dissenting.
What the legislature ‘ ‘ giveth ” to the prevailing party in a civil rights action based on a claim of unlawful employment discrimination, this court today “taketh away.”
ORS 659.121(2) of the Oregon civil rights law provides, inter alia, that in any civil action in which a person claims to be aggrieved by a violation of ORS 659.425(1) (discrimination against a disabled person in employment) “the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal.” ORS 20.107(1) provides:
*516“In any civil judicial proceeding * * * a complaining party who prevails in a final binding judgment on a claim of illegal discrimination in violation of state constitutional provision, statute or administrative rule shall be entitled to recover costs and disbursements, including attorney and expert witness fees reasonably and necessarily incurred in connection with the discrimination claim, at the trial court * * * and on appeal.”
ORS 20.130 further provides that in all actions in which the state or a public corporation is a party, “the state or public corporation is liable for and may recover costs and disbursements in like manner and with like effect as in the case of natural persons.” (Emphasis added.)
Despite those three explicit statutory provisions, today the majority denies the prevailing party in this civil rights action, based on a claim of unlawful employment discrimination by a public body, costs and reasonable attorney fees awarded at trial and on appeal.
Plaintiff brought this civil action for damages under ORS 659.12K2)1 against Tri-County Metropolitan Transportation District of Oregon (Tri-Met). In his Fourth Amended Complaint, on which this case was tried and on which plaintiff prevailed, plaintiff asserted a single claim of employment discrimination under ORS 659.425(1),2 i.e., that Tri-Met had *517discriminated against him because of “his physical handicap of HIV infection.” Relying on the requirements of ORS 18.570, Or Laws 1987, ch 774, § 7a, the trial court instructed the jury that damages, if awarded, would be on the basis of economic and noneconomic losses.3 The verdict form identified damages in that fashion.4 The jury returned a verdict awarding plaintiff $255,000 in economic damages and $245,000 in noneconomic damages, for a total of $500,000 in compensatory damages. The trial court ruled that the $100,000 liability limitation in the pre-1989 version of ORS 30.270(1)(b),5 not the 1989 version of ORS 30.270(l)(b)6 of the Oregon Tort Claims Act (OTCA), applied to plaintiffs recovery. The trial court reduced plaintiffs judgment from $500,000 to $100,000. The trial court further held that the *518$100,000 monetary liability limitation in the pre-1989 version of ORS 30.270(l)(b) did not apply to costs and reasonable attorney fees. Accordingly, the trial court awarded plaintiff $7,461.40 in costs and $279,035.30 in attorney fees.
Tri-Met appealed to the Court of Appeals, assigning as error, inter alia, the trial court’s award of costs and attorney fees to plaintiff in excess of the $100,000 monetary liability limitation in the pre-1989 version of ORS 30.270(l)(b). The Court of Appeals affirmed the trial court’s judgment, holding, inter alia, that “awards of attorney fees and costs were not intended to be included within the liability limit in OTCA.” Griffin v. Tri-Met, 112 Or App 575, 584, 831 P2d 42 (1992).
Tri-Met petitioned this court for review. While that petition was pending before this court, the Court of Appeals entered an order awarding plaintiff $55,496.75 in costs and disbursements and attorney fees on appeal. Tri-Met filed a second petition for review, assigning as error the Court of Appeals’ award of costs and attorney fees on appeal. This court allowed both petitions for review. The majority now reverses the order of the Court of Appeals and the judgment of the trial court, which allowed plaintiff costs and disbursements and attorney fees. The majority holds:
“[I]n this case, Tri-Met’s total liability to plaintiff for damages and attorney fees and costs could not exceed the $100,000 limit in [the pre-1989 version of ORS 30.270(l)(b)]. It follows that the trial court erred in awarding plaintiff attorney fees and costs in excess of the $100,000 already awarded to plaintiff as damages. Similarly, the Court of Appeals erred in affirming the trial court’s award of attorney fees and costs.
