Petition for Writ of Certiorari — Les Schwab Tire Centers of Portland, Inc., et al., Petitioners v. Scott Wilcox, Individually and as the Personal Representative of the Estate of Jenna Wilcox

APPENDIX

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APPENDIX A

FILED: August 22, 2018

IN THE COURT OF APPEALS OF THE STATE OF

OREGON

SCOTT WILCOX, individually and as the Personal

Representative of the Estate of Jenna Wilcox,

Plaintiff-Appellant,

v.

LES SCHWAB TIRE CENTERS OF OREGON,

INC., an Oregon corporation; and

TOYO TIRE HOLDINGS OF AMERICAS, INC., a

California corporation,

Defendants-Respondents.

Multnomah County Circuit Court

14CV13351

A159585

Christopher J. Marshall, Judge.

Argued and submitted on September 08, 2016.

Scott Michael Duquin, New York, argued the cause for

appellant. Also on the briefs was Hogan Willig, PLLC.

Jonathan Hoffman argued the cause for respondents.

Also on the brief were John W. Knottnerus and Martin

Bischoff Templeton Langslet & Hoffman, LLP.

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Before Armstrong, Presiding Judge, and Tookey,

Judge, and Shorr, Judge.

ARMSTRONG, P. J.

Reversed and remanded.

DESIGNATION OF PREVAILING PARTY AND

AWARD OF COSTS

Prevailing party:

Appellant

[ ] No costs allowed.

[X] Costs allowed, payable by Respondents.

[ ] Costs allowed, to abide the outcome on remand,

payable by

ARMSTRONG, P. J.

Plaintiff appeals a judgment dismissing as untimely the wrongful-death action that he brought in

his capacity as personal representative of his wife’s

estate. Plaintiff and his wife were serving in the

United States Air Force at the time of plaintiff’s wife’s

death in April 2010. Plaintiff remained on active duty

with the Air Force until September 30, 2011. After being appointed the personal representative of his wife’s

estate, plaintiff initiated this action on September 17,

2014. Plaintiff contends that the trial court erred in

granting defendants’ ORCP 21 motion to dismiss

plaintiff’s action as untimely because, under the federal Servicemembers Civil Relief Act (SCRA), 50 USC

sections 3901 to 4043, the state statute of limitation

for the wrongful-death action was tolled during the

time that plaintiff was on active duty with the Air

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Force, such that the action was timely filed. Defendants respond that the SCRA did not toll the statute of

limitation and, hence, that the trial court did not err

in dismissing plaintiff’s action as untimely. Because

we conclude that the SCRA did toll the limitation period in this case, we reverse and remand.

In reviewing the trial court’s order granting defendants’ ORCP 21 motion to dismiss, “we assume the

truth of well-pleaded factual allegations in plaintiff’s

complaint.” Cannon v. Dept. of Justice, 261 Or App

680, 682, 322 P3d 601 (2014). Plaintiff purchased a set

of Toyo tires from defendant Les Schwab Tire Centers

in Portland in 2004 for his twoseat BMW Z3. In late

March 2010, plaintiff and his wife were on active duty

with the United States Air Force. They were on leave

in the United Kingdom and were driving the BMW

near the Scottish border. Plaintiff noticed that the car

was making an unusual vibration and stopped to

check the tires. After receiving the advice of a mechanic, plaintiff replaced the tire that had been causing the vibration with the spare tire. Instead of leaving on the side of the road the tire that plaintiff had

replaced, plaintiff’s wife placed the tire on her lap

while the couple drove in search of a mechanic. The

tire exploded while plaintiff’s wife held it on her lap,

causing her severe injuries that ultimately led to her

death on April 1, 2010.

Plaintiff remained on active duty with the Air

Force until September 30, 2011. After his discharge

from the Air Force, plaintiff was appointed by a Colorado court as the personal representative of his wife’s

estate. Plaintiff filed this wrongful death action on

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September 17, 2014, asserting claims for products liability and negligence.1 Defendants moved under

ORCP 21 to dismiss the action as untimely, contending that the applicable statute of limitation for the

claims is three years, see ORS 30.020(1), ORS

30.905(4), and that more than three years had elapsed

between plaintiff’s wife’s death and the filing of the

action. Plaintiff responded that the SCRA had tolled

the period of time for him to bring the claims. He contended that, excluding the time that he had been on

active duty in the Air Force, he had filed his action

within the three-year limitation period. The trial

court disagreed with plaintiff’s construction of the

SCRA as applied to plaintiff’s action and dismissed

the action on the ground that plaintiff had not timely

filed it.

