Flores-Haro et al v. Slade et al
Filing
449
OPINION AND ORDER: This matter comes before me on several post-trial motions: Defendants' Motions to Alter or Amend Judgment [406,412], the City of Hillsboro's Motion to Apply OTCA Damages Cap 366 , and Washington County's Motion fo r Election of Remedies, Remittitur, and to Reduce the Award Consistant with OTCA Limits 368 . For the reasons below, and in conjunction with my October 11, 2018, Opinion and Order 447 , these motions are GRANTED in part and DENIED in part... Signed on 1/1/2019 by Judge Michael W. Mosman. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ADALBERTO FLORES-HARO et al.,
Case No. 3:12-cv-01616-MO
Plaintiffs,
OPINION AND ORDER
V.
STEPHEN SLADE et al.,
Defendants.
MOSMAN,J.,
This matter comes before me on several post-trial motions: Defendants' Motions to Alter
or Amend Judgment [406,412], the City of Hillsboro's Motion to Apply OTCA Damages Cap
[366], and Washington County's Motion for Election of Remedies, Remittitur, and to Reduce the
Award Consistant with OTCA Limits [368]. For the reasons below, and in conjunction with my
October 11, 2018, Opinion and Order [447], these motions are GRANTED in part and DENIED
in part.
BACKGROUND
In my October 11, 2018, Opinion and Order, I required Plaintiffs to either accept
remittitur reducing economic damages to the amount proven at trial or retry the issue of
damages. In addition, because I found that the jury had impermissibly awarded damages for two
harms when Plaintiffs had only proven one harm, I required Plaintiffs to elect recovery on only
1 - OPINION AND ORDER
one of the remedies. Plaintiffs accepted remittitur and elected to recover on the jury's award for
Defendants' battery.
The remaining issues in this case are whether and how the provisions of the Oregon Tort
Claims Act (OTCA), should further limit Plaintiffs' recovery. For the reasons stated below, I
find that the OTCA applies to the claims in this case and limits Plaintiffs' recovery to
$1,133,400.
STANDARD OF REVIEW
Under Erie Railroad Co. v. Tompkins, a federal court sitting in diversity jurisdiction must
apply state substantive law. Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415 (1996). The
same choice of law principles required by Erie must also be applied by a court exercising
supplemental jurisdiction over state law claims. See In re Exxon Valdez, 484 F.3d 1098, 1100
(9th Cir. 2007). Because the claims remaining in this case are state law claims, I must follow the
decisions of the Oregon Supreme Court that address whether the OTCA violates the Oregon
Constitution's remedy clause. See Comm 'r ofInternal Revenue v. Bosch, 387 U.S. 456, 465
(1967).
DISCUSSION
As an initial matter, Plaintiffs have not disputed the applicability of the OTCA to the
types of claims they presented. Rather, they dispute the constitutionality of the OTCA as applied
to this case. I first address Plaintiffs' constitutional arguments and then address the parties'
arguments regarding how the OTCA applies to the facts of this case.
A. The Oregon Constitution's Remedy Clause and "Substantiality"
Plaintiffs' first argument against limiting the jury's award in accordance with the OTCA
is that application of the OTCA's limits would violate the Oregon's Constitution's remedy
2 - OPINION AND ORDER
clause. The remedy clause ensures that "every man shall have remedy by due course of law for
injury done him in his person, property, or reputation." Or. Const. art. I,§ 10. The Oregon
Supreme Court has stated that the remedy clause "limits the legislature's substantive authority to
alter or adjust a person's remedy for injuries to person, property, and reputation." Horton v. Or.
Health Sci. Univ., 376 P.3d 998, 1002 (Or. 2016).
The Oregon Supreme Court has decided that the legislature may limit the size of a
damages award, but the "substantiality of the legislative remedy can matter in determining
whether the remedy is consistent with the remedy clause." Horton, 376 P.3d at 1028. While the
size of the OTCA limit relative to a jury's original award is important, whether a remedy is
"substantial" also depends on the existence of other factors, such the legislature's rationale in
limiting damages. Id. at 1027. Given these considerations, the Oregon Supreme Court decided
in Horton that OTCA limits on the damages available from a state employee did not violate the
Oregon Constitution's remedy clause. Id. at 1030. But the court limited its holding in Horton to
the facts of that case. Id. The court stated that the significant factors in the case were the state's
interest in sovereign immunity, the legislative rationale motivating the tradeoffs in OTCA's
scheme, and the ratio of OTCA limit to the original jury award. Id.
