because it does not implicate

physical damage to existing tangible property or relate to

the ownership and disposition of property.”

Id. at 432 (citations omitted). The Court of Appeals was

entirely correct.

The majority’s reversal of the Court of Appeals’

decision in this case hinges on treating “property” as a legal

term of art and then defining it in such a manner so as to

include ephemeral types of potential economic losses, such

as future tax penalties, so as to require reversal. That argu-

ment—categorizing the term as a legal term of art—was

never made to the Court of Appeals. It appears for the first

time in arguments to this court. That gives me pause. I do

appreciate, however, the majority not simply accepting the

parties’ assertion that this is a term of art without exam-

ination. That critical examination alone is an improvement

over our past practices.

But, ultimately, the majority does not persuade me

why the term must be treated as a legal term of art. The

majority reasons that a term of art definition must have been

intended by the legislature because the statute “addresses

a legal concept—an outside limit on when a legal action for

negligence can be filed—meaning that the intended audi-

ence was those who would file, or defend against, a legal

negligence action.” 371 Or at 542. Yet we have construed

Cite as 371 Or 536 (2023) 563

terms as ones of “common usage” in legislation involving

legal actions numerous times, as previously cited. For me, I

remain unconvinced, because I read the majority reasoning

as assuming what it sets out to prove—that is, that we’re

dealing with a legal concept of property and not the common

understanding of the term.

From my review of the legislative record of ORS

12.115(1), I find no indication that the legislature know-

ingly employed the term “property” as a legal term of art, as

opposed to a term of common meaning imputing a tangible

nature, and the majority points to no legislative history that

would make it clear that the legislature understood itself to

be knowingly adopting a specialized “term of art” definition

of property. Without that necessary showing in the histori-

cal record, in my view, the majority errs in one of two ways.

First, and the least damaging, is that our opinion

today simply continues our tradition of not fully explaining

why a term is a “term of art.” In this manner, we do little

more than add to an already incongruous area of the law—

announcing a result, but not clarifying the methodology.

But more concerning to me is that our opinion today

could be read as impliedly announcing a new rule of statu-

tory interpretation in its reversal of the Court of Appeals’

approach—that the preliminary classification of statutory

terms into “common usage” versus “terms of art” employs a

presumption in favor of term of art definitions any time that

the legislative subject might roughly be understood to speak

to an audience of lawyers. In such instances, when the legis-

lature uses a word that parties, or courts, can subsequently

identify as a term of art, at any stage of appellate review,

courts will adopt the term of art meaning—and lower courts

err in failing to adopt that meaning—even when no evi-

dence in the legislative record suggests that the legislature

themselves knew of that meaning, knew the source of that

meaning, or knowingly adopted that meaning. I respectfully

decline to endorse that approach.

From my perspective, labeling a term as a “legal

term of art,” simply because the court recognizes that the

term has a particular meaning in the law, invites potential

564 Marshall v. PricewaterhouseCoopers, LLP

cognitive bias into the process, resulting in potentially flawed

history and, accordingly, potentially flawed identification of

legislative intent. I would, therefore, employ the opposite

presumption than the majority: that all terms employed by

the legislature are terms of common usage, unless the con-

text and the legislative record establishes that the legisla-

ture knowingly employed a term of art definition.2

Construing the term as one of common usage does

not end the inquiry, however. I agree with the majority that

some common definitions of property could reach intangi-

ble future “valuable right[s] or interest[s].” 371 Or at 542-

43. But some clearly do not reach so far, and the questions

remains—which is more likely to have been the legislature’s

intent?

I conclude that the legislature, in 1967, was most

likely employing a definition of property that implies tangi-

bility. In addition to the reasoning employed by the Court of

Appeals, which I believe to be correct, I note that the statute’s

phrase “injury to person or property” is not to be read as a

unitary concept, but as a short list. When viewed as a list,

the word “property” follows the word “person” within the stat-

ute, a clearly tangible term. “[W]hen the legislature chooses

to state both a general standard and a list of specifics, the

specifics do more than place their particular subjects beyond

the dispute; they also refer the scope of the general standard

to matters of the same kind, often phrased in Latin as ‘ejus-

dem generis.’ ” Bellikka v. Green, 306 Or 630, 636, 762 P2d 997

(1988). Accordingly, when terms follow one another in a stat-

ute, and those terms begin narrowly, but conclude more gener-

ally, we often look to the shared “basic characteristics” of each

to construe the more general term. See, e.g., Lewis v. CIGNA

Ins. Co., 339 Or 342, 350-51, 121 P3d 1128 (2005). Here, the

commonality between person and property is tangibility.

