Aline Miller v. Ford Motor Co. , 857 F.3d 1016 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALINE L. MILLER, an No. 14-36001
individual,
Plaintiff-Appellee, D.C. No.
6:14-cv-00785-TC
v.
ORDER CERTIFYING
FORD MOTOR COMPANY, a A QUESTION TO THE
Delaware corporation, OREGON SUPREME
Defendant-Appellant. COURT
Filed May 26, 2017
Before: Jay S. Bybee and Andrew D. Hurwitz, Circuit
Judges, and Jack Zouhary,* District Judge.
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 MILLER V. FORD MOTOR CO.
SUMMARY**
Certification to Oregon Supreme Court
The panel certified the following question of state law to
the Oregon Supreme Court:
Oregon’s statute of repose for products
liability actions (Or. Rev. Stat. § 30.905(2))
provides that a civil action “must be
commenced before the later of . . . ten years
. . . or . . . the expiration of any statute of
repose for an equivalent civil action in the
state in which the product was manufactured
. . . .” If the state of manufacture has no
relevant statute of repose, is a plaintiff entitled
to an unlimited period (subject to the statute
of limitations) in which to bring suit in
Oregon court?
COUNSEL
Emily V. Cuatto and Peder K. Batalden, Horvitz & Levy
LLP, Encino, California; Nancy M. Erfle and Jessica D.
Osborne, Gordon & Rees LLP, Portland, Oregon; Sara
Anderson Frey, Gordon & Rees LLP, Philadelphia,
Pennsylvania; for Defendant-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MILLER V. FORD MOTOR CO. 3
Elizabeth C. Savage and Ivan M. Karmel, Portland, Oregon;
Robert J. Slavik, Seattle, Washington; for Plaintiff-Appellee.
Susan Marmaduke and J. Aaron Landau, Harrang Long Gary
Rudnick P.C., Portland, Oregon, for Amicus Curiae Oregon
Association of Defense Counsel.
Jonathan M. Hoffman and Alice Sayers Newlin, Martin
Bischoff Templeton Langslet & Hoffman LLP, Portland,
Oregon, for Amicus Curiae The Product Liability Advisory
Council, Inc.
ORDER
Pursuant to Oregon Revised Statutes § 28.200, we certify
the following question to the Oregon Supreme Court:
Oregon’s statute of repose for products
liability actions (Or. Rev. Stat. § 30.905(2))
provides that a civil action “must be
commenced before the later of . . . ten years
. . . or . . . the expiration of any statute of
repose for an equivalent civil action in the
state in which the product was manufactured
. . . .” If the state of manufacture has no
relevant statute of repose, is a plaintiff entitled
to an unlimited period (subject to the statute
of limitations) in which to bring suit in
Oregon court?
We respectfully ask the Oregon Supreme Court to exercise its
discretion to accept and decide this question of law, which
will determine the outcome of this appeal. We are aware of
4 MILLER V. FORD MOTOR CO.
no controlling precedent on this issue in the decisions of the
Oregon Supreme Court or intermediate appellate courts. The
Oregon Supreme Court is not restricted to our framing of this
question of state law, and may, in its discretion, answer this
question in any form that it chooses. We will abide by the
answer provided. If the Oregon Supreme Court declines
certification, we will resolve the question according to our
best understanding of Oregon law.
FACTUAL BACKGROUND
Oregon resident Aline Miller owned a Ford Escape,
which was manufactured in June 2001 in Claycomo,
Missouri. The Escape was first sold to a consumer in
September 2001. In May 2012, the Escape caught fire while
parked in Miller’s garage, allegedly due to a faulty sensor in
the engine compartment. The fire spread from Miller’s
garage to her home, causing significant property damage.
Miller also fractured her heel as she fled the fire.
