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Delcastillo v. Norris1/19/2005
" he party against whom a claim is asserted may, at any time up to 10 days prior to trial, serve upon the party asserting the claim an offer to allow judgment to be given against the party making the offer for the sum therein specified. asserting the claim fails to obtain a more favorable judgment, the party asserting the claim shall not recover costs, prevailing party fees, disbursements, or attorney fees incurred after the date of the offer * * * *."
If the offer is not accepted and
if the party
(Emphasis added.)
On appeal, plaintiff raises four assignments of error. We write to discuss two of them and reject the others without discussion. First, plaintiff argues that the trial court erred in granting defendant's motion to compel the medical examination because he did not show good cause. Second, plaintiff argues that the trial court erred in limiting her cost award to costs incurred before the date of defendant's ORCP 54 E offer. Plaintiff contends that, in determining whether she received "a more favorable judgment" at trial pursuant to that rule, the court should have examined the "reality of what a party would actually receive under either the offer or the trial result." Instead, the trial court compared the gross dollar amounts of the offer and the award, $8,950.00 and $6,991.22, respectively, to determine that the offer of judgment was greater and, thus, more favorable.
We first address whether the trial court, pursuant to ORCP 44 A, properly compelled plaintiff to submit to a medical examination. ORCP 44 A provides that the court may order a party to submit to a physical examination under certain circumstances. Thus, the ultimate decision to order such an examination is discretionary, and we review that decision accordingly. Such discretion may be exercised if (1) the physical condition of a party is "in controversy," (2) the order is made "on motion for good cause shown," and (3) proper notice is given to the person to be examined and to all of the parties. ORCP 44 A. Establishment of the existence of those factors may involve findings of fact or law, which must be reviewed under the applicable standard of review for such findings. Compare State v. Ervin, 193 Or App 41, 45, 88 P3d 296 (2004) (applying similar two-step standard of review to exclusion of evidence under OEC 403); Evans v. Brentmar, 186 Or App 261, 265, 62 P3d 847, rev den, 336 Or 60 (2003) (same as to review of a motion to set aside a default judgment under ORCP 69 A(1)). Here, plaintiff argues that defendant failed both to show "good cause" for the examination and to give proper notice of the examination. Because plaintiff failed to preserve her notice argument, we address only whether defendant showed "good cause" for the examination, and review the trial court's conclusion that good cause existed as a matter of law.
ORCP 44 A does not define "good cause." To determine the meaning of a statutory term, the court first examines the text and context of the statute. If the meaning is unclear from the text and context, the court then looks to legislative history and, if the meaning is still unclear, to general maxims of statutory construction. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).
Webster's Third New Int'l Dictionary 978 (unabridged ed 2002) defines "good cause" as "a cause or reason sufficient in law: one that is based on equity or justice or that would motivate a reasonable man under all the circumstances." This definition leaves no ambiguity about the meaning of "good cause," a meaning that is in accordance with the longstanding principle that courts may require a physical examination if it appears to promote
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