Further, just a few years before the statute in ques-

tion was enacted in 1967, we discussed, at some length, the

2

Even if we could conclude that the legislature intended to adopt a term of

art definition, as Justice Masih persuasively notes in her dissent, Blackstone

defined property in a manner that is arguably inconsistent with the term of art

definition proffered by the majority. See 371 Or at 567 (Masih, J., dissenting).

The lack of uniformity even among the term of art definitional sources further

highlights the need for grounding in the legislative record.

Cite as 371 Or 536 (2023) 565

differing conceptions of property in State v. Tauscher, 227 Or

1, 11-13, 360 P2d 764 (1961). There, we noted that one com-

mon definition of property could “include all rights which

are of value,” including “ownership interests which are not

capable of possession.” Id. at 11-12. But we also noted that

property could be understood to mean “only physical prop-

erty capable of possession.” Id. at 12.

In Tauscher, we ultimately held that the crime

of embezzlement did not reach to the intangible property

involved in that case, reasoning:

“The interest which the Association had in the check-

ing account was an intangible chose in action. This type of

chose is to be contrasted with tangible choses in action, a

term used to describe certain commercial documents such

as bonds, bills of exchange, bank checks and promissory

notes. * * * Such tangible choses are capable of being pos-

sessed; intangible choses are not.

“* * * * *

“In the case at bar, we are of the opinion that the checks,

while in the defendant’s possession, were not tangible cho-

ses in action. Thus the checks were not ‘property’ within

ORS 165.005 and ORS 164.310. Therefore, defendant did

not and could not embezzle the checks.”

Id. at 13-15.

Certainly, Tauscher involved an entirely different

statute, and context, than this case. But it establishes that,

by 1967, the legislature was aware of the difference between

tangible and intangible property, and that, at least for some

statutes, this court would construe the common definition of

“property” narrowly, to mean tangible property. It is therefore

meaningful, in my view, that the 1967 Legislative Assembly

took no steps to include terms such as “intangible property,”

“rights,” or “interests” in the wording of the statute. Given

Tauscher, the legislature understood that, if it intended a

statute to reach beyond the common, tangible, definition of

property, it might need to clearly say so. It did not.

The Court of Appeals relied on our holding in

Securities-Intermountain, where we said, “ ‘injuries to * * *

person(s) or to property’ was thought to encompass what is

566 Marshall v. PricewaterhouseCoopers, LLP

commonly meant by ‘personal injuries,’ i.e. bodily injuries

including their psychic consequences, and physical damage

to existing tangible property, but not financial losses * * *.”

289 Or at 251. I view the reasoning expressed by this court

in Securities-Intermountain in 1980 as a continuation of the

concepts expressed in Tauscher, in 1961. Given that context,

I find it more likely that the 1967 Legislative Assembly—

operating squarely in that time period—intended the use

of the term “property,” without any qualifiers, to reflect the

common, narrow, tangible definition of the term.

For those reasons, I cannot conclude that the Court

of Appeals’ decision was incorrect. I therefore respectfully

dissent.

MASIH, J., dissenting.

I would affirm the decision of the Court of Appeals,

holding that plaintiffs’ claim is not barred by ORS 12.115(1)

because “it does not implicate physical damage to existing

tangible property or relate to the ownership and disposition

of property” and therefore, does not assert any “injury to

person or property” within the meaning of ORS 12.115(1).

Marshall v. PricewaterhouseCoopers, LLP, 316 Or App 416,

432, 505 P3d 40 (2021). I agree with the Court of Appeals that

we cannot ignore the legislature’s choice to forgo the broader

wording of “injury to person or rights of another” from ORS

12.110(1) when it enacted ORS 12.115(1).1 316 Or App at 431.