Plaintiff appeals the judgment, reprising the arguments that he made below. Defendants respond

that the statute of limitation was not tolled during

plaintiff’s time on active duty because the SCRA does

not toll a statute of limitation for an action that is

brought by a servicemember acting in his capacity as

a personal representative. Alternatively, defendants

contend that the SCRA did not toll the statute of limitation under Oregon’s wrongful-death statute because the authority to bring a wrongful-death action

depends on whether the decedent could have brought

an action against defendants had the decedent sur-

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Plaintiff filed the action both in his individual capacity and

as the personal representative of his wife’s estate. However,

plaintiff alleged only wrongful-death claims under Oregon law

and did not allege any claims of his own.

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vived, making the decedent, and not plaintiff, the person whose claims are subject to tolling under the

SCRA. We begin by analyzing the SCRA.

The applicable section of the SCRA, 50 USC section 3936, provides, in part:

“(a) Tolling of statutes of limitation during

military service

“The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the

bringing of any action or proceeding in a court,

or in any board, bureau, commission, department, or other agency of a State (or political

subdivision of a State) or the United States by

or against the servicemember or the servicemember’s heirs, executors, administrators, or

assigns.”

Additionally, the enacted purposes of the SCRA are

“(1) to provide for, strengthen, and expedite

the national defense through protection extended by this chapter to servicemembers of

the United States to enable such persons to

devote their entire energy to the defense

needs of the Nation; and

“(2) to provide for the temporary suspension of

judicial and administrative proceedings and

transactions that may adversely affect the

civil rights of servicemembers during their

military service.”

50 USC § 3902. The United States Supreme Court has

noted that the SCRA (formerly the Soldiers’ and Sail-

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ors’ Civil Relief Act) “is always to be liberally construed to protect those who have been obliged to drop

their own affairs to take up the burdens of the nation.”

Boone v. Lightner, 319 US 561, 575, 63 S Ct 1223, 87

L Ed 1587 (1943).

We begin our analysis with the text of 50 USC section 3936(a), which is expansive. It excludes military

service time from a statute-of-limitation calculation

for the “bringing of any action or proceeding in a

court” by a servicemember. That language does not

distinguish between actions brought by a servicemember in a personal capacity and those brought in a representative capacity. Thus, based on the text alone,

the SCRA does apply to an action brought by a servicemember in a representative capacity. What is

more, the enacted purposes of the SCRA are to provide

for the national defense by postponing the time limit

for servicemembers to pursue and defend claims—

thereby enabling servicemembers “to devote their entire energy to the defense needs of the Nation”—and

“to provide for the temporary suspension of judicial *

* * proceedings * * * that may adversely affect the civil

rights of servicemembers during their military service.” 50 USC § 3902(1) (emphasis added). Given those

purposes and the broad language of the act, we conclude that the SCRA’s text supports plaintiff’s construction of the SCRA--viz., that the act tolls the statute of limitation for plaintiff, based on plaintiff’s military service, to bring an action in his capacity as the

personal representative of his wife’s estate.

Defendants argue, however, that the SCRA

should not be understood to reach so far. Defendants

point out that under Colorado law—the law under

which plaintiff was appointed personal representative

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of his wife’s estate—anyone can be appointed personal

representative of an estate; the personal representative need not be an heir of the decedent. See Colo Rev

Stat § 15-12-601. Defendants reason that Congress

did not intend to toll the statute of limitation in a case

such as this one, because it is only fortuitous that

plaintiff, who is plaintiff’s wife’s next of kin and heir,

was appointed to be personal representative of her estate. Defendants contend that Congress could not

have intended the SCRA to toll statutes of limitation

under those circumstances because it would allow

people to circumvent statutes of limitation merely by

selecting servicemembers as personal representatives

of estates. Defendants also argue that state cases that

have adopted a broad reading of the SCRA’s tolling

provision to apply to claims brought by a personal representative who is a servicemember are cases in which

servicemembers brought their own claims, together

with claims brought in a representative capacity,

which is a circumstance that is not present here.

We recognize the concerns raised by defendants,

which have led some courts to reject a construction of

the SCRA that would toll statutes of limitation in actions brought by servicemembers acting as personal

representatives of estates. As one court reasoned:

“It seems to us that it was not the intention of

the [SCRA] to hold up administration [of a decedent’s estate] until one of many eligible persons might administer [the estate]; or, if such

a person has administered and brought suit in

his official capacity, that it should be regarded

as a suit brought by the sailor or soldier designated in the [SCRA] in his individual right,

merely because of his interest in a contingent

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recovery of damages in a suit brought in behalf of decedent’s estate, however it might be

if the distribution, in case of recovery, was in

dispute.”