In April 2014, Miller filed a products liability suit in
Oregon state court, alleging various design and
manufacturing defects, as well as failures to warn. Invoking
diversity jurisdiction, Ford removed the case to the District of
Oregon and later moved for summary judgment, arguing the
Oregon statute of repose for products liability actions bars
Miller’s claims because the Escape was first sold to a
consumer more than ten years before she filed suit. The
district court denied the motion, finding Oregon’s ten-year
statute of repose did not apply. Instead, the district court
concluded the statute’s “look-away” provision required the
court to apply the repose period of the state of manufacture.
Because Missouri had no statute of repose for products
MILLER V. FORD MOTOR CO. 5
liability actions, the district court concluded no such
limitation applied to bar Miller’s claims.
On appeal, Ford challenges the district court’s
interpretation of the Oregon statute of repose.
DISCUSSION
Oregon’s statute of repose for products liability actions
reads as follows:
(2) A product liability civil action for
personal injury or property damage must
be commenced before the later of:
(a) Ten years after the date on which the
product was first purchased for use or
consumption; or
(b) The expiration of any statute of repose
for an equivalent civil action in the
state in which the product was
manufactured, or, if the product was
manufactured in a foreign country, the
expiration of any statute of repose for
an equivalent civil action in the state
into which the product was imported.
Or. Rev. Stat. § 30.905(2). Ford contends the statute is
capable of only one reasonable interpretation—namely, that
a products liability action in Oregon is subject to a period of
ultimate repose of either (1) ten years or (2) the period of
repose of the state of manufacture, whichever is longer. Ford
argues that the plain language of the statute does not
6 MILLER V. FORD MOTOR CO.
authorize an unlimited period in which to bring suit because
the look-away provision requires a “statute of repose” in the
state of manufacture that is subject to “expiration.” Ford
suggests that under these circumstances, the look-away
provision does not apply, and the statutory period of ultimate
repose defaults to ten years.
Miller contends that the plain language of the statute is
neither clear nor dispositive, noting that the text does not
explicitly require courts to “look back” to Oregon law if the
state of manufacture has no relevant period of repose. She
also cites several excerpts from the legislative history of the
statute—including testimony before the Senate Judiciary
Committee, concerns raised during debate in the House of
Representatives, and the Legislative News Release
announcing the new statute—suggesting the Oregon
legislature intended to allow plaintiffs to bring suit within the
time permitted in the state of manufacture, however long that
might be.
Oregon principles of statutory interpretation do not
require a court to find the text ambiguous before considering
legislative history. State v. Gaines, 206 P.3d 1042, 1050 (Or.
2009). “However, the extent of the court’s consideration of
that history, and the evaluative weight that the court gives it,
is for the court to determine.” Id. at 1050–51. Here, the text
of the statute appears to predicate application of the look-
away provision on the existence of an equivalent statute of
repose in the foreign state. But the legislative history at least
suggests Oregon lawmakers may not have intended to impose
this limitation. Because the resolution of this case turns
solely on Oregon law, we certify this question of law to the
Oregon Supreme Court for an authoritative decision of this
MILLER V. FORD MOTOR CO. 7
issue. See Patton v. Target Corp., 580 F.3d 942, 948 (9th Cir.
2009).
Further proceedings in this case are stayed pending
receipt of the answer to the certified question or notification
from the Oregon Supreme Court that it declines to answer.
The parties shall notify this Court within ten days after the
Oregon Supreme Court accepts or rejects certification. If the
Oregon Supreme Court accepts certification, the parties shall
file a joint status report with this Court six months after the
date of acceptance and every six months thereafter until the
case is decided. The parties shall then notify this Court
within ten days of the Oregon Supreme Court’s decision.
The Clerk shall file a certified copy of this Order with the
Oregon Supreme Court under Or. Rev. Stat. § 28.215. The
Clerk shall also provide the Oregon Supreme Court a copy of
the record in this case, in whole or in part, upon request.
IT IS SO ORDERED.
______________________________
Jay S. Bybee, Circuit Judge, Presiding