And I disagree with the majority that the omission of the

broader “rights of another” wording might simply reflect a

preference for modern legal terminology. There is nothing in

the legislative history to indicate such a preference, and ordi-

narily, when the legislature uses different terms, we assume

1

At the time when ORS 12.115 was enacted, ORS 12.110(1) (1965) provided:

“An action for assault, battery, false imprisonment, for criminal conver-

sation, or for any injury to the person or rights of another, not arising in con-

tract, and not especially enumerated in this chapter, shall be commenced

within two years; provided, that in an action at law based upon fraud or

deceit, the limitation shall be deemed to commence only from the discovery of

the fraud or deceit.”

(Emphasis added.) That pre-existing wording in ORS 12.110(1) is important con-

text for interpreting the meaning of ORS 12.115(1), because the same bill (Senate

Bill (SB) 134 (1967)) that created ORS 12.115(1), also created ORS 12.110(4), and

ORS 12.115(2) explicitly refers to ORS 12.110. Thus, ORS 12.115 and ORS 12.110

are intended to be read together.

Cite as 371 Or 536 (2023) 567

that the legislature intends those terms to have different

meanings, particularly when the terms appear together in

the same statutory scheme and may give rise to different

legal consequences. See, e.g., Norwood v. Premo, 287 Or App

443, 451, P3d 502, rev den, 362 Or 300 (2017) (stating stan-

dard and citing Dept. of Transportation v. Stallcup, 341 Or

93, 100-01, 138 P3d 9 (2006)). Ultimately, the “text” selected

by the 1967 Legislative Assembly to capture its intent in

ORS 12.115(1) is “negligent injury to person or property,”

instead of “any injury to the person or rights of another.”

Both phrases appear to have their roots in the com-

mon law, and the former covers only a subset of the natural

rights of persons. See, e.g., Kosciolek v. Portland Ry., L. & P.

Co., 81 Or 517, 522, 160 P 132 (1916) (“The natural rights of

a person at common law are the right of personal security

in the legal enjoyment of life, limb, body, health, and repu-

tation, the right of personal liberty, and the right of private

property.” (citing William Blackstone, 1 Commentaries on

the Laws of England 125-29 (1st ed 1765))). At common law,

the term “property” had a generally understood meaning.2

Blackstone divided property into real and personal property.

He described “real property” as property “which consists of

such things as are permanent, fixed, and immoveable; as

lands, tenements, and hereditaments of all kinds, which are

not annexed to the person, nor can be moved from the place in

which they subsist.” William Blackstone, 3 Commentaries on

the Laws of England 144 (1st ed 1768). And he described “per-

sonal property” as property “which consists of goods, money,

and all other moveable chattels, and things thereunto inci-

dent; a property, which may attend a man’s person wherever

he goes, and from thence receives its denomination[.]” Id.

Legal dictionaries also defined “property” to mean, among

other things, the “[r]ightful dominion over external objects;

ownership; the unrestricted and exclusive right to a thing;

the right to dispose of the substance of a thing in every legal

way, to possess it, to use it, and to exclude everyone else

2

I agree with Justice James’s dissent that we should look for legisla-

tive intent to characterize a term as a legal term of art. See 371 Or at 563-64

(James, J., dissenting). In the absence of such an intent, we should give words

outside the legal context their common meanings. I trace the history of the legal

definition here, because that is the approach that the majority followed, but, as

explained, I reach a different conclusion.

568 Marshall v. PricewaterhouseCoopers, LLP

from interfering with it.” Henry Campbell Black, Dictionary

of Law Containing Definitions of the Terms and Phrases of

American and English Jurisprudence, Ancient and Modern

953 (1891).

Generally, under the common law, negligent injury

to such rights encompassed only physical damage to real or

personal property. See Harris v. Suniga, 344 Or 301, 310,

180 P3d 12 (2008) (explaining that, in this court’s economic

loss cases, “the court [had] adher[ed] to the distinction that

had developed in the common law between ‘purely economic

losses,’ on the one hand, and damages for physical injuries

to person or property, on the other”). In Ore-Ida Foods v.

Indian Head, this court referred to those common-law roots,

noting that “[t]he prevailing rule in the United States and

England is that a plaintiff may not recover for economic

loss resulting from negligent * * * harm to a third person.”

