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Barackman v. Anderson3/31/2005
cause to do otherwise would force a party to waive its constitutional right to a jury trial. See Foltz v. State Farm Mutual Auto. Ins. Co., 326 Or 294, 302, 952 P2d 1012 (1998) (so stating). The legislature, however, changed the law to make PIP arbitration voluntary. Id. at 298 n 2. Here, plaintiff voluntarily chose to arbitrate and thus waived her right to a jury trial as to the issues disputed in the arbitration.
As earlier suggested, at this juncture, one issue ordinarily would remain, viz., the issue whether, in the absence of a legislative choice one way or the other respecting the availability of issue preclusion in these circumstances, this court should declare as a matter of common law whether issue preclusion is available. We say "ordinarily," because we would anticipate that the parties also would have addressed that issue. However, this was not the ordinary case. The parties' apparent assumption before both the trial court and the Court of Appeals was that, unless one of plaintiff's two arguments that we already have addressed is well taken, issue preclusion would apply. That assumption was incorrect. For issue preclusion to apply to PIP arbitrations as a matter of law, all the Nelson requirements must be satisfied. However, as previously noted, not all of the Nelson requirements can be determined on the record before us. It follows that the Court of Appeals had no legal basis for ruling as a matter of law that issue preclusion did apply in this case. To the extent that court's opinion can be read to do so, such a holding is beyond the scope of the legal questions framed by plaintiff's summary judgment motion and defendant's response. The question whether, under Nelson, issue preclusion was available to defendant in this case as a matter of law was not properly before the Court of Appeals and is not now properly before us. We therefore express no opinion respecting the issue.
The foregoing notwithstanding, and in light of plaintiff's limited arguments and the limited record before this court, we conclude that the Court of Appeals did not err in reversing the trial court's order that struck defendant's affirmative defense based on issue preclusion. That decision is affirmed, albeit on different and more limited grounds than those the Court of Appeals stated.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
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