1.
Sovereign Immunity and the OTCA' s Quid Pro Quo
Although state employees were never protected by the state's sovereign immunity, the
comi in Horton decided that the substantiality of an award should be assessed in light of the fact
that the OTCA "extended the assurance of benefits to some while limiting the benefit to others."
Id. at 1027. This quid pro quo in Horton was achieved by limiting the damages available in suits
against state employees but allowing plaintiffs to sue the state. Id. at 1028-30. If not for the
OTCA, the state would be exempt from suit under the doctrine of sovereign immunity. Id.
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As a "state instrumentality," Washington County is entitled to "partake fully of the state's
immunity from suit." Hale v. Port of Portland, 783 P.2d 506,511 (Or. 1989) abrogated by
Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (2001), reaffirmed by Horton, 376 P.3d at
1027. Therefore, Horton's analysis of the interest in sovereign immunity and the legislative
rationale in establishing a quid pro quo based on state sovereign immunity applies equally to
Washington County in this case. If the award in this case is "substantial" under the third central
factor in Horton-the ratio of the OTCA limit to the jmy' s award-then application of the
OTCA limit in this case does not offend the remedy clause, at least with respect to Washington
County. The City of Hillsboro, however, falls outside the ambit of Horton's nanow holding.
The City of Hillsboro does not have the same interest in sovereign immunity, which was a
central feature of the comi's decision in Horton. 376 P.3d at 1030.
Although the City of Hillsboro has not exchanged sovereign immunity for a limit on tort
claims, the Oregon Supreme Court has held that the OTCA's limits on municipal liability enact a
similar quid pro quo. Hale, 783 P.2d at 515. While Horton focused on the state's waiver of
sovereign immunity, Hale evaluated the OTCA in light of the elimination of immunity for
governmental acts. At common law, municipal corporations could be sued for acts that were
considered "proprietary." Hale, 783 P.2d at 512. Municipalities enjoyed immunity from suit
only for "governmental" acts. Id. But the OTCA did not adopt this distinction; although
damages are limited, municipal corporations are liable for to1is that arise out of both proprietary
and governmental functions. Id. Eliminating the need to distinguish between governmental and
proprietary functions conveyed a benefit that was counterbalanced by limiting the size of the
award that could be recovered. Id. In Hale, the Oregon Supreme Comi determined that this quid
4 - OPINION AND ORDER
pro quo did not offend the remedy clause of the Oregon Constitution. Id. at 515. As a result, the
court found that the OTCA's limits could be applied to an award against City of Portland. Id.
For claims against the City of Hillsboro, the OTCA enacts the same quid pro quo that
was evaluated in Hale. In both cases, the OTCA limits recovery but allows plaintiffs to bring
suit without distinguishing between governmental and proprietary functions. And the
elimination of the governmental-proprietary distinction in the OTCA provides Plaintiffs in this
case with a significant benefit. The battery against Plaintiff Adalbe1io Flores-Haro occmTed
during a police operation, which is usually considered to be a governmental function. See, e.g.,
Noonan v. City of Portland, 88 P.2d 808, 812 (Or. 1939), abrogated by Smothers v. Gresham
Transfer, Inc., 23 P.3d 333 (2001), reaffirmed by Horton, 376 P.3d at 1027. Under the OTCA,
Plaintiffs do not need to show that the battery resulted from a proprietary function. Following
the authority of Hale, application of the OTCA to the City of Hillsboro does not violate the
Oregon Constitution's remedy clause so long as the award satisfies the third element in Horton.
11.
Quantitative Substantiality
The Oregon Supreme Comi has decided several cases that provide useful guideposts for
evaluating whether an award limited by the OTCA is quantitatively "substantial." In Horton, the
court upheld a limitation of the plaintiffs recovery to 25% of the jury's award. Although the
jury's award was $12,000,000, the comi found that a $3,000,000 limit was not insubstantial "in
light of the overall statutory scheme, which extends an assurance of benefits to some while
limiting benefits to others." Horton, 376 P.3d at 1030. In Hale, the court concluded that a
$100,000 limit on a $600,000 jury award, a 17% ratio, was a substantial remedy. Finally, in
Howell v. Boyle, 298 P.3d 1 (Or. 2013), the Oregon Supreme Court decided that a $200,000
OTCA limit was a substantial recovery when the jury awarded $507,500 in damages, a 39%
5 - OPINION AND ORDER
ratio. The court also decided in Howell that a remedy need not even wholly compensate a
plaintiff for his irtjury in order to be considered substantial. Id. at 11.
