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Sherwood v. Oregon Department of Transportation9/27/2000
Argued and submitted June 1, 2000.
Reversed and remanded as to dismissal of Counts 3 and 4; otherwise affirmed.
Plaintiffs Noralee, David, and Nathan Sherwood appeal from a judgment in favor of defendant Oregon Department of Transportation (ODOT), in a tort action arising out of an automobile accident. Plaintiffs assign error to the trial court's grant of ODOT's motion for summary judgment and argue, specifically, that the court erred in holding that: (1) Noralee's negligence claim was barred by both issue preclusion and claim preclusion; (2) David's loss of consortium claim was barred by issue preclusion; and (3) Nathan's claim for negligent infliction of emotional distress was insufficient as a matter of law. We conclude that the trial court erred in dismissing David's loss of consortium claim and Nathan's claim for emotional distress damages, see Saechao v. Matsakoun, 78 Or App 340, 717 P2d 165, rev dismissed 302 Or 155 (1986), but correctly granted summary judgment against Noralee's claims. Accordingly, we reverse and remand David's loss of consortium claim and Nathan's claim for negligent infliction of emotional distress, but otherwise affirm.
For purposes of appeal, the following facts are undisputed. On November 9, 1993, Noralee and Nathan were driving on Canyon Road in Washington County. The Sherwoods' car struck a curb barrier and collided with a vehicle driven by Maria Mitchell. Noralee, Nathan, and Mitchell were all injured. On May 31, 1995, plaintiffs filed this action in Washington County Circuit Court alleging that ODOT had been negligent in its construction and placement of the raised curb that Noralee struck before colliding with Mitchell, as well as in failing to warn drivers of the curb. Count One of the complaint sought damages for Noralee's injuries. Count 2 sought damages for Nathan's physical injuries. Count 3, which was captioned "Negligent Infliction of Emotional Distress," alleged in part:
"3.2 As a direct and proximate result of the negligence of Defendant [ODOT], NATHAN D. SHERWOOD, a minor, witnessed the injuries suffered by his mother, NORALEE SHERWOOD, thereby causing him severe emotional distress."
"3.3 As a direct and proximate result of the emotional distress referenced above, NATHAN D. SHERWOOD, a minor, has been damaged in an amount not less than ONE HUNDRED THOUSAND DOLLARS AND NO/100s ($100,000)."
Finally, Count 4 sought loss of consortium damages for David. .
On November 8, 1995, Mitchell filed suit against Noralee in Multnomah County Circuit Court but did not name ODOT as a defendant. Mitchell sought damages totaling $2,171,053.95--exceeding the coverage limits of the Sherwoods' liability insurance policy with Safeco Insurance Company (Safeco). Safeco retained attorney Larry Brisbee as counsel to defend Mitchell's claims against Noralee. There is no indication in the record of any reservation of rights. In January 1996, Brisbee filed an Answer and Third Party Complaint, which sought contribution against ODOT based on ODOT's alleged negligence in constructing and placing the curb barrier and in failing to adequately warn drivers about the curb. Those allegations of comparative fault were similar to the allegations of negligence against ODOT in the Washington County action.
In July 1996, Mitchell's claims against Noralee settled, leaving the third-party contribution claim to be litigated. ODOT then moved for summary judgment against Noralee's contribution claim on the basis that, because Mitchell (not Noralee) had never served the state with a tort claim notice pursuant to ORS 30.275, ODOT could not be liable to Noralee for contribution. The court denied the motion, and th
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