From the desk of Joshua P. Hayward: When a plaintiff’s original action is dismissed without prejudice, will issue preclusion bar plaintiff’s second action including the same allegations? Read on to see how the Oregon Court of Appeals recently answered this question.
Claims Pointer: The Oregon Court of Appeals held that the defendant failed to establish that the first negligence action, which was dismissed without prejudice, resulted in a final decision on the merits. Therefore, because a final decision was not rendered, plaintiff could bring a second matter with the same allegations. To avoid subsequent litigation, it is important to obtain a dismissal with prejudice or an adjudication via summary judgment.
Hancock v. Pioneer Asphalt, Inc., 276 Or App 875 (March 9, 2016).
Richard Hancock (“Hancock”) initially filed a timely action alleging he was injured while driving over an unmarked speed bump on a private road owned by Threemile Canyon Farms (Threemile). He alleged that his injury was caused by the negligence of Threemile as well as by the negligence of the company or companies that constructed the speed bump. He identified these potential defendants as John Does 2 and 3. Hancock sent a copy of his complaint to Pioneer Asphalt, Inc. (“Pioneer”) and other construction companies known to do business in the county. He also provided a cover letter with the complaint advising the companies that they might be the potential defendant identified as “John Doe.”
More than two years after his injury, Hancock learned through discovery that Pioneer was likely involved in constructing the speed bump and he amended his complaint to name Pioneer. Pioneer moved to dismiss arguing that, as to Pioneer, the case was not commenced within the time limited by statute. Hancock argued that the letter along with the copy of the complaint sent to Pioneer within the two year limitation period provided Pioneer notice that it was the proper defendant and, therefore, that...