In only one case has the Oregon Supreme Court decided that an award limited by the
OTCA was insubstantial. See id. at 10. In Clarke v. Oregon Health Sciences University, the
court concluded that the OTCA's $200,000 limit was insubstantial in comparison the jury's
award of $12,000,000 in economic damages and $17,000,000 in total damages, a 1% ratio. 175
P.3d 418,434 (Or. 2007).
Plaintiffs cite two cases decided after Horton in which Oregon courts have decided that
limits on jury awards did not provide plaintiffs with substantial remedies: Vasquez v. Double
Press Manufacturing, Inc., 406 P.3d 225 (Or. Ct. App. 2017) and Rains v. Stayton Builders Mart,
Inc., 410 P.3d 336 (Or. Ct. App. 2018). These cases do not offer useful comparisons. Unlike the
present case, Vasquez and Rains did not involve government entities or the OTCA. The court in
Vaquez made the importance of this distinction clear: "Horton, Howell, and Hale-all cases
applying damages caps in the [OTCA]-are distinguishable because those cases explicitly took
into consideration in their substantiality discussions the quid pro quo and constitutional
implications of the waiver of sovereign immunity that is a part of the [OTCA]." 406 P.3d at 236.
111.
Conclusion
For the reasons stated above, I find that the OTCA can be applied to the jury's award in
this case without offending the remedy clause of the Oregon Constitution. The ratio between the
OTCA limit and the jury's award must, however, fall within the range of values that the Oregon
Supreme Court has determined to be "significant" recoveries in Horton, Hale, and Howell. The
applicable limit and comparison of the limit to the jury's award are addressed below.
6 - OPINION AND ORDER
B. The Oregon Constitution's Right to Jury Trial and Separation of Powers
Plaintiffs offered two additional arguments regarding the constitutionality of applying the
OTCA to this case. First, Plaintiffs argued that the OTCA limits violate the Oregon
Constitution's guarantee that "no fact tried by a jury shall be otherwise reexamined in any court
of this state, unless the court can affirmatively say there is no evidence to support the verdict."
Or. Const. mi. VII,§ 3. The Oregon Supreme Comi decided this issue in Horton, finding that
applying the OTCA's limits did not entail judicial reexamination of facts found by a jury. 376
P.3d 1046. Instead, the OTCA requires a comi to apply a legal limit to the facts that are found
by a jury, a function that does not violate Oregon's constitution. Id. Plaintiffs' argument that the
majority in Horton was incorrect is unavailing, as I am required to follow state law as announced
by the state's highest court. Comm 'r ofInternal Revenue v. Bosch, 387 U.S. 456, 465 (1967).
Therefore, I find that applying the OTCA's limits to the jury's award does not violate article VII,
section 3 of the Oregon Constitution.
Plaintiffs also argue that the OTCA violates article III, section 1 of the Oregon
Constitution, which mandates the separation of powers between the branches of state
government. In Plaintiffs view, the legislature improperly exercised a function reserved to the
judicial branch by limiting jury awards under the OTCA. Pls.' Resp. [392] at 18. This argument
is foreclosed by the fact that the legislature created the right to bring an action against a state
instrumentality by waiving sovereign immunity in the OTCA. As discussed above, the OTCA
created the same right with respect to the ability to bring suit against municipalities for
governmental functions, such as the police action that was involved in this case. When creating
a statutory right, a legislature has the discretion to prescribe remedies, even if"[ s]uch provisions
do, in a sense, affect the exercise of judicial power." Northern Pipeline Constr. Co. v. Marathon
7 - OPINION AND ORDER
Pipe Line Co., 458 U.S. 50, 83 (1982). Therefore, I find that applying the OTCA to this case
does not violate the separation of powers required by article III, section 1 of the Oregon
Constitution.
C. Application of the OTCA to This Case
The parties disagree about how the OTCA should apply to the jury's award in this case.
In particular, the parties disagree about 1) whether the "state" limitation or "local public body"
limitation should apply, 2) whether separate limits should apply to Washington County and the
City of Hillsboro, and 3) how many "accidents or occunences" took place, as each accident or
occunence is limited separately.
1.
