Legislators Attempt To Change The Non-Economic Damages Cap In Light Of Horton

By Christina Tella

Legislators attempt to flex their new-found muscle, in House Bill 2129, against changes to the applicability of the non-economic damages cap in light of Horton.

Until recently, Oregon courts consistently held the non-economic damages cap is applicable only to wrongful death claims, despite that ORS 31.710’s wording does not limit the non-economic damages cap in that manner. However, a recent Oregon case, Horton v. OHSU, left the door open for courts to apply the cap to other types of tort claims. 359 Or 168 (2016). The Horton Court held: the Oregon State Constitution does not limit legislative authority to define the extent of damages available for particular claims.

In response, the Oregon legislature proposed House Bill 2129 to statutorily limit the non-economic damages cap to “any civil action for the wrongful death of any” person. ORS 31.710. As currently worded, ORS 31.710 applies to “any civil action.” Essentially House Bill 2129 prevents any uncertainty as to the applicability of Horton’s ruling by placing clear statutory limits on the non-economic damages cap — it would only apply to wrongful death claims.

In addition to statutorily attempting to keep the non-economic damages cap confined to its pre-Horton application, HB 2129 also proposes to increase the non-economic damages cap to $1,000,000 — double its current amount.

House Bill 2129 would apply to all claims arising prior to and after the Bill’s effective date, so long as a final judgment had not been entered. If passed, HB 2129, would be a blow to defense use of the Horton case, which left open numerous possibilities for the applicability of the non-economic damages cap. While many issues surrounding the cap are unresolved, one thing is certain: currently, the non-economic damages cap continues to be an effective defense tool in claims where non-economic damages exceed $500,000.

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