Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lunsford v. NCH Corp.

Court of Appeals of Oregon

April 26, 2017

Ronda LUNSFORD, Personal Representative of the Estate of Rodney Gale Lunsford, Deceased, Plaintiff-Appellant Cross-Respondent,
v.
NCH CORPORATION, dba Certified Labs, and dba Chemsearch; Aervoe Industries, Inc., fdba Zynolyte Products, Co., Inc.; Rust-Oleum Corporation; The Sherwin-Williams Company, dba Dupli-Color Products, Co., and fdba Dupli-Color Products, Co.; Dupli-Color Products, Co.; and Rodda Paint, Co., Defendants, and DYNACCO, INC., Defendant-Respondent Cross-Appellant. DYNACCO, INC., Third-Party Plaintiff,
v.
RUDD COMPANY, INC., Third-Party Defendant.

          Submitted on remand September 6, 2016.

          Argued on remand March 13, 2017.

         Multnomah County Circuit Court 110912644

         On remand from the Oregon Supreme Court, Lunsford v. NCH Corp., 360 Or 235, 381 P.3d 824 (2016). Adrienne C. Nelson, Judge.

          J. Randolph Pickett, argued the cause for appellant-cross-respondent. With him on the briefs were R. Brendan Dummigan, Kristen W. McCall, Kimberly O. Weingart, and Pickett Dummigan LLP. With him on the supplemental brief on remand were R. Brendan Dummigan, Kimberly O. Weingart, Ron K. Cheng, and Pickett Dummigan LLP.

          Leslie A. Kocher-Moar argued the cause for respondent-cross-appellant. With her on the briefs were Robert D. Scholz, Megan L. Ferris, Chris L. Wyrostek, and MacMillan, Scholz & Marks, P. C. With her on the supplemental brief on remand were Robert D. Scholz, Megan L. Ferris, and MacMillan, Scholz & Marks, P. C.

          Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         The Supreme Court vacated and remanded Lunsford v. NCH Corp., 271 Or.App. 564, 351 P.3d 804 (2015), decision vac'd, 360 Or 235, 381 P.3d 824 (2016) (Lunsford I), for reconsideration in light of Horton v. OHSU, 359 Or 168, 376 P.3d 998 (2016), which overruled one of the remedy clause cases on which Lunsford I relied. Lunsford I held that the foreclosure of plaintiff's claim by ORS 30.905(3)(b) (2008), does not violate either the remedy clause of Article I, section 10, of the Oregon Constitution, or the jury trial clause of Article I, section 17, of the Oregon Constitution. Plaintiff now argues that, Horton permits a conclusion to the contrary. Held: Although Horton overrules the applicable remedy clause case law on which the holding in Lunsford I is based, the case law reinstated by Horton dictates the same ultimate conclusion: plaintiff's challenge under Article I, section 10, is foreclosed. Similarly, Horton does not alter the conclusion that plaintiff's Article I, section 17, challenge is foreclosed.

         Affrmed on appeal; cross-appeal dismissed as moot.

          FLYNN, J. pro tempore

         This appeal returns to us on remand from the Oregon Supreme Court. In our earlier opinion, we applied Oregon Supreme Court precedent and held that the statute of ultimate repose for product liability claims, ORS 30.905(3)(b) (2008), does not violate either the remedy clause of Article I, section 10, of the Oregon Constitution, or the jury trial clause of Article I, section 17, of the Oregon Constitution. Lunsford v. NCH Corp.. 271 Or.App. 564, 566, 351 P.3d 804 (2015), decision vac'd, 360 Or 235, 381 P.3d 824 (2016) (Lunsford I). The Supreme Court vacated and remanded our decision for reconsideration in light of that court's opinion in Horton v. OHSU. 359 Or 168, 376 P.3d 998 (2016), which overruled one of the remedy clause cases on which our first decision relied.

         On remand, we again conclude that plaintiff's challenge under the remedy clause is foreclosed by a controlling Supreme Court opinion. In the wake of Horton, we now arrive at the same result by following Sealey v. Hicks, 309 Or 387, 396, 788 P.2d 435 (1990), in which the Supreme Court rejected an Article I, section 10, challenge to the statute of ultimate repose under a remedy clause paradigm that- although previously disavowed by the Supreme Court-has now been restored by Horton. We reject plaintiff's argument that we can distinguish or disregard Sealey. We also adhere to our prior conclusion that Sealey requires us to reject plaintiffs Article I, section 17, challenge. Accordingly, we affirm.[1]

         As set out in Lunsford I, plaintiff filed a wrongful death product liability action alleging that decedent died in 2008 as a consequence of a form of leukemia caused by long-term exposure to unreasonably dangerous benzene-containing products, including a product manufactured by defendant. Defendant argued that plaintiff's claim against defendant is barred by the products liability statute of ultimate repose, ORS 30.905(1) (2008), which provides that "a product liability civil action may not be brought for any death, personal injury or property damage that is caused by a product and that occurs more than eight ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.