“The foregoing logic applies with equal force to the award to plaintiff by the Court of Appeals of attorney fees, costs, and disbursements on appeal. Under [the-pre 1989 version of ORS 30.270(l)(b)], Tri-Met’s total liability to plaintiff in this case cannot exceed $100,000. The trial court reached that limit when it entered judgment in favor of plaintiff for $100,000 in damages. It follows that Tri-Met could not be subjected to any further award of attorney fees, costs, or disbursements by the Court of Appeals.” 318 Or at 515.
*519Because I find the majority’s analysis and its holding objectionable on several grounds, I cannot join the majority’s opinion.
I conclude that awards of costs and reasonable attorney fees to the prevailing party in a civil rights action, in which a person claims to be aggrieved by a violation of ORS 659.425(1), were not intended.to be included within the monetary liability limitation of the OTCA.
To support its result, the majority’s reasoning might be expressed in five holdings. First, an unlawful employment practice by Tri-Met, specifically handicap discrimination in violation of ORS 659.425(1), is a “tort” subject to the provisions of the OTCA. Second, the $100,000 liability limitation in the pre-1989 version of ORS 30.270(1)(b), and not the monetary liability limitation in the 1989 version of ORS 30.270(l)(b), applies to plaintiffs civil rights action against Tri-Met. Third, the $100,000 liability limitation in the pre-1989 version of ORS 30.270 refers to the total amount of money that Tri-Met must pay to plaintiff, who prevailed in this action. Fourth, the $100,000 liability limitation applies not only to an award of damages against a public body, but also to an award of costs and reasonable attorney fees. Finally, the trial court and the Court of Appeals erred in awarding costs and reasonable attorney fees to plaintiff because a money judgment in the amount of $100,000 for damages already had been entered for plaintiff against TriMet. I explain my disagreement with each of those holdings in turn.
My first disagreement concerns the majority’s holding that plaintiffs civil rights action for damages for unlawful employment discrimination in violation of ORS 659.425(1) is a ‘ ‘tort” within the meaning of the OTCA. This case was tried in the trial court and argued in the Court of Appeals on the assumption by the parties that the OTCA applied to plaintiffs unlawful discrimination action. Neither plaintiff nor Tri-Met raised, briefed, or addressed this issue in the trial court, in the Court of Appeals, or in this court. The argument that plaintiffs civil rights action was not subject to the OTCA was raised on review by amicus curiae Oregon Trial Lawyers Association in this court. Until the issue is properly before this court, fully briefed and argued, we should not address it *520or express any opinion concerning it. Moreover, even if an unlawful employment practice in violation of ORS 659.425(1) is a ‘ ‘tort,' ’ as the majority holds, it does not necessarily follow that such an unlawful employment practice is a tort within the scope of the OTCA.7
My next disagreement concerns the majority’s analysis in reaching its conclusion that the monetary liability limitation in the pre-1989 version of ORS 30.270 applies to plaintiffs claim. The majority reasons:
“As noted, the 1987 amendments to ORS 30.275 apply ‘only to claims that accrue on or after January 1, 1989.’ (Emphasis supplied.) Here, plaintiff has asserted a single claim of employment discrimination. The question, therefore, is whether that claim ‘accrued’ on or after January 1, 1989. ‘When used with reference to a cause of action [the word “accrue”] means when an action may be maintained thereon. [The claim] accrues whenever one person may sue another.’ Berry v. Branner, 245 Or 307, 312, 421 P2d 996 (1966) (emphasis deleted).
