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Wilcox v. Les Schwab Tire Centers of Oregon, Inc.

Court of Appeals of Oregon

August 22, 2018

Scott WILCOX, individually and as the Personal Representative of the Estate of Jenna Wilcox, Plaintiff-Appellant,
v.
LES SCHWAB TIRE CENTERS OF OREGON, INC., an Oregon corporation; and Toyo Tire Holdings of Americas, Inc., a California corporation, Defendants-Respondents.

          Argued and Submitted September 8, 2016

          Multnomah County Circuit Court 14CV13351;Christopher J. Marshall, Judge.

          Scott Michael Duquin, New York, argued the cause for appellant. Also on the briefs was Hogan Willig, PLLC.

          Jonathan Hoffman argued the cause for respondents. Also on the brief were John W. Knottnerus and Martin Bischoff Templeton Langslet & Hoffman, LLP.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Plaintiff appeals a judgment dismissing as untimely the wrongful-death action that he brought in his capacity as personal representative of his wife's estate. Plaintiff contends that the trial court erred in granting defendants' ORCP 21 motion to dismiss plaintiff's action as untimely because, under the federal Servicemembers Civil Relief Act (SCRA), the statute of limitation was tolled during the time that plaintiff was on active duty with the Air Force, such that the action was timely fled. Defendants respond that the SCRA did not toll the statute of limitation and, hence, that the trial court did not err in dismissing plaintiff's action as untimely. Held: Because the SCRA tolled the Oregon statute of limitation for plaintiff's wrongful-death action for the period that plaintiff was serving in the Air Force, the trial court erred when it dismissed plaintiff's wrongful-death action as untimely.

         [293 Or.App. 453] ARMSTRONG, P. J.

         Plaintiff appeals a judgment dismissing as untimely the wrongful-death action that he brought in his capacity as personal representative of his wife's estate. Plaintiff and his wife were serving in the United States Air Force at the time of plaintiff's wife's death in April 2010. Plaintiff remained on active duty with the Air Force until September 30, 2011. After being appointed the personal representative of his wife's estate, plaintiff initiated this action on September 17, 2014. Plaintiff contends that the trial court erred in granting defendants' ORCP 21 motion to dismiss plaintiff's action as untimely because, under the federal Servicemembers Civil Relief Act (SCRA), 50 USC sections 3901 to 4043, the state statute of limitation for the wrongful-death action was tolled during the time that plaintiff was on active duty with the Air Force, such that the action was timely filed. Defendants respond that the SCRA did not toll the statute of limitation and, hence, that the trial court did not err in dismissing plaintiff's action as untimely. Because we conclude that the SCRA did toll the limitation period in this case, we reverse and remand.

         In reviewing the trial court's order granting defendants' ORCP 21 motion to dismiss, "we assume the truth of well-pleaded factual allegations in plaintiff's complaint." Cannon v. Dept. of Justice, 261 Or.App. 680, 682, 322 P.3d 601 (2014). Plaintiff purchased a set of Toyo tires from defendant Les Schwab Tire Centers in Portland in 2004 for his two-seat BMW Z3. In late March 2010, plaintiff and his wife were on active duty with the United States Air Force. They were on leave in the United Kingdom and were driving the BMW near the Scottish border. Plaintiff noticed that the car was making an unusual vibration and stopped to check the tires. After receiving the advice of a mechanic, plaintiff replaced the tire that had been causing the vibration with the spare tire. Instead of leaving on the side of the road the tire that plaintiff had replaced, plaintiff's wife placed the tire on her lap while the couple drove in search of a mechanic. The tire exploded while plaintiff's wife held it on her lap, causing her severe injuries that ultimately led to her death on April 1, 2010.

         [293 Or.App. 454] Plaintiff remained on active duty with the Air Force until September 30, 2011. After his discharge from the Air Force, plaintiff was appointed by a Colorado court as the personal representative of his wife's estate. Plaintiff filed this wrongful death action on September 17, 2014, asserting claims for products liability and negligence.[1] Defendants moved under ORCP 21 to dismiss the action as untimely, contending that the applicable statute of limitation for the claims is three years, see ORS 30.020(1), ORS 30.905(4), and that more than three years had elapsed between plaintiff's wife's death and the filing of the action. Plaintiff responded that the SCRA had tolled the period of time for him to bring the claims. He contended that, excluding the time that he had been on active duty in the Air Force, he had filed his action within the three-year limitation period. The trial court disagreed with plaintiffs construction of the SCRA as applied to plaintiff's action and dismissed the action on the ground that plaintiff had not timely filed it.

         Plaintiff appeals the judgment, reprising the arguments that he made below. Defendants respond that the statute of limitation was not tolled during plaintiff's time on active duty because the SCRA does not toll a statute of limitation for an action that is brought by a servicemember acting in his capacity as a personal representative. Alternatively, defendants contend that the SCRA did not toll the statute of limitation under Oregon's wrongful-death statute because the authority to bring a wrongful-death action depends on whether the decedent could have brought an action against defendants had the decedent survived, making the decedent, and not plaintiff, the person whose claims are subject to tolling under the SCRA. We begin by analyzing the SCRA.

         The applicable section of the SCRA, 50 USC section 3936, provides, in part:

"(a) Tolling of statutes of limitation during military service [293 Or.App. 455]
"The period of a servicemember's military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the ...

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