52 Trial Lawyer • Fall 2023 tions induce a consumer to purchase something the consumer would not have otherwise purchased, the fact that the purchased item is worth as much or more than the amount the consumer paid does not mean the consumer has not suffered a loss. Plaintiff cannot pursue negligence claim after workers’ comp deems injury noncompensable; ORS 656.019 does not set forth statutory exception to the exclusive remedy provision. Bundy v. NuStar GP, LLC, 371 Or 220 (2023), DeHoog, J. John Burgess represented the plaintiff and Jim Coon filed the amicus brief for OTLA. The plaintiff terminal operator is in charge of monitoring air quality of the machinery and, in the course of his work, was exposed to harmful levels of diesel, gasoline and ethanol fumes. The defendant employer initially paid the workers’ compensation claim for that injury but subsequently denied claims of additional conditions allegedly arising out of the same incident. The board concluded that the plaintiff’s work exposure was not the major contributing cause of his consequential claims for somatoform disorders. While his consequential claims were pending, the plaintiff filed a separate negligence action against the employer in the trial court. The trial court dismissed the claim on the defendant’s rule 21 motion. The plaintiff appealed and the Court of Appeals affirmed the trial court’s decision. The Supreme Court accepted review to determine whether ORS 656.019 provided an exception to the “exclusive remedy” provision of ORS 656.018. The Supreme Court concluded it did not. The court recognized that, under Smothers, “workers’ compensation claimants who were denied benefits on majorcontributing-cause grounds would be entitled to pursue recovery in civil negligence actions.” However, the court concluded that the Legislature intended tenant $9,050 in damages, incorporating 12 months of the tenant’s periodic rent. Instead, the court concluded that the tenant should have been awarded the greater of one month’s periodic rent or twice the amount wrongfully charged in the aggregate. The court ultimately concluded that the tenant should have been awarded $960, which was twice the amount wrongfully charged using the court’s construction of ORS 90.315(4) (f) (and which was greater than one month of the tenant’s periodic rent). Justice Nakamoto dissented, highlighting that the text of ORS 90.315(4) (f) was silent with respect to how to assess a penalty for multiple and ongoing violations of the statutory requirements that apply to landlords who charge tenants for utilities. The dissent explained that the majority opinion failed to explain why what amounted to four separate landlord violations each month gave rise to but one penalty and that, at the very least, the tenant should have been awarded damages equaling four months of rent. The dissent further concluded that ORS 90.315(4)(f) could reasonably be read to require a penalty for each violation in the manner that the tenant had argued. A consumer’s “ascertainable loss” within the meaning of the UTPA can, under some circumstances, flow from the consumer’s decision to purchase a product in reliance upon the retailer’s misrepresentation as to price history or comparative prices. Clark v. Eddie Bauer LLC, 371 Or 177 (2023); DeHoog, J. The plaintiff was represented by Che Corrington. Nadia Dahab filed an amicus brief on behalf of OTLA. The defendants operate a chain of outlet stores where they sell Eddie Bauer branded clothing. The plaintiff, Susan Clark, purchased several items from the defendants’ store, paying the “sale” price printed on each item’s tag. Each product’s tag also listed a higher, non-discounted price, suggesting that before the sale, the product was sold at that higher comparator price. In her class action complaint, the plaintiff alleged that, although the defendants advertised their clothing as substantially discounted, that clothing, with limited exceptions, was never sold at the outlet stores, or anywhere else, at the higher prices listed on the products’ tags. Based on that allegation, the plaintiff claimed the defendants had violated Oregon’ Unlawful Trade Practices Act (UTPA) by making false or misleading representations about the price history of the clothing they sold. The federal district court dismissed the plaintiff’s complaint, ruling she had failed to state a claim under the UTPA because she had not alleged that the defendants had made false representations about the character or quality of the clothing she had bought. The plaintiff appealed to the Ninth Circuit, which certified to the Oregon Supreme Court the question whether, under the UTPA, a consumer suffers an “ascertainable loss” within the meaning of ORS 646.638(1) when the consumer purchases a product that the consumer would not have purchased at the price that the consumer paid but for a seller’s violation of the UTPA if the seller’s violation arises from a representation about the product’s price, comparative price or price history, but not about the character or quality of the product itself. In response to the Ninth Circuit’s certified question, the Supreme Court held that the plaintiff’s theory of ascertainable loss — that a consumer suffers a loss by purchasing a product that the consumer would not have purchased but for the seller’s unlawful misrepresentations — was valid even in the absence of an allegation that the seller had misrepresented some characteristic or quality of the product sold. The Supreme Court reasoned that, if a seller’s misrepresentaSheets Continued from p 51
RkJQdWJsaXNoZXIy MTY1NDIzOQ==