290 Or 909, 916, 627 P2d 469 (1981). There, this court cited

Snow v. West, 250 Or 114, 440 P2d 864 (1968), along with a

1903 case from Georgia and a 1966 case from England, as

good examples. Ore-Ida Foods, 290 Or at 917 (citing Snow;

Byrd v. English, 117 Ga 191, 43 SE 419 (1903); Weller & Co.

v. Foot & Mouth Disease Research Institute, 1 QB 569 (1966)).

In Hale v. Groce, this court explained that, to recover for

purely economic losses, “[i]t does not suffice that the harm

is a foreseeable consequence of negligent conduct that may

make one liable to someone else, for instance to a client.

Some source of a duty outside the common law of negligence

is required.” 304 Or 281, 284, 744 P2d 1289 (1987). Thus,

to support negligence claims for purely financial loss, this

court has looked for other professional, special, or contrac-

tual relationships, which may give rise to a duty to exercise

reasonable care on behalf of another’s interests. See, e.g.,

Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149, 159-

62, 843 P2d 890 (1992) (stating and applying rule in claim

for negligent misrepresentation).

The majority points out that those cases describing

the “economic loss doctrine” post-date the 1967 enactment

of ORS 12.115(1) and also that this case involves a “spe-

cial relationship” between an attorney and a client, which

was recognized at common law to impose an obligation

Cite as 371 Or 536 (2023) 569

to exercise extra care to avoid negligent injury, including

injury resulting in purely financial losses. See Currey v.

Butcher, 37 Or 380, 385, 61 P 631 (1900) (“Where one adopts

the legal profession, and assumes to exercise its duties [on]

behalf of another for hire, the law imposes a duty to exercise

reasonable care and skill, and, if an injury results to his

client from want thereof, he is liable to respond in damages

to the extent of the injury sustained. This duty and liabil-

ity arise from the relation of the parties under the contract,

rather than from the contract itself.”); 371 Or at 546-47, 552.

But the fact that an attorney may be held liable for negligent

injury to a client’s economic interests does not necessarily

require the conclusion that purely financial losses constitute

an injury to “property.” However, I agree with the major-

ity that it may be helpful to review legislative history to

understand whether the legislature nevertheless intended

to define “property” more broadly than the term’s common

usage suggests.3 State v. Gaines, 346 Or 160, 171-72, 206

P3d 1042 (2009).

When Senate Bill (SB) 134 (1967) was pending

before the Senate Committee on Judiciary, Senator Willner

moved that the committee counsel prepare an amendment

to describe all malpractice situations and not just the cer-

tain kinds defined in the bill, which at that point contained

only the provision regarding medical malpractice that was

later enacted as ORS 12.110(4). Minutes, Senate Committee

on Judiciary, Mar 14, 1967, 3. Chairman Mahoney ruled the

3

In our prior cases, we have cited our decision in Josephs v. Burns, 260 Or

493, 491 P2d 203 (1971), abrogated on other grounds by Smothers v. Gresham

Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), as authoritative on the question of

the legislative history of ORS 12.115. However, in that case, there was no ques-

tion that there was negligent injury to real and personal property. There, the

roof of a building owned or leased by plaintiffs collapsed 17 years after the archi-

tects and engineers had provided the professional services that were alleged

to have been negligent. Plaintiffs brought an action for damages to “real and

personal property.” The question before this court was whether the professional

malpractice claims against the architects and engineers—professional malprac-

tice claims that could not have been discovered within the period of ultimate

repose but which arose out of physical injury to real and personal property—were

intended by the legislature to be included within the scope of ORS 12.115(1). This

court determined that they were. Now, we must determine whether the legisla-

tive history also supports the conclusion that such claims would be covered even

if there is no physical injury to real or personal property. Thus, the discussion of

legislative history in Josephs is of limited use here.

570 Marshall v. PricewaterhouseCoopers, LLP

motion “out of order.” Id. The bill passed out of committee

and was approved by the Senate without any amendment

covering malpractice claims other than medical malprac-

tice. See Senate Judiciary Committee Report on SB 134

(Mar 22, 1967).

