dissenting.
This case turns on the phrase “upon such cause of action” in ORS 12.220:
“Except as otherwise provided in ORS 72.7250, if an action is commenced within the time prescribed therefor and the action is dismissed upon the trial thereof, or upon appeal, after the time limited for bringing a new action, the plaintiff, or if the plaintiff dies and any cause of action in the favor of the plaintiff survives, the heirs or personal representatives of the plaintiff, may commence a new action upon such cause of action within one year after the dismissal or reversal on appeal; however, all defenses that would have been available against the action, if brought within the time limited for the bringing of the action, shall be available against the new action when brought under this section.” (Emphasis supplied.)
Plaintiffs action is timely if it is an action upon the cause of action that was dismissed by the federal court. To decide that issue, we must first examine her complaints in the two proceedings.
According to plaintiffs first complaint, defendants paid various medical and dental bills for plaintiff and made repeated representations that she had insurance coverage for anticipated elective knee surgery. While she was in the hospital recovering from the first surgery, Oregon Physicians’ Service represented that coverage existed for a second elective knee surgery. She relied on these representations, had the surgeries and submitted the bills for payment. Defendants denied coverage and refused to pay. She alleged that defendants breached their fiduciary duty and were estopped to deny coverage, because she had relied on their false representations to her detriment. After removal, the federal court dismissed the action for lack of jurisdiction.1
Plaintiffs second action alleges the same facts and states separate claims for negligence and for negligent and intentional misrepresentation. The majority holds that that action is not saved by ORS 12.220, because it states new causes of action, not her previous ones. I disagree.
*190We must bear in mind the liberal purpose of ORS 12.220. Hatley v. Truck Insurance Exchange, 261 Or 606, 612, 494 P2d 426 (1972), quoted with approval this passage from Gaines v. City of New York, 215 NY 533, 539, 109 NE 594 (1915), which expresses the purpose:
“The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction stands on the same plane as any other mistake of law. Questions of jurisdiction are often obscure and intricate. * * * There is nothing in the reason of the rule that calls for a distinction between the consequences of error in respect of the jurisdiction of the court and the consequences of any other error in respect of a suitor’s rights.”
Statutes like ORS 12.220 are common in the United States and find their origin in the English Statute of Limitations, enacted in 1623. See Hughes v. Hebert, 106 NH 176, 177, 207 A2d 432 (1965). Those remedial statutes are “liberally construed in order that disputes may be decided upon their merits.” Vari v. Food Fair Stores, 58 Del 145, 148, 205 A2d 529 (Supr Ct 1964).
We should determine what constitutes plaintiffs cause of action under ORS 12.220 by applying the criteria developed in the case law of claim preclusion. ORS 12.220 and claim preclusion law determine the consequences of a litigant’s attempt to pursue a cause of action that previously has been adjudicated or dismissed. They have different ultimate effects. Claim preclusion prevents further litigation of a finally adjudicated cause of action, including all claims based on the same factual transaction. See Whitaker v. Bank of Newport, 313 Or 450, 454, 836 P2d 695 (1992). ORS 12.220 assures the opportunity to continue to litigate, to a judgment on the merits, a cause of action that has been dismissed but not finally adjudicated. What is significant for our purpose is not that applications of those rules can have different outcomes, but that they have the identical starting point, i.e., the *191determination of whether the new action is pursuing the same “cause of action” that was involved in the previous one.
Under claim preclusion law, a cause of action is a single factual transaction, or a connected series of transactions, sometimes described as an aggregate of operative facts, that constitute a single occasion for judicial relief. Whitaker v. Bank of Newport, supra, 313 Or at 455; Rennie v. Freeway Transport, 294 Or 319, 323, 656 P2d 919 (1982); Troutman v. Erlandson, 287 Or 187, 205, 598 P2d 1211 (1979). In Whitaker, the plaintiffs settled a contract action against a developer and his company and then sued the developer, the company and a bank for damages, claiming that they had conspired to force a change in the plaintiffs’ contract. The court held that the second action was one of a series of connected transactions that could have been litigated conveniently with the first action and was, therefore, barred by claim preclusion. The court rejected the plaintiffs’ contention that they should be permitted to pursue contract and tort theories in separate actions:
“That distinction, discussed earlier, is significant but not necessarily decisive. The same factual transaction or series of connected transactions can justify relief on different legal theories. See Troutman v. Erlandson, supra, 287 Or at 207 (‘the fact that different measures of liability or different kinds of relief might have been available, had a different sort of proceeding been instituted, does not keep the doctrine of [claim preclusion] from being applicable’).” 313 Or at 460.
Whitaker’s rationale is instructive here for two reasons. First, it makes clear that plaintiff is pursuing the same cause of action that was dismissed by the federal court. She alleges defendants’ false assurances of coverage, her justifiable reliance and her damage in similar terms in each complaint. Whitaker compels the conclusion that plaintiff is litigating the same factual transaction in each case.
Second, Whitaker required plaintiff to join all claims against defendants when she seeks relief for their alleged misrepresentations. Had plaintiff failed to include her negligence and misrepresentation theories in her complaint, a final adjudication of the transaction would bar them. They were not barred here, because the federal court dismissal was not a final adjudication.