State or Local Public Body Limit
In the case of personal injury, the OTCA establishes different limits for the liability of the
state and the liability of "local public bodies." Or. Rev. Stat. §§ 30.271-.272. Limits on claims
against the state are approximately three times as high as the limits on claims against local public
bodies. Id. Plaintiffs assert that the "state" limit should apply to Washington County because
the constitutionality of limiting the award against the county depends on the waiver of sovereign
immunity that is derived from the state. See Pls.' Resp. [392] at 19-20. In essence, Plaintiffs
argue that counties should be limited in the same way as the state since both entities exchange
the same sovereign immunity for the limitation of awards under the OTCA. Although the
premise for this analogy is true, there is no reason that the conclusion must necessarily follow.
The Oregon legislature is not prohibited from establishing limits for counties that are different
from the limits for the state, so long as the resulting remedy is substantial. See Horton, 376 P.3d
at 1029 (describing the Oregon legislature's consideration of actuarial data in setting different
limits).
8 - OPINION AND ORDER
For the purposes of the OTCA, the Oregon legislature defined "state" in a manner that
precludes applying the state limit to Plaintiffs' claim against Washington County. The OTCA
defines the "state" as: "(a) State government as defined in Or. Rev. Stat. 174.111; (b) The State
Accident Insurance Fund Corporation; and (c) The Oregon Utility Notification Center." Or. Rev.
Stat. § 30.260(5). Section 174.111 of the Oregon Revised Statutes defines "state government" as
"the executive depaiiment, the judicial department and the legislative depaiiment." Washington
County cannot be defined as "the state" under any of these definitions. Therefore, Washington
County is a "local public body," which is defined as "any public body other than the state." Or.
Rev. Stat. § 30.260(6).
11.
Separate Limits for Each Defendant
Under the OTCA, a separate limit applies to each liable public body. See Or. Rev. Stat.
§ 30.272(2). Despite the presence of two public bodies throughout the litigation of this case, the
City of Hillsboro argues that only one OTCA limit should be applied to the jury's award.
Hillsboro claims that this case involves only one public body because the Hillsboro employee
responsible for the battery acted under the control of Washington County. Hillsboro Obj. and
Mot. [367] at 8. In support of this argument, Hillsboro cites the Master Mutual Law
Enforcement Assistance Agreement ("the Agreement") between Hillsboro and Washington
County. Id. at 7. The Agreement allocates responsibility for liability suits in accordance with
section 190.476 of the Oregon Revised Statutes. Id. Section 190.476 is a statute allocating
liability arising out of the exercise of authority under mutual law enforcement agreements
between Oregon and the states of Washington, Idaho, and California. In agreements between
Oregon and these neighboring states, section 190.476 assigns liability for claims arising out of an
officer's acts to the agency that employs the officer, except when the officer acts under the
9 - OPINION AND ORDER
control and direction of another agency. Therefore, under the Agreement between Washington
County and Hillsboro, liability for claims against Hillsboro's officer acting under the direction of
Washington County is allocated to Washington County.
But the allocation of liability between Defendants does not affect the number of public
bodies involved in this case. At most, the Agreement affects indemnification between the
parties, which is not an issue presently before me. I have previously found that the claims in this
case were properly brought against both Hillsboro and Washington County. Therefore, the
limitations imposed by the OTCA apply separately to each defendant.
111.
The Number of "Accidents or Occurrences"
The OTCA limits apply to claims that "[a]rise out of a single accident or occmTence."
Or. Rev. Stat. § 30.272(1)(c). If the t01iious acts of Defendants constitute more than one
"accident or occurrence," each one is limited separately. Before I issued my October 11, 2018,
Opinion and Order directing Plaintiffs to make an election of remedies, Plaintiffs argued that
there were two accidents or occurrences in this case, one arising from the battery and one arising
from negligence. Pls.' Mem. [392] at 22. For the reasons set f01ih in my October 11, 2018,
Opinion and Order, I found that Plaintiffs had only proven one harm and could not recover on
both the battery and negligence theories. But, because the number of accidents or occurrences
under the OTCA does not necessarily follow from the number of harms that were proven at trial,
I address Plaintiffs' argument that there were two accidents or occmTences even though I
required Plaintiffs to elect only one remedy.
To show that the shooting in this case constituted two accidents or occurrences, Plaintiffs
rely on Wright v. Turner, 322 P.3d 476 (Or. 2014) (en bane). In Wright, the Oregon Supreme
Comi analyzed an insurance statute to dete1mine the meaning of the phrase "any one accident."
