Whipple v. Howser , 51 Or. App. 85 ( 1981 )

THORNTON, J.

This appeal requires us to determine the effect to be given the 1979 Oregon Legislature’s amendment of ORS 30.115,¹ the guest passenger statute, removing actions based upon motor vehicle accidents from the statute’s recovery limitations.² The issue is whether the legislature intended the amendment to apply to an action commenced after October 3, 1979, the amendment’s effective date, when the accident upon which the action is based occurred prior to that date. Resolution of this issue depends upon the legislature’s intended interpretation of the amendment’s "savings clause,” which reads:

"Section 8. This Act does not apply to an action or other proceeding commenced before the effective date of this Act.”

The question in this case arises as follows: On October 21, 1978, plaintiff was a passenger in a vehicle driven by Monique Behrendt which was involved in a collision with a vehicle owned by one defendant and operated by the other. On February 27,1980, plaintiff filed an action seeking damages from defendants for personal injuries she allegedly suffered due to their negligence. On April 7, 1980, defendants filed an answer to plaintiff’s complaint and, pursuant to ORCP 22C,³ a third party action against Monique Behrendt. As third party plaintiffs, they alleged that third party defendant Behrendt’s negligence proximately contributed to and caused plaintiffs injuries. They further alleged that if a judgment was returned against them, they were entitled to contribution⁴ from third party defendant.

Pursuant to ORCP 21A,⁵ third party defendant moved to dismiss that complaint. Specifically, she argued that at the time of the accident, ORS 30.115 barred any recovery by plaintiff and, therefore, third party plaintiffs, absent either an allegation in the third party complaint of her gross negligence or that plaintiff was a "paying” passenger in her vehicle at the time of the accident. Since the third party plaintiffs’ complaint contained neither allegation, third party defendant argued that it failed to state a cause of action.

The trial court agreed. Relying on Smith v. Clackamas County, 252 Or 230, 448 P2d 512 (1968), the court ruled that the 1979 amendment to ORS 30.115 did not apply to the third party action and that under the statute’s former provisions, the third party complaint failed to state a cause of action. Based on this ruling, the trial court dismissed the third party action and entered an appropriate final judgment. Third party plaintiffs appeal and assign as error the trial court’s dismissal of their third party complaint.

A generally recognized fundamental principle of jurisprudence is that retroactive application of new laws is disfavored. The principle is based upon the premise that such application involves a high risk of potential unfairness.

"* * * Perhaps the most fundamental reason why retroactive legislation is suspect stems from the principle that a person should be able to plan his conduct with reasonable certainty of the legal consequences. Thus The Federalist stressed the desirability of protecting the people from the 'fluctuating policy’ of the legislature. Closely allied to this factor is man’s desire for stability with respect to past transactions. Moreover, to the extent that statutory law should serve as a guide to individual conduct, this purpose is thwarted by retroactive enactments. Still another reason underlying the hostility to retroactive legislation is that such a statute may be passed with an exact knowledge of who will benefit from it. Finally, there is the strong common-law tradition that although a court’s pronouncements may apply to past conduct, a legislature’s function is to declare law for the future.” (Footnotes omitted.) Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv L Rev 692, 692-93 (1960).

As a general rule of statutory construction, therefore, a legislative enactment is presumed to apply only prospectively and will be construed as applying retroactively only where the enactment clearly, by express language or necessary implication, indicates that the legislature intended such a result. 2 Sutherland, Statutory Construction § 41.04 at 252 (4th ed 1973). The courts of this state have long adhered to this general rule. See Judkins v. Taffe, 21 Or 89, 27 P 221 (1891); Pitman v. Bump, 5 Or 17, (1873); and Coos-Curry Elec. v. Curry County, 26 Or App 645, 554 P2d 601 (1976).

We agree with the trial judge that the 1979 amendment to ORS 30.115 did not apply to the third party action. This case is governed by the familiar and well- settled rule of statutory construction referred to above and applied in Smith v. Clackamas County, supra, namely, that where an amendment to a statute changes substantive rights, the amendment should not be applied retroactively where its language does not require such application.

In Smith, the court was asked to determine whether a statute, changing the basis of recovery from strict liability to liability based on negligence, was to be applied retroactively to a claim based on an accident which had occurred prior to the effective date of the statute, but not filed prior to that date. The legislature had said:

"This Act shall not affect any action, suit or proceeding commenced prior to and pending on the effective date of this Act.” Or Laws 1965, ch 300, § 3.

In the case at bar, the legislature used the following language:

"This Act does not apply to an action, suit or other proceeding commenced before the effective date of this Act.” Or Laws 1979, ch 866, § 8.

The dissent tries to distinguish the holding in Smith from the case at bar. We cannot. In our view, the holding in Smith is controlling here. Accord: Wiebe v. Seely, Administrator, 215 Or 331, 335 P2d 379 (1959); Joseph v. Lowry, 261 Or 545, 495 P2d 273 (1972). See also cases collected in Annotation, 98 ALR2d 1105, 1110-1112 ((1964).

Affirmed.

1 At the time of the accident upon which plaintiff based her action in this case, ORS 30.115 provided, in pertinent part:

"No person transported by the owner or operator of a motor vehicle, an aircraft, a watercraft, or other means of conveyance, as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. * *

"*****".

2 As amended by Or Laws 1979, ch 866, § 7, ORS 30.115 presently provides:

"No person transported by the owner or operator of an aircraft or a watercraft as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. As used in this section:

"(1) 'Payment’ means a substantial benefit in a material or business sense conferred upon the owner or operator of the conveyance and which is a substantial motivating factor for the transportation, and it does not include a mere gratuity of social amenity.

"(2) 'Gross negligence’ refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.

3 ORCP 22C, in pertinent part, provides:

"C. (1) At any time after commencement of the action, a defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third party plaintiff for all or part of the plaintiffs claim against the third party plaintiff. * * *”

4 ORS 18.440(1) provides:

"Except as otherwise provided in this section, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. There is no right of contribution from a person who is not liable in tort to the claimant.”

5 ORCP 21A provides, in pertinent part:

"Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim, or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss: * * * (8) failure to state ultimate facts sufficient to constitute a claim * *