*192ORCP 16C permits a party to bring “as many separate claims or defenses as the party has, regardless of consistency and whether based upon legal or equitable grounds or upon both.” However, a plaintiffs ability to plead different claims in a refiled action is not unlimited. For example, assume that a plaintiff filed a breach of contract action five years after the claim arose and that it was dismissed without prejudice. If the plaintiff refiled it as a tort action, it would be vulnerable to a defense that the first action was not filed within the two-year limitation for tort claims, ORS 12.110(1), even though it was within the limitation for contract actions. ORS 12.080.
Plaintiffs first action was filed, in the words of ORS 12.220, “within the time prescribed” for her original claims as well as for those in her refiled action. Because she timely refiled after the federal court dismissal and her refiled claims are based on the same cause of action identified in her first action, ORS 12.220 renders the refiled action timely.
The Fifth Circuit reached a similar result in Griffen v. Big Spring Indep. School Dist, 706 F2d 645 (5th Cir), cert den 464 US 1008 (1983). The Texas “wrong court savings statute” provided that, if an action was dismissed for lack of trial court jurisdiction, “ such action” could be commenced in a court of proper jurisdiction within 60 days, and the Statute of Limitations would be tolled.2 The plaintiff had filed a claim in state court, styled as an action for review of a state administrative action, alleging that he had been fired because of his race. The trial court dismissed it on jurisdictional grounds. One week later, he filed a complaint in federal court under 42 USC §§ 1981, 1983 and 1985, alleging race discrimination. The court rejected the employer’s argument that the federal civil rights claim was not, for purposes of the tolling statute, the “same action” as the earlier state court action:
*193“The essence of both actions was that Griffen claimed he had been dismissed for racially discriminating motives in violation of his right to be free from racial discrimination. * * * In both state and federal courts the relief Griffen requested was reinstatement and back pay. The substance of the two actions is certainly the same. The sole difference between them — one involved review of the claim by a state administrative agency and one involved review of the claim under federal civil rights statutes — is nothing more than a difference in form. The underlying cause of action is the same. We will not adopt [employer] Big Spring’s reading of a remedial statute intended to be liberally construed when the result would be to elevate form over substance.” 706 F2d at 652. (Emphasis supplied.)
In Griffen, the court followed the holding in Republic National Bank v. Rogers, 575 SW2d 643 (Tex Civ App 1978), that a second action to try title to real property in state court was the “same action,” for purposes of the tolling statute, asa claim previously filed and dismissed in federal court seeking money damages for trespass and injunctive relief. The defendant argued that only the identical claims could be refiled, but the court said:
“We reject that argument. Under the statute, the case before us is a continuation of the suit originally filed in Federal Court. The ‘action’ brought forward was the one pleaded there, and any permissible amendments to it under Article 5539b. As we have previously stated, the pleadings in Federal Court contained all allegations necessary to try title to the property simply by tacking on a prayer for that relief.” 575 SW2d at 647.
In Technical Consultant Services v. Lakewood Pipe, 861 F2d 1357 (5th Cir 1988), the Texas wrong court savings statute was held to save a Texas action for breach of contract and tort damages that previously had been filed in two Florida courts that lacked jurisdiction, first as a breach of contract action and later as an action for breach of contract and tort damages. The court followed Griffen:
“The court in Griffen stressed that its result violated no policies underlying the statute of limitations — such as avoiding prejudice from lost evidence and faded memories — because Griffen’s opponent had ample notice that Griffen intended to pursue his claim. ‘Given the extremely high probability that the plaintiff will refile in a proper court *194* * * the defendant has no one but himself to blame if evidence is lost, memories fade, and witnesses disappear.’ Id. at 650, (quoting Long Island Trust Co. v. Dicker, 659 F2d 641, 647 (5th Cir 1981)).” 861 F2d at 1360.
None of the policies of the Statute of Limitation would be offended here, because defendants have been on notice since plaintiff filed her first action that she intended to seek a remedy for telling her that she had coverage and then, after her surgeries, refusing to pay the bills.3 If we liberally construe ORS 12.220 to achieve its remedial purpose, we must conclude that plaintiff timely refiled the cause of action pleaded in her first action. The majority’s refusal to do that unfairly elevates form over substance.
I dissent.
The federal court dismissal did not by itself affect plaintiff’s right to refile in state court. See Beetham v. Georgia-Pacific, 87 Or App 592, 595 n 2, 743 P2d 755 (1987); Annot., 6 ALR3d 1043 (1966).
Tex Rev Civ Stat Ann Art 5539a (Vernon 1958) provided:
“When an action shall be dismissed in any way * * * because of a want of jurisdiction of the Trial Court * * * and within sixty (60) days after such dismissal or other disposition becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second court shall not be counted as a part of the period of limitation unless * * * the first filing [was] in intentional disregard of jurisdiction.”
The relation back doctrine, mentioned by the majority, 115 Or App at 188 n 3, determines whether an amended pleading is deemed to have been filed as of the date of a superseded pleading. Evans v. Salem Hospital, 83 Or App 23, 31, 730 P2d 562 (1986), rev den 303 Or 331 (1987), says:
“[A] new claim cannot relate back to an earlier pleading unless there is at least enough of a nexus between the claims for the defendant to have been able to have discerned from the first that the existence of the second was a possibility.”
Even if it were necessary to apply the relation back doctrine here, it is satisfied because plaintiffs second complaint states claims that defendants could have predicted from her first action.