Can Oregon Constitutionally Punish Uninsured Motorists By Curtailing their Rights to Car Accident Damages?
The State Supreme Court Say Yes, But the Right Answer is No

One of the most pernicious effects of the politicization of tort law is that politicians think that the tort system is like the tax code, in that it can be amended to promote various short-term policy goals.

The difference, though, is that unlike the tax code, tort law is part of Americans' basic liberties, and reflects a complex set of principles built into the very fabric of the common law. As I will explain, an Oregon statute - and lawsuit - illustrate this point.

The Oregon Law, and the Suit That Tested It

In 1999, Oregon adopted a statute, ORS 18.592(1), which prohibits an uninsured motorist from collecting noneconomic damages if they file a lawsuit after a car accident. ("Economic" damages represent concrete sums actually lost or paid by the plaintiff as a result of the accident; "noneconomic damages" include damages for pain and suffering.)

Why does the statute exist? As the Oregon Supreme Court put it, it's a "stick" designed to encourage people to abide by the public policy goal of driving with insurance.

As a "stick," it may be quite ineffective, however: Had it wanted to deter uninsured driving more effectively, Oregon might, for example, have increased the criminal penalties for driving without insurance.

Indeed, it seems the statute is not very well-known: I made a brief, albeit unscientific, survey of colleagues in Oregon last week and I can assure you that even lawyers and law professors had never heard of it (except for those who knew about the recent case in which it was tested!).

The Suit That Tested the Oregon Law

The statute came into play when uninsured motorist Elisa Lawson was in a car accident with Spencer Hoke. She sued Hoke, who conceded that he was negligent. The judge awarded Lawson $4210 in economic damages (lost earnings, medical expenses, and the cost of repairing the car), and $5790 in noneconomic damages (pain and suffering).

But Hoke -- citing the 1999 statute -- appealed the judgment of $5790, pointing out that the statue was plainly fulfilled: Lawson was uninsured, and the damages were noneconomic.

An Oregon Court of Appeals agreed with Hoke, as did the Oregon Supreme Court- even in the face of a constitutional challenge to the law by Lawson.

The Court Should Have Struck Down the Oregon Law as Unconstitutional

Though the courts decided against her, Lawson was right: The Oregon statute violates a number of important principles of law, including Oregon's constitutional law.

The Oregon Supreme Court conceded the following principles of law: First, Article I Section 10 of the Oregon Constitution guarantees to Oregonians a right to a remedy for those "absolute common-law rights" that were in existence when the constitution was ratified in 1857. Second, as the Oregon Supreme Court conceded, in 1857 there was an absolute common-law right to recover damages for negligence arising from traffic accidents, and which now extends to automobile accidents.

Lawson brought a negligence suit. The suit arose from a traffic accident. So isn't she protected by the state Constitution in seeking damages for the accident?

The Oregon Supreme Court said no. It reasoned that her right was conditioned on "plaintiff's having a license to be at the place where her injuries occurred."

But Lawson's right was "absolutely" - not conditionally -- guaranteed by the Oregon Constitution. For this reason - and others I will now explain - the Court's decision was wrong: Taking that right away was unconstitutional.

The Flaws in the Court's Analogy to Contributory Negligence

In an attempt to support its reasoning with an analogy, the Court noted that the doctrine of contributory negligence, which was in force in Oregon in 1857, limited the right to sue in negligence to only those persons who had not acted carelessly themselves.

(Readers will likely be more familiar with the more modern comparative negligence doctrine, which sensibly apportions damages based on fault. But contributory negligence operates on a very different principle, which takes the stand that a wrongdoer shouldn't be recovering money, even from someone else who's also at fault.)

The Court's analogy doesn't work - for two reasons. First, as the Court itself noted, contributory negligence was itself a common law doctrine, not a creature of statute.

