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Kahn v. Pony Express Courier Corp.3/14/2001
the legislature's use of the word "services" in the phrase "loss of * * * services of the decedent" suggests that the latter--including a child's loss of a deceased parent's services--is a form of "monetary" loss and therefore is an item of economic damages within the meaning of ORS 18.560(2)(a). Cf. Prauss v. Adamski, 195 Or 1, 244 P2d 598 (1952) ("pecuniary loss" includes a husband's loss of his wife's services; the measure of such damages is their monetary value).
Examination of ORS 18.560(2)(a) also is instructive. As noted, that provision defines "economic damages" in part as "monetary losses" and includes, among other examples of such losses, "charges * * * incurred for medical, hospital, nursing and rehabilitative services" and "expenses incurred for substitute domestic services." The use of the term "services" in the definition of "economic damages" in ORS 18.560(2)(a) confirms what its use in ORS 30.020(2)(a) suggests: that the legislature regards that term as referring to acts having monetary value. The legislature's use of the term in both ORS 30.020(2)(d) and ORS 18.560(2)(a) therefore is additional evidence that a child's loss of a parent's services is an item of economic damages.
Finally, it is also instructive to consider the types of losses that the legislature expressly denominated as non-economic damages. ORS 18.560(2)(b) first states that non-economic damages "means subjective, non-monetary losses." "Subjective" means in part "arising from conditions within the brain or sense organs" and "arising out of or identified by means of an individual's attention to or awareness of his own states and processes." Webster's at 2275. Expressly enumerated non-economic damages include pain and suffering as well as the loss of "care, comfort, companionship and society." The plain meaning of the term "care" is "serious attention; esp: attention accompanied by caution, pains, wariness, personal interest, or responsibility" and "CHARGE, SUPERVISION, MANAGEMENT: responsibility for or attention to safety and well-being"; synonyms for "care" include "solicitude" and "concern." Id. at 338. Similarly, the plain meaning of the term "comfort" includes "assistance, succor, support, consolation in trouble or worry" and "solace." Id. at 454. "Companionship" means "the quality or state of being a companion"; a "companion" is "one that accompanies or is in the company of another." Id. at 461. Finally, "society" means "companionship or association with one's fellows: friendly or intimate intercourse." Id. at 2162. We have no difficulty concluding that the loss of a parent's "services" is more like the kinds of loss enumerated in ORS 18.560(2)(a), defining "economic damages," than it is like those enumerated in ORS 18.560(2)(b), defining "non-economic damages."
In summary, the plain meaning of the term "services" in ORS 30.020(2)(d), as well as the definitions and examples of economic and non-economic damages provided in ORS 18.560(2)(a) and (b), lead to the conclusion that the legislature intended for "loss of * * * services of a decedent," including a child's loss of a parent's services, to be an item of economic damages.
As noted, defendants also argue that economic damages do not include a child's loss of a parent's services because such a loss is not an "objectively verifiable monetary loss." We have already concluded above that such a loss is a monetary loss. As to whether it is "objectively verifiable," in DeVaux v. Presby, 136 Or App 456, 902 P2d 593 (1995), this court determined that, in the context of ORS 18.560(2)(a), "objectively verifiable" means "capable of confirmation by reference to empirical facts." Id. at 462 (emphasis added). As the court explained, because the le
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