Submitted on Remand February 10, 2015.
Jackson County Circuit Court 081663E7. On remand from the Oregon Supreme Court, Bova v. City of Medford, 356 Or. 516, 340 P.3d 47 (2014) . Mark S. Schiveley, Judge.
Robert E. Franz, Jr., and Law Office of Robert E. Franz, Jr., filed the briefs for appellants.
Stephen L. Brischetto filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[271 Or.App. 454] SERCOMBE, J.
Plaintiff, a now-retired employee of the City of Medford, brought this action against the city and its city manager (collectively, " the city" ), claiming that the city violated ORS 243.303(2). That statute provides that a " local government that contracts for or otherwise makes available health care insurance coverage for officers and employees of the local government shall, insofar as and to the extent possible, make the coverage available for any retired employee of the local government." Plaintiff claimed that the city violated ORS 243.303(2) when it made certain health insurance coverage available to city employees while they were working, but failed to make that coverage available to plaintiff and members of a certified class of current employees when they retired. Plaintiff sought declaratory and injunctive relief, and the trial court granted him that relief after concluding, on plaintiff's motion for summary judgment, that the city had violated ORS 243.303(2). The city appealed, challenging that ruling along with several others. We concluded that the trial court erred in granting summary judgment to plaintiff on his claim for declaratory and injunctive relief under ORS 243.303(2), because " the legal standard that the trial court applied conflicts with the standard articulated by the Supreme Court in Doyle v. City of Medford, 347 Or. 564, 227 P.3d 683 (2010) [ Doyle I ], a decision that issued after the trial court's summary judgment ruling." Bova v. City of Medford, 262 Or.App. 29, 31-32, 324 P.3d 492 (2014) ( Bova I ).
Plaintiff petitioned for review. While his petition was pending, the Supreme Court issued its decision in Doyle v. City of Medford, 356 Or. 336, 337 P.3d 797 (2014) ( Doyle II ), a case involving claims for damages brought by retired city workers under ORS 243.303(2) that the trial court considered along with plaintiff's claims in this case. As to the Doyle plaintiffs' damages claim under ORS 243.303(2), the trial court determined that that statute provided for a private right of action for damages. In Doyle II, the Supreme Court concluded that there is no tort-based private right of action for a local government's violation of ORS 243.303(2), but held that the plaintiffs in that case did " have a claim for a determination of the parties' rights and duties under the statute that is actionable under the Declaratory Judgments [271 Or.App. 455] Act" and could seek " supplemental relief" under the act for " any cognizable damages." 356 Or. at 372, 383. Shortly after issuing its decision in Doyle II, the Supreme Court allowed review in this case, vacated our decision, and remanded " for determination of whether plaintiff is entitled to summary judgment on the ground that the city violated ORS 243.303 as determined under ORS Chapter 28."  Bova v. City of Medford, 356 Or. 336, 337 P.3d 797 (2014) ( Bova II ).
In light of the focused nature of the Supreme Court's judgment on remand, we need not review in detail the tortured procedural history surrounding the Doyle and Bova litigation, which is now the subject of at least a dozen state and federal appellate court opinions. Instead, consistent with the
court's instructions, we consider plaintiff's ORS 243.303(2) claim in light of the Declaratory Judgments Act (the Act), ORS chapter 28. In his complaint, plaintiff sought a " [d]eclaratory judgment and equitable relief, including an injunction prohibiting [the city] from continuing [its] unlawful conduct." In Bova I, 262 Or.App. at 36 n 4, we noted that " plaintiff seeks declaratory and injunctive relief on the application of ORS 243.303(2) under the [Act]." As the Supreme Court made clear in Doyle II, 356 Or. at 383, the Act provides [271 Or.App. 456] plaintiff, a now-retired employee of the city, with a claim for a determination of rights and duties under ORS 243.303(2). The Act also gives the trial court the power to order " [f]urther relief," which may include an injunction where appropriate. See ORS 28.080 (" Further relief based on a declaratory judgment may be granted whenever necessary or proper." ); Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or. 566, 575, 994 P.2d 112 (1999) (explaining that " [f]urther relief" available under ORS 28.080 includes an injunction); see also Swett v. Bradbury, 335 Or. 378, 389, 67 P.3d 391 (2003) (noting that, in a proceeding under the Act, " a court has the power to grant equitable remedies," including an injunction, " where appropriate" ).
But relief under the Act depends on whether plaintiff is entitled to summary judgment on the ground that the city violated ORS 243.303(2). In this case, when it considered plaintiff's summary judgment motion, the trial court understood ORS 243.303(2) to preclude the city from relying " on the cost of insurance coverage as indicating impossibility." (Internal quotation marks omitted.) The trial court viewed the determinative question under the statute as whether the record showed " that other insurance which provides bridge coverage for retirees indisputably is and has been available." Because plaintiff had " solicited evidence from the appropriate City representative that it was, indeed, possible for the City to contract for, or otherwise provide, health benefit insurance for both current employees and retired employees," the trial court granted plaintiff's summary judgment motion.
We adhere to our conclusion in Bova I that the trial court erred in granting plaintiff's motion. As we explained, " [t]he trial court ruled that plaintiff could establish that the city violated ORS 243.303(2) by showing that 'insurance which provides bridge coverage for retirees indisputably is and has been available,' and that, to create a genuine issue of material fact, the city had the burden to show that such coverage was not available." 262 Or.App. at 42. In Doyle I, however, the Supreme Court rejected the argument that, " if there are providers available who are willing to provide [health insurance] coverage that includes retirees, the city must provide that coverage, regardless of cost [271 Or.App. 457] or other circumstances." 347 Or. at 570 (internal quotation marks omitted). The court reasoned that the statute was " not intended to be unduly burdensome," and a local government could present evidence of " factual ...