“Plaintiffs fourth amended complaint alleges instances of discrimination by Tri-Met beginning in October 1987 and continuing through his allegedly unlawful termination in December 1989. Plaintiff contends that his claim did not accrue until his termination in December 1989. Accordingto the complaint, however, plaintiff filed a parallel discrimination claim with the Bureau of Labor and Industries in 1988. Moreover, plaintiff filed his first complaint in the present *521action in February 1989. We need not decide which of the discriminatory events alleged by plaintiff caused his claim to accrue. It is sufficient here to hold that the claim had accrued at least by the time plaintiff filed his complaint with the Bureau of Labor and Industries; plaintiff’s termination in December 1989 was not essential to the accrual of his claim. It follows that the pre-1989 version of ORS 30.270 applies to this case.” 318 Or at 505-06 (emphasis added) (bracketed material in original).
I find the highlighted portions of the majority’s reasoning confusing and circular.
I agree with the majority that plaintiff has asserted a single claim of handicap discrimination under ORS 659.425(1). That one claim of relief seeks damages based on alleged instances of discrimination by Tri-Met.8 That is how the case was tried and submitted to the jury, and that is what plaintiff proved. According to the allegations in paragraph 4 of plaintiffs Fourth Amended Complaint, the instances of discrimination began in October 1987. The discriminatory acts did not end until “on or about December 2, 1989,” the date that plaintiff was unlawfully terminated “from further employment at Tri-Met, despite the fact that he could have *522performed the work of dispatcher with reasonable accommodation.”9 Without any statutory construction as to the meaning of the word “accrue” intended by the legislature in Oregon Laws 1987, chapter 915, section 14, and with scant analysis and discussion, the majority simply concludes that plaintiffs claim accrued when plaintiff filed his initial complaint with the Bureau of Labor and Industries. That initial complaint was filed in June 1988, about one and one-half years before defendant terminated plaintiff unlawfully in December 1989. The majority does not discuss what significance, if any, the alleged discriminatory act (plaintiffs termination), which occurred after the 1989 version of ORS 30.270(1)(b) was in effect, has in deciding whether the pre-1989 version of ORS 30.270(1)(b) or the 1989 version of ORS 30.270(1)(b) is applicable to plaintiffs single claim of handicap discrimination.
If the 1989 version of ORS 30.270(l)(b) were held to apply to plaintiffs claim, then the majority suggests that it would reach a different result in this case. The majority recognizes that in enacting the 1989 version of ORS 30.270(l)(b), the legislature expressly intended the limit on “liability” to the amount of recoverable damages, and not to costs and disbursements and reasonable attorney fees.10 The majority states:
“[T]he present [1989] version of ORS 30.270(l)(b) expressly provides that ‘[[liability of any public body * * * on claims within the scope of [the OTCA] shall not exceed * * * $100,000 to any claimant as general and special damages.” 318 Or at 509 & n 7 (emphasis and omissions in original).
My next disagreement concerns what the majority identifies as the “central issue in the case,” i.e., whether the monetary liability limitation in the pre-1989 version of ORS 30.270(1)(b) includes not only damages, but also costs and *523reasonable attorney fees. 318 Or at 507.11 After purportingto use the methodology for interpreting a statute to discern the intent of the legislature that this court articulated in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), the majority concludes that the legislature intended the pre-1989 version of ORS 30.275(l)(b) to limit “the amount of money [not recoverable damages, as plaintiff argues] that a public body must pay to a claimant as the result of any ‘single accident or occurrence’ that constitutes a ‘tort’ within the meaning of the OTCA.” 318 Or at 508 (emphasis added). Consequently, the majority concludes that the legislature intended the $100,000 limit on liability in the pre-1989 version of ORS 30.270(1)(b) of the OTCA to include an award of costs and reasonable attorney fees. Because the methodology and reasoning used by the majority to determine the legislative intent on this issue is flawed, the majority reaches the wrong conclusion.
The OTCA, ORS 30.260 to 30.300, permits tort actions against public bodies. ORS 30.260(8) defines a “tort” for the purposes of the OTCA as “the breach of a legal duty * * * which results in injury * * * [and] for which the law provides civil right of action for damages or for a protective remedy.” ORS 30.265 contains a general waiver of sovereign immunity from tort liability with certain restrictions12 and makes a public body “subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties.” ORS 30.270 sets monetary liability limitations on that waiver.