McCoy v. Atl. Coast Line R. Co., 229 NC 57, 60-61, 47

SE2d 532 (1948).

Nonetheless, we are persuaded that the SCRA did

toll the statute of limitation for plaintiff’s wrongfuldeath action for the period in which plaintiff was on

active duty with the Air Force. As noted, the text of

the SCRA does not distinguish between actions

brought by servicemembers in an individual capacity

and those brought in a representative capacity. Further, the purposes that Congress identified in the

SCRA for its enactment are to provide for the temporary suspension of judicial proceedings that could affect the civil rights of servicemembers, thereby allowing them to devote their full efforts to the nation’s defense. Where, as here, plaintiff is a servicemember

who allegedly is the sole heir of the decedent and is

the person whose right to recover damages for the decedent’s death is the subject of the wrongful-death action, applying the SCRA to the action serves the congressionally identified policies by suspending for the

time that plaintiff was on active duty the time limit

for him to bring the action that would affect his civil

rights, thereby allowing him to devote his full efforts

to the nation’s defense while he was on duty. Construing the SCRA not to apply in those circumstances

would contradict those policies, because it could require servicemembers such as plaintiff to bring such

actions while they were on active duty, thereby diverting their efforts from the nation’s defense to do that.

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We acknowledge that our construction of the

SCRA might encourage some people to attempt to circumvent statutes of limitation under circumstances

that would not serve the policies that Congress enacted the SCRA to serve, for example, by appointing

as personal representative for a decedent’s estate a

servicemember who has no connection to the decedent

to pursue claims that do not affect the servicemember’s rights. To the extent that the SCRA is subject to

manipulation in that way, which is a question that we

need not resolve, it is Congress that must address the

problem, not us. See, e.g., National Ass’n of Mfrs. v.

Department of Defense, ___ US ___, 138 S Ct 617, 629,

199 L Ed 2d 501 (2018) (“[O]ur constitutional structure does not permit this Court to rewrite the statute

that Congress has enacted.” (Brackets in original.)).

We turn to defendants’ alternative argument, viz.,

that Oregon’s wrongful death statute functions in

such a way as to make the SCRA’s tolling provision

inapplicable to plaintiff’s claims because the rights asserted by plaintiff are derivative of the decedent’s

rights, making the decedent, and not plaintiff, the person whose claims are subject to tolling under the

SCRA. We begin with the wrongful-death statute.

ORS 30.020(1) provides, as relevant:

“When the death of a person is caused by the

wrongful act or omission of another, the personal representative, of the decedent, for the

benefit of the decedent’s surviving spouse,

surviving children, surviving parents and

other individuals, if any, who under the law of

intestate succession of the state of the decedent’s domicile would be entitled to inherit the

personal property of the decedent, and for the

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benefit of any stepchild or stepparent whether

that stepchild or stepparent would be entitled

to inherit the personal property of the decedent or not, may maintain an action against

the wrongdoer, if the decedent might have

maintained an action, had the decedent lived,

against the wrongdoer for an injury done by

the same act or omission. The action shall be

commenced within three years after the injury

causing the death of the decedent is discovered

or reasonably should have been discovered by

the decedent, by the personal representative or

by a person for whose benefit the action may be

brought under this section if that person is not

the wrongdoer.”

(Emphasis added.)

Defendants rely on a number of Oregon cases that

have held that the rights asserted by a personal representative in a wrongful-death action are derivative

of the decedent’s rights. See, e.g., Storm v. McClung,

334 Or 210, 223, 47 P3d 476 (2002) (“[T]he wrongful

death statute places a decedent’s personal representative in the decedent’s shoes, imputing to the personal

representative whatever rights, and limitations to

those rights, that the decedent possessed.”). Defendants reason that, because the rights asserted by a personal representative under the Oregon wrongfuldeath statute are derivative of the decedent’s rights,

it follows that the claims alleged by plaintiff in this

action must be considered to be the decedent’s claims,

and not plaintiff’s, making the tolling principle in the

SCRA, which tolls the limitation period for claims

brought by plaintiff, inapplicable.