In the House Committee on Judiciary, the legislators

reviewed SB 134 in conjunction with House Bill (HB) 1309

(1967), a bill that focused on defining the term “accrued”

for purposes of ORS 12.0104 generally, in response to this

court’s decision to adopt a discovery rule for medical mal-

practice claims in Berry v. Branner, 245 Or 307, 421 P2d 996

(1966).5 Committee members discussed the need for some

finality for other types of malpractice claims not covered by

SB 134, but acknowledged that different professional groups

were beginning to pursue bills for their respective indus-

tries. See Tape Recording, House Committee on Judiciary,

SB 134, Apr 19, 1967, Tape 79.

Ultimately, the House chose not to use all-

encompassing language regarding malpractice and opted

instead to add to SB 134 its HB 1309 definition of “accrued,”

with an “unless otherwise directed by law” clause. See

House Judiciary Committee Report on SB 134 (Apr 20,

1967). Legislative Counsel Donald Paillette reassured

Senator Mahoney that the House amendment to SB 134

“would not affect the basic provisions of the bill[,] since it

provides a separate test for medical malpractice cases.” See

Staff Memorandum, House Committee on Judiciary, SB

134 (1967) (memorandum from Donald Paillette concerning

amendments to SB 134).

Thus, despite concerns expressed in committee,

the actions of both the Senate and the House going into the

Conference Committee indicated only a willingness to bring

finality to medical malpractice claims and some subset of

4

At the time, ORS 12.010 (1965) provided in relevant part:

“Actions at law shall only 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.”

5

In Berry, we determined that a cause of action for medical malpractice

involving a foreign object left in the body did not “accrue” for purposes of com-

mencing the statute of limitations until the injury was discovered or, in the exer-

cise of reasonable care, should have been discovered by the patient. 245 Or at 316.

Cite as 371 Or 536 (2023) 571

other professional malpractice claims not otherwise pro-

vided for by law. In other words, the legislature was open to

tackling the malpractice issue in stages, perhaps with some

sensitivity to the industry involved, and was interested, in

the meantime, in limiting the impact of the decision in Berry

more generally.

Records of what happened in the Conference

Committee are limited to a few margin notes and a summary

report. See Conference Committee Report on Amendments

to SB 134 (May 12, 1967). The report recommended only

that the House “recede” from its amendment and that the

bill be amended to add the following text:

“(1) In no event shall any action for negligent injury to

person or property of another be commenced more than 10

years from the date of the act or omission complained of.

“(2) Nothing in this section shall be construed to

extend any period of limitation otherwise established by

law, including but not limited to the limitations established

by ORS 12.110.”

Conference Committee Report on Amendments to SB 134

(May 12, 1967).

Clearly, the legislature reviewed and considered the

scope of ORS 12.110 in the Conference Committee when it

included a reference to that statute in its final amendments

to SB 134. Yet, it chose not to track the broader ORS 12.110(1)

wording of “injury to the person or rights of another” to

modify “negligent” in SB 134. The legislature also chose

to forgo a statute of repose targeting all professional mal-

practice claims, as requested originally by Senator Willner,

such that we might be able to conclude that the legislature

intended to impose a definite cutoff on all claims against

lawyers, including claims for purely financial loss. Thus,

although the legislative history demonstrates that the legis-

lature was concerned about the lack of a definite cutoff point

for professional malpractice claims following this court’s

decision in Berry, it does not support the conclusion that the

legislature intended to cut off all such claims—particularly

claims involving purely “financial loss,” which are distinct

and separate from any “injury to person or property.” Had

the legislature intended to cut off all such claims, it would

572 Marshall v. PricewaterhouseCoopers, LLP

have used the broader wording of “injury to person or rights

of another” that already existed in ORS 12.110(1).

Instead, by using the more limited wording of

“injury to person or property,” the legislature left open the

possibility that it may have to revisit professional malprac-

tice claims, and it did so after 1967. ORS 12.135, which this

court construed in Securities-Intermountain v. Sunset Fuel,

289 Or 243, 247, 611 P2d 1158 (1980), to exclude claims for

purely financial losses, is exactly such an example. As the

Court of Appeals noted, that statute has been reviewed and

amended by the legislature multiple times since this court’s

decision in Securities-Intermountain. Marshall, 316 Or App

at 427 n 6. We should trust that the legislature will do its

part to clarify and make changes as needed.

For those reasons, I respectfully dissent.