Assuming, arguendo, that the monetary liability limitations in the pre-1989 version of ORS 30.270(l)(b) apply to *524plaintiffs civil rights action seeking the special statutory remedy provided in ORS 659.121(2), the question then is to what do those limitations apply.
In interpreting a statute, the court’s task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, supra, 317 Or at 610. To do that, this court begins by scrutinizing both the text and the context of the statute. Id. at 610-11. In this first level of analysis, the court considers the context of the statutory provision at issue, which includes other provisions of the same statute and related statutes. Id. at 611. Also included are rules of construction that bear directly on the interpretation of the statutory provision in context, such as the canon that we read statutes “in pari materia” — “on the same subject.” Statutory provisions on the same subject are construed together. ORS 174.010; State of Oregon v. Buck, 200 Or 87, 93, 262 P2d 495 (1953).13
By focusing only on the text of the pre-1989 version of ORS 30.270(1)(b), and without considering the other subsections of the pre-1989 version of ORS 30.270, the majority states that the pre-1989 version of ORS 30.270(1)(b)
“provides that ‘[l]iability * * * shall not exceed * * * $100,000.’ The statute does not refer to ‘damages’ at all. Had the legislature intended the limit on ‘liability’ to apply only to liability for tort damages, it could have said so.” 318 Or at 508-09.
The majority then concludes that the legislature intended the monetary liability limitations in the pre-1989 version of ORS 30.275(l)(b) to refer to the “amount of money that a public body must pay to a claimant as the result of any ‘single accident or occurrence.’ ” 318 Or at 508.
Examination and consideration of the text of the pre-1989 version of ORS 30.270(1)(b) with the other subsections of the pre-1989 version of ORS 30.270, however, indicate a legislative intent to limit “liability” to the amount of *525recoverable damages. The pre-1989 version of ORS 30.270 provided:
“(1) Liability of any public body or its officers, employes or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:
“(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.
“(b) $100,000 to any claimant for all other claims arising out of a single accident or occurrence.
“(c) $300,000 for any number or claims arising out of a single accident or occurrence.
“(2) No award of damages on any such claim shall include punitive damages. The limitation imposed by this section on individual claimants includes damages claimed for loss of services or loss of support arising out of the same tort.
“(3) Where the amount awarded to or settled upon multiple claimants exceeds $300,000, any part may apply to any circuit court to apportion to each claimant a proper share of the total amount limited by subsection (1) of this section. The share apportioned each claimant shall be in the proportion that the ratio of the award or settlement made to the claimant bears to the aggregate awards and settlements for all claims arising out of the occurrence.
“(4) Liability of any public body and one or more of its officers, employes or agents, or two or more officers, employes or agents of a public body, on claims arising out of a single accident or occurrence, shall not exceed in the aggregate the amounts limited by subsection (1) of this section.
“(5) For any claim arising in connection with a nuclear incident, no provision of this section shall limit the amount of damages recoverable for injuries or death or loss of or damage to property, or loss of use of property as a result of a nuclear incident covered by an insurance or indemnity agreement under 42 U.S.C. 2210.” (Emphasis added.)
Subsection (1) of the pre-1989 version of ORS 30.270 reads much like a liability limitations clause in an insurance policy. The monetary liability limitations are:
*526(a) “Damage to or destruction of property” - per claimant/per single accident or occurrence: $50,000. No matter how many items of property of one claimant are damaged in a single accident or occurrence, the most a successful claimant can recover is $50,000. Consequential damages are included in the limit if there is property damage or destruction.
(b) “[A]ll other claims” - per claimant/per single accident or occurrence: $100,000. Again, no matter how many claims other than for property damage or destruction of property and damages consequent thereto the plaintiff may suffer as a result of a single accident or occurrence, recovery is limited to $100,000.
