Lawson v. Hoke9/9/2005
rast, the issue before the court is whether plaintiff has the right to seek non-economic damages under the circumstances of her case.
As this court stated in Jensen v. Whitlow, 334 Or 412, 422, 51 P3d 599 (2002), "Article I, section 17, is not a source of law that creates or retains a substantive claim or a theory of recovery in favor of any party." Instead, Article I, section 17, simply "'guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857.'" Id., quoting Lakin, 329 Or at 82. This court continued in Jensen, "The right to pursue a 'civil action,' if it exists, must arise from some source other than Article I, section 17, because that provision is not an independent guarantee of the existence of a cognizable claim." Id. (internal quotation marks omitted); see also DeMendoza v. Huffman, 334 Or 425, 447, 51 P3d 1232 (2002) (rejecting plaintiffs' argument that law requiring plaintiffs to split punitive damages with state violated Article I, section 17, on ground that plaintiffs had no underlying right to receive award reflecting jury's determination of punitive damages, and those damages were not necessary to compensate plaintiffs for their losses or injuries).
In this case, we already have held that no "absolute common-law right" that existed when the Oregon Constitution was drafted in 1857 would have guaranteed a person in plaintiff's position (as violator of a law requiring drivers to have insurance) a remedy for her injuries. No other source of law authorizes plaintiff's claim for non-economic damages. Certainly, Article I, section 17, does not provide such a source. It follows, then, that the legislature's choice to preclude uninsured drivers from recovering non-economic damages does not implicate Article I, section 17, of the Oregon Constitution.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.
DE MUNIZ, J., dissenting
In Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), this court concluded that, because Article I, section 10, of the Oregon Constitution guarantees a remedy for any "injury" to absolute common-law rights respecting person, property, or reputation, the legislature does not have plenary authority to deprive an injured person of their damages for such injuries. Id. at 135-36. Today, the majority retreats from that interpretation of Article I, section 10, by concluding that the legislature may bar injured litigants from seeking a remedy for harm to an absolute common-law right. I respectfully dissent.
Article I, section 10, of the Oregon Constitution provides that "justice shall be administered * * * completely" and that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." In Smothers, this court explained the wisdom of the remedies clause:
" he remedy clause of Article I, section 10, protects rights respecting person, property, and reputation that, in 1857, the common law regarded as 'absolute,' that is, that derive from nature or reason rather than solely from membership in civil society. By the seventeenth century, the remedial side of the common law had developed to protect those rights in the event of injury by any other subject of the English realm. The function of common-law causes of action was to restore 'justice' or 'right' following injury. 'Injury' at common law meant any harm or wrong to absolute rights for which a cause of action existed."
Smothers, 332 Or at 123-24. Smothers reached
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