Submitted on Remand April 1, 2015.
080137L7. Jackson County Circuit Court. On remand from the Oregon Supreme Court, Doyle v. City of Medford, 356 Or. 336, 337 P.3d 797 (2014) . Mark S. Schiveley, Judge.
Robert E. Franz, Jr., and Law Office of Robert E. Franz, Jr., filed the briefs for appellants-cross-respondents.
Stephen L. Brischetto filed the briefs for respondents and respondents-cross-appellants.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[271 Or.App. 460] DUNCAN, P. J.
Plaintiffs are retired employees of defendant, the City of Medford. Plaintiffs brought this action against the city, alleging several claims, including a claim that the city had violated ORS 243.303(2), set out below, by failing to make healthcare insurance coverage available to them in their retirement. Plaintiffs sought injunctive relief and damages to compensate them for their additional medical and insurance expenses as well as
noneconomic damages and attorney fees. On the parties' motions for summary judgment on the issue of the city's liability for violating ORS 243.303(2), the trial court ruled that the city had violated the statute and granted summary judgment in favor of the two plaintiffs whose ORS 243.303(2) claims were timely filed, Doyle and Miller, and denied the city's motion. The city appealed and we reversed, holding that, contrary to plaintiffs' argument, ORS 243.303(2) does not create a tort-based private right of action. Doyle v. City of Medford, 256 Or.App. 625, 652, 303 P.3d 346 (2013) ( Doyle III ).
The Supreme Court allowed review and reversed our decision in part. Doyle v. City of Medford, 356 Or. 336, 337 P.3d 797 (2014) ( Doyle IV ). Although the court upheld our conclusion in Doyle III that there is no tort-based private right of action for a local government's violation of ORS 243.303(2), the court held that plaintiffs do have a justiciable claim for declaratory judgment, which encompasses the right to a declaration as to whether the city violated ORS 243.303(2), as well as the right to seek " supplemental relief under ORS 28.080 for any cognizable damages that resulted from a violation of ORS 243.303(2), such as economic damages for the cost of obtaining substitute health insurance." 356 Or. at 373. The Supreme Court remanded the case to us and directed us to evaluate the trial court's summary judgment rulings as [271 Or.App. 461] if plaintiffs' claim for violation of ORS 243.303(2) had been brought under ORS chapter 28, the Uniform Declaratory Judgments Act. Because, as explained below, we conclude that the trial court applied the wrong legal test when ruling on the parties' motions for summary judgment on the issue of whether the city violated ORS 243.303(2), we reverse and remand on appeal and cross-appeal.
ORS 243.303(2) requires local governments to make healthcare insurance available to their retirees under certain circumstances. It provides:
" The governing body of any 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 that coverage available for any retired employee of the local government who elects within 60 days after the effective date of retirement to participate in that coverage and, at the option of the retired employee, for the spouse of the retired employee and any unmarried children under 18 years of age. The health care insurance coverage shall be made available for a retired employee until the retired employee becomes eligible for federal Medicare coverage, for the spouse of a retired employee until the spouse becomes eligible for federal Medicare coverage and for a child until the child arrives at majority, and may, but need not, be made available thereafter. The governing body may prescribe reasonable terms and conditions of eligibility and coverage, not inconsistent with this section, for making the health care insurance coverage available. The local government may pay none of the cost of making that coverage available or may agree, by collective bargaining agreement or otherwise, to pay part or all of that cost."
(Emphasis added.) The trial court ruled that ORS 243.303(2) requires the city to make healthcare insurance coverage available to its retirees if there is an insurer that will provide the coverage. The trial court rejected the city's argument that it was not possible for it to provide healthcare insurance coverage to its retirees because its chosen insurer did not provide such coverage. It also concluded that the city could not " rely on the cost of insurance as indicating ...