(c) “[A]ny number of claims” - per single accident or occurrence only: $300,000.
Subsection (2) expressly states that “[n]o award of damages on any such claim shall include punitive damages. The limitation imposed by this section on individual claimants includes damages claimed for loss of services or loss of support arising out of the same tort.” (Emphasis added.)
Subsection (4) prohibits multiplying the monetary liability limitations by the number of individual defendants for whom the public body is liable.
Subsection (5) provides that “no provision of this section [the pre-1989 version of ORS 30.270] shall limit the amount of damages recoverable” for certain losses resulting from certain nuclear incidents. (Emphasis added.)
The language in subsection (5), which states that “no provision of this section shall limit the amount of damages recoverable” for certain losses as a result of certain nuclear incidents, supports the conclusion that the legislature intended the $50,000, $100,000, and $300,000 liability limitations to refer to the amount of recoverable damages.
In at least three prior cases, this court has considered issues involving the pre-1989 version of ORS 30.270. In each case, this court has specifically referred to the monetary liability limitations contained in the statute as “damages limitation.” In Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989), the issue before this court was whether the *527monetary liability limitations of the pre-1989 version of ORS 30.270(l)(b) were constitutional as applied to cities and port districts. On at least nine occasions in the majority opinion in Hale, this court characterized the monetary liability limitations in that statute as “damage limitations.” Id. at 511, 512, 524 n 10, and 526.
In Rogers v. Saylor, 306 Or 267, 760 P2d 232 (1988), this court was asked to decide whether the limitations on individual and governmental liability contained in the OTCA, most specifically the pre-1989 version of ORS 30.270, applied to an action that stated a claim under the federal civil rights act, 42 USC § 1983, when that federal claim was brought in state court. In holding that they did not, this court referred to the monetary liability limitations on individual and governmental liability in the pre-1989 version of ORS 30.270 as “damages limitations.” 306 Or at 272 (emphasis added). See also Nutbrown v. Munn, 311 Or 328, 339, 811 P2d 131 (1991) (referring to “the damage limitations provisions of the Oregon Tort Claims Act”).14
In my view, because the text and context of the pre-1989 version of ORS 30.270 show a clear legislative intent, i.e., that the monetary liability limitations refer to the amount of recoverable damages, resort to legislative history is unnecessary. PGE v. Bureau of Labor and Industries, supra, 317 Or at 611. Even if inquiry into legislative history were necessary to determine the monetary liability limitations in the pre-1989 version of ORS 30 270, the paucity of legislative history noted by the majority does not support the majority’s conclusion. The majority apparently concedes that, because in the final analysis the majority rests its decision on OTCA’s policy governing the amount of liability of government for its torts. 318 Or at 514.
Having concluded that the monetary liability limitations in the pre-1989 version of ORS 30.270 refer to the amount of recoverable damages, I turn next to the question whether “recoverable damages” include costs and disbursements and reasonable attorney fees. The short and unequivocal answer is *528that they do not. ORS 20.107 provides that “a complaining party who prevails in a final judgment on a claim of illegal discrimination” has the right to recover “costs and disbursements, including attorney * * * fees reasonably and necessarily incurred in connection with the discrimination claim.” (Emphasis added.) “Costs and disbursements” are defined as “reasonable and necessary expenses incurred in the prosecution or defense of an action.” ORCP 68 A(2). “Attorney fees” are “the reasonable value of legal services related to the prosecution or defense of an action.” ORCP 68 A(1). ORCP 68 C(4)(a) provides in part:
“A party seeking attorney fees or costs and disbursements shall, not later than 14 days after entry of judgment pursuant to Rule 67:
“C(4)(a)(i) File with the court a signed and detailed statement of the amount of attorney fees or costs and disbursements * * (Emphasis added.)
Costs and disbursements and attorney fees are “add-ons,” rather than part of the claim for