10 - OPINION AND ORDER
Id. at 4 79. The court determined that more than one accident occurs when an initial event is
intenupted in some way "such as by time, distance, cause, or a combination of the three." Id. at
486. But the comi also stated that neither the number oftmifeasors nor the number of causes
necessarily determine the number of accidents. Id. at 485. Multiple causes may coalesce to
result in one accident. Id. The essential element in Wright's definition of separate accidents is
whether there was an uninte1Tupted chain of events.
Although Wright addressed the definition of "any one accident" in an insurance statute
rather than the OTCA, the comi's analysis was not limited to interpreting that term in the context
of insurance law. See Wright, 322 P .3d at 484-85 (discussing the concepts of causation and the
number of accidents in the context of negligence and products liability). In addition, the paiiies
have not provided any contrary authority on this issue. Therefore, I accept Plaintiffs' argument
that Wright's definition of "any one accident" can be applied to the facts of this case.
I have previously determined that Plaintiffs failed to identify any appreciable separation
in time or location between the shots that would allow the jury to separate the harm attributable
to negligence from the harm attributable to battery. Order and Opinion [447] at 9-10. This logic
applies with equal force if only the battery is considered. There was no inte1Tuption in the
shooting that injured Mr. Flores-Haro. Therefore, applying Wright, I find that the shooting was
one accident or occurrence for the purpose of dete1mining the number of OTCA limits that apply
in this case.
D. The OTCA's Limit is Quantitatively Substantial
As discussed above, applying the OTCA limits to the jury's award in this case does not
offend the remedy clause of the Oregon Constitution so long as the resulting award is
"substantial." See supra Section A. Because I have found that Horton and Hale establish that
11 - OPINION AND ORDER
the legislature engaged in an acceptable quid pro quo when limiting recoveries under the OTCA,
I now assess whether the limit imposed by the OTCA is quantitatively substantial as applied in
this case. If the ratio of the OTCA limit to the jury's award is within the range of values
determined to be substantial by the Oregon Supreme Court, then application of the OTCA limits
to the jury award in this case is pe1missible under the Oregon Constitution.
As discussed above, applying the OTCA to the jury's award involves determining several
variables. The overall limit depends on whether the state limit or local public body limit applies,
whether separate limits apply to the City of Hillsboro and Washington County, and whether the
tortious conduct in this case constituted more than one "accident or occurrence." For the reasons
stated above, I have determined that the local public body limit applies to both defendants, that
the limit applies separately to each defendant, and that the tmiious conduct in this case
constituted only one accident or occurrence. Because the shooting occmTed in March 2012, the
applicable OTCA limit is $566,700. Or. Rev. Stat. § 30.272(2)(c). Since this limit is applied
separately to Hillsboro and Washington County, Plaintiffs' total recovery is limited to
$1,133,400.
In order to determine whether $1,133,400 is a substantial award, I must first determine
whether to compare that amount to the original jury award ($5,110,000) or to the amount
remaining after Plaintiffs' remittitur and election ofremedies ($1,498,007). In either case, the
ratio-either 22% or 76%-is within the range of acceptable values, as dete1mined by the
Oregon Supreme Comi in Horton, Hale, and Howell. Because the remittitur and election of
remedies were required due to the jury's award in excess of the economic damages and harm
proven at trial, I find that the OTCA limitation should be compared to the amount of damages
after Plaintiffs' remittitur and election ofremedies. The resulting ratio between the award after
12 - OPINION AND ORDER
applying the OTCA limits and the damages pe1missibly awarded by the jury is 76%, which is
three times the ratio found to be "substantial" in Horton. Therefore, I find that Plaintiffs will
receive a substantial recovery if the OTCA limits are applied to the jury's award in this case.
CONCLUSION
For the reasons stated above, I find that limitation of the jury's award in accordance with
the Oregon Tort Claims Act does not violate the Oregon Constitution in this case. Therefore,
because Plaintiffs' battery claim is govemed by section 30.272 of the Oregon Revised Statutes,
Plaintiffs are entitled to recover $1,133,400 from Defendants.
IT IS SO ORDERED.
DATED this
·t
day of January, 2019.
MICHAEL W. MOS _AN
1
Chief United States Dilitrict Judge
13 - OPINION AND ORDER
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