and submitted November 28, 2018.
Multnomah County Circuit Court 16CV10909. Leslie G. Bottomly,
M. Quinn argued the cause and fled the briefs for appellant.
H. Fry argued the cause for respondent. Also on the brief was
Karen M. Vickers and Mersereau Shannon LLP.
Theodore P. Heus and Preston Bunnell, LLP, fled the brief
amicus curiae for Oregon Trial Lawyers Association.
L. Runner filed the brief amicus curiae for SAIF
Corporation, Timber Products Company, and BDI Staffing.
Powers, Presiding Judge, and Egan, Chief Judge, and Landau,
Senior Judge. [*]
Or.App. 358] Case Summary: After an unsuccessful workers'
compensation claim, plaintiff brought a personal injury
action against her public employer for damages resulting from
an accident at work. Plaintiff appeals from a motion to
dismiss, assigning error to the trial court's conclusion
that the claim was time-barred under ORS 30.275(9)'s
two-year statute of limitations for tort actions against a
public body. According to plaintiff, the pertinent statute is
ORS 656.019(2)(a), and she fled her claim within that
statute's timeframe-180 days after finalization of an
unsuccessful workers' compensation claim, even if that is
more than two years after the date of the injury.
Held: Based on the principles of statutory
construction, when statutes irreconcilably conflict, the
limitation period in ORS 656.019(2)(a) applies. The trial
court erred when it granted employer's motion to dismiss.
Or.App. 359] LANDAU, S. J.
question in this case is which of two statutes of limitations
applies to plaintiffs personal injury claim against a public
employer. On the one hand, ORS 30.275(9) provides that
"[notwithstanding any other *** statute providing a
limitation on the commencement of an action," a tort
action against a public body must be filed within two years
after the alleged loss or injury. On the other hand, ORS
656.019(2)(a) provides that, "notwithstanding any other
statute of limitation," a claim against an employer-
including a public employer-must be filed within 180 days
after an unsuccessful workers' compensation claim against
the public employer has become final, even if that is more
than two years after the alleged loss or injury. In this
case, plaintiff filed her personal injury claim within 180
days of the date her unsuccessful workers' compensation
claim became final, but more than two years after the injury.
So, depending on which statute of limitations applies, her
claim may or may not have been timely filed.
trial court concluded that plaintiffs claim is time-barred,
because the two-year limitation period in ORS 30.275(9)
applies. The trial court therefore dismissed plaintiffs
claim. For the reasons that follow, we conclude that the
trial court erred and that plaintiffs claim is not
time-barred, because the more generous limitation period in
ORS 656.019(2)(a) applies. Accordingly, we reverse and
case was disposed of on a motion to dismiss, we take the
facts based on the allegations of the complaint and draw all
inferences in favor of plaintiff. See Rice v. Rabb,
354 Or. 721, 723, 320 P.3d 554 (2014) (stating standard of
review). Plaintiff worked as an educational assistant for
defendant, a public school district. On November 8, 2013, a
child riding a scooter crashed into plaintiff, injuring
plaintiffs knee. Plaintiff filed a workers' compensation
claim for the work-related injury to her knee. Defendant
denied the claim on the ground that hers was a combined
condition resulting from the scooter accident in conjunction
with a long-term degenerative knee condition, and the scooter
accident that occurred at work was not the major contributing
cause of the resulting combined condition. See ORS
656.005 [298 Or.App. 360] (7)(a)(B) (a combined injury is
compensable only if the compensable injury is the "major
contributing cause"). Plaintiff requested a hearing at
which she offered expert testimony that the work-related
scooter accident was the major contributing cause of her
condition. The Workers' Compensation Board (board)
ultimately found that plaintiffs evidence was not as
persuasive as defendant's. On October 30, 2015, the board
upheld defendant's denial because the work-related
scooter accident was not the major contributing cause of her
March 31, 2016, plaintiff filed a complaint for negligence
against defendant for damages resulting from the scooter
accident at work. It is undisputed that plaintiff filed that
complaint within 180 days of the board's denial of her
claim, but more than two years from the date of her injury.
Plaintiff alleged in her complaint that the action had been
timely commenced under ORS 656.019 (2Xa). Defendant responded
with a motion to dismiss on the ground that the action was
time barred. According to defendant, the two-year limitation
period in ORS 30.275(9)-not the longer limitation period of
ORS 656.019(2)(a)-controls. The trial court agreed with
defendant and dismissed the complaint.
appeal, plaintiff argues that the trial court erred in
granting defendant's motion to dismiss. She contends that
the longer limitation period of ORS 656.019(2)(a) controls.
She acknowledges that, at least on the surface, both that
statute and ORS 30.275(9) appear to apply; both purport to
apply "notwithstanding" any other statute of
limitations. In light of that apparently irreconcilable
conflict between the two statutes of limitations, plaintiff
argues that ORS 656.019(2)(a) controls because it is both the
more particular provision and the one more recently enacted.
insists that ORS 30.275(9) controls. According to defendant
ORS 30.275(9) clearly states that, subject to exceptions that
do not apply to this case, the two-year limitation period
applies "notwithstanding any other statute of
limitations." Defendant argues that, because ORS
656.019(2)(a) is another statute of limitations and is not
among the listed exceptions to the two-year limitation period
[298 Or.App. 361] ...