This is an important distinction because as a common law doctrine, this doctrine was part of the status quo in 1857, when the Constitution made its guarantee. In contrast, as noted above, the statute that affected Lawson wasn't passed until 1999, and when it became law, did so through a legislature's action, not that of a common-law court.

Second, and relatedly, the disability that contributory negligence placed on plaintiffs, while unpopular among some scholars and judges, at least had a connection with the structure of tort law. (Lots of people did--and still--defend contributory negligence as the best interpretation of the overall structure of the common law of negligence.) The doctrine relates to the classic tort law question of who's legally at fault with respect to the accident itself - not the separate question of who should have done something (here, gotten insurance) before the accident ever occurred.

What Did the Framers of the Oregon Constitution Have in Mind?

The Court did not rest its argument about the Framers' intention only on the contributory negligence analogy, however. It also pointed out that in 1857 there were states--though they did not include Oregon--that conditioned their vehicular accident law in a similar way.

Specifically, the court pointed to cases from a handful of states where a plaintiff was barred from suing a municipality for a defect in the road because he or she was traveling on a Sunday when the injury occurred, in violation of the municipality's "Sabbath laws." And granted, such laws did punish motorists for something they did before the accident: specifically, opt to illegally drive on a Sunday.

But this argument, too, has a number of flaws. First, as one of the cases, the 1874 decision in Johnson v. Irasburgh noted, the issue of whether a municipality can be sued by someone who violates the municipality's own laws raises tricky questions of sovereign immunity.

Second, many other jurisdictions, including the United States Supreme Court in 1859, rejected the proposition that violation of a Sunday law could disable a plaintiff from suing in tort.

Third, and most importantly, the Oregon Supreme Court misunderstood the Sunday law cases is. Even a casual reading of the cases reveals that they have nothing to do with a law like the 1999 Oregon statute. Instead, the cases concern the proper scope of the common law doctrine of "per se negligence."

The doctrine of per se negligence, which is set out in the Restatement (Second) of Torts §288B, says the following: A plaintiff who violates a law or regulation designed to regulate their "standard of conduct" is barred from bringing a claim if their violation of that standard was a cause of their injury.

What kind of violation might count? The very kind that might cause an accident: Driving at night without headlights on, for instance.

Arguably, even driving on a Sunday when one is not supposed to, could cause an accident that wouldn't have occurred if everyone was following the law, and refraining from driving. But the modern test is whether the plaintiff violated a safety standard designed to protect against the sort of event that occurred - so the lights-on-after-dark-regulation is a better example.

Lawson didn't have an accident because she was uninsured. She had an accident because Hoke was negligent. She would have had that accident whether or not she was insured. Put another way, the status of her insurance forms - or lack thereof - had nothing to do with one car hitting another that day. So there is no way Hoke could have raised a per se negligence defense.

Why the Current Tort Reform Debate Seems to Have Influenced the Court

The only possible explanations for the Court's decision, I suspect, are the following:

First, the Court's members simply may not think that noneconomic damages are very important. Over the past two decades, there has been a constant barrage of criticism of pain and suffering awards - and tort reform proposals have often targeted such damages as inflated. So the Court may have felt less hesitation about upholding the Oregon statute than about upholding, say, a hypothetical statute that had barred Lawson from recovering any damages at all.

Second, the Court's members may think that the state should be able to use to the tort system to promote the general welfare. This reflects a modern concept that statutes can be used creatively to incentivize, and punish, unrelated behavior.

But that is not the way the Framers of the Oregon Constitution would have thought of the role of statutes in 1857, when they incorporated common-law rights as they then stood. Thus, it ought to take a constitutional amendment, or arguably an evolution of common law - not a statute - to alter their rule. The legislature simply cannot pick and choose which doctrines of tort law to keep and to jettison, and the courts have an obligation to force the other branches of government to justify reforms both as a matter of law and policy.

It is both sad and bizarre that a law like this one--which makes a mess of Oregon's tort law for little obvious public benefit--was created and then upheld.