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We are not persuaded. That the rights asserted by

plaintiff in this action are derivative of the decedent’s

rights in that plaintiff’s ability to prevail on his claims

in the action depends on whether the decedent could

have maintained an action against defendants for her

injuries had she survived—does not mean that, for

purposes of the SCRA, the claims asserted by plaintiff

are claims that have not been brought by him, particularly when the claims that he brought are for his benefit.

Moreover, as quoted above, Oregon’s wrongfuldeath statute provides that the three-year limitation

period to bring a wrongful-death action begins to run

when the decedent, the personal representative, or a

person for whose benefit the action may be brought

has discovered or reasonably should have discovered

the injury that caused the decedent’s death. Here,

plaintiff comes within the last two categories of people

whose knowledge of the injuries that caused the decedent’s death will determine the limitation period that

applies to plaintiff’s wrongful-death claims. Making

plaintiff’s knowledge of the decedent’s injuries a basis

for the statute of limitation to begin running reflects

the interest that he has in the action and imposes on

plaintiff an obligation to bring the action within the

three-year time limit imposed by the statute. In that

light, it would be particularly incongruous, and inconsistent with the policies identified in the SCRA, for us

to hold that the SCRA did not toll the limitation period

for plaintiff to bring his wrongful-death action.

In sum, because the SCRA tolled the Oregon statute of limitation for plaintiff’s wrongful-death action

for the period that plaintiff was serving in the Air

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Force, the trial court erred by dismissing plaintiff’s action as untimely.

Reversed and remanded.

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APPENDIX B

IN THE CIRCUIT COURT OF THE STATE OF

OREGON

FOR THE COUNTY OF MULTNOMAH

SCOTT WILCOX,

individually and as the

Personal Representative of

the Estate of Jenna Wilcox,

Case No.

14CV13351

[PROPOSED]

ORDER RE DEPlaintiff,

FENDANTS’ MOv.

TION TO DISMISS PLAINLES SCHWAB TIRE

TIFF’S COMCENTERS OF OREGON,

INC., an Oregon corporation; PLAINT AND DEFENDANTS’ MOand TOYO TIRE

HOLDINGS OF AMERICAS, TION TO STRIKE

PLAINTIFF’S AFINC., a California

FIDAVIT

corporation,

Defendants.

Defendants’ Motion to Dismiss Plaintiff’s Complaint and Defendants’ Motion to Strike Plaintiff’s Affidavit, having come before this court for hearing on

March 17, 2015; Plaintiff appearing by and through

his counsel, Blake V. Robinson and Scott M. Duquin;

Defendants appearing by and through their counsel,

Bruce C. Hamlin and Alice S. Newlin; the court having reviewed the records on file and hearing oral argument; therefore, it is hereby

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ORDERED AND ADJUDGED that Defendants’

Motion to Dismiss Plaintiff’s Complaint is granted

with prejudice; and it is hereby further

ORDERED AND ADJUDGED that Defendants’

Motion to Strike Plaintiff’s Affidavit is denied.

DATED: Signed: 4/17/2015 04:44 PM.

_/s/ Christopher Marshall______

Christopher Marshall

Circuit Court Judge

Presented by:

s/Bruce C. Hamlin

Bruce C. Hamlin, OSB #792542

E-mail: bhamlin@martinbischoff.com

888 SW Fifth Avenue., Ste. 900

Portland, OR 97204

Telephone: (503) 224-3113

Fax: (503) 224-9471

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on March 17, 2015, I served

the foregoing [PROPOSED] ORDER RE DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S

COMPLAINT AND DEFENDANTS’ MOTION TO

STRIKE PLAINTIFF’S AFFIDAVIT on the following attorneys:

Blake V. Robinson

Law Office of Blake V. Robinson, LLC

12901 SE 97th Ave., Suite 330

Clackamas, OR 97015

E-mail: blake@brobinsonlaw.com

Scott M. Duquin

Hogan Willig

2410 N. Forest Road, Suite 301

Amherst, NY 14068

E-mail: sduquin@hoganwillig.com

Admitted pro hac vice

Attorneys for Plaintiff

by causing true copies thereof, addressed to each attorney’s last known address, and sent by the following

indicated method or methods:











by U.S. Mail, first-class postage prepaid, from Portland, Oregon.

by hand delivery.

by overnight courier.

by electronic mail.

by facsimile.

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MARTIN, BISCHOFF, TEMPLETON, LANGSLET & HOFFMAN,

LLP

By: s/Bruce C. Hamlin

John W. Knottnerus, OSB

#892788

E-mail: jknottnerus@martinbischoff.com

Bruce C. Hamlin, OSB #792542

E-mail: bhamlin@martinbischoff

.com

Attorneys for Defendants

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APPENDIX C

IN THE SUPREME COURT OF THE STATE OF

OREGON

SCOTT WILCOX, individually and as the Personal

Representative of the Estate of

Jenna Wilcox,

Plaintiff-Appellant,

Respondent on Review,

v.

LES SCHWAB TIRE CENTERS OF OREGON, INC.,

an Oregon corporation; and

TOYO TIRE HOLDINGS OF AMERICAS, INC., a

California corporation,

Defendants-Respondents,

Petitioners on Review.

Court of Appeals

A159585

S066218

ORDER DENYING REVIEW

Upon consideration by the court.

The court has considered the petition for review and

orders that it be denied.

/s/ Martha L. Walters

MARTHA L. WALTERS

CHIEF JUSTICE, SUPREME COURT

1/17/2019 11:23 AM

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c:

jr

John W Knottnerus

Jonathan M Hoffman

Blake V Robinson

Scott Michael Duquin

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APPENDIX D

STATUTORY PROVISIONS INVOLVED

50 U.S.C. § 3902. Purpose

The purposes of this chapter are—

(1) to provide for, strengthen, and expedite the

national defense through protection extended by

this chapter to servicemembers of the United

States to enable such persons to devote their entire energy to the defense needs of the Nation; and

(2) to provide for the temporary suspension of

judicial and administrative proceedings and

transactions that may adversely affect the civil

rights of servicemembers during their military

service.

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50 U.S.C. § 3911. Definitions

For the purposes of this chapter:

(1) Servicemember

The term ‘‘servicemember’’ means a member

of the uniformed services, as that term is defined

in section 101(a)(5) of title 10.

(2) Military service

The term ‘‘military service’’ means—

(A) in the case of a servicemember who is a member of the Army, Navy, Air Force, Marine Corps,

or Coast Guard—

(i) active duty, as defined in section

101(d)(1) of title 10, and

(ii) in the case of a member of the National

Guard, includes service under a call to active

service authorized by the President or the Secretary of Defense for a period of more than 30

consecutive days under section 502(f) of title

32 for purposes of responding to a national

emergency declared by the President and supported by Federal funds;

(B) in the case of a servicemember who is a

commissioned officer of the Public Health Service

or the National Oceanic and Atmospheric Administration, active service; and

(C) any period during which a servicemember

is absent from duty on account of sickness,

wounds, leave, or other lawful cause.

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(3) Period of military service

The term ‘‘period of military service’’ means the

period beginning on the date on which a servicemember enters military service and ending on the date on

which the servicemember is released from military

service or dies while in military service.

(4) Dependent

The term ‘‘dependent’’, with respect to a servicemember, means—

(A) the servicemember’s spouse;

(B) the servicemember’s child (as defined in

section 101(4) of title 38); or

(C) an individual for whom the servicemember

provided more than one-half of the individual’s

support for 180 days immediately preceding an

application for relief under this chapter.

(5) Court

The term ‘‘court’’ means a court or an administrative agency of the United States or of any State (including any political subdivision of a State), whether

or not a court or administrative agency of record.

(6) State

The term ‘‘State’’ includes—

(A) a commonwealth, territory, or possession

of the United States; and

(B) the District of Columbia.

(7) Secretary concerned

The term ‘‘Secretary concerned’’—

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(A) with respect to a member of the armed

forces, has the meaning given that term in section

101(a)(9) of title 10;

(B) with respect to a commissioned officer of

the Public Health Service, means the Secretary of

Health and Human Services; and

(C) with respect to a commissioned officer of

the National Oceanic and Atmospheric Administration, means the Secretary of Commerce.

(8) Motor vehicle

The term ‘‘motor vehicle’’ has the meaning given

that term in section 30102(a)(6) of title 49.

(9) Judgment

The term ‘‘judgment’’ means any judgment, decree, order, or ruling, final or temporary.

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50 U.S.C. § 3936. Statute of limitations

(a) Tolling of statutes of limitation during military service

The period of a servicemember’s military service

may not be included in computing any period limited

by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau,

commission, department, or other agency of a State

(or political subdivision of a State) or the United

States by or against the servicemember or the servicemember’s heirs, executors, administrators, or assigns.

(b) Redemption of real property

A period of military service may not be included in

computing any period provided by law for the redemption of real property sold or forfeited to enforce an obligation, tax, or assessment.

(c) Inapplicability to internal revenue laws

This section does not apply to any period of limitation prescribed by or under the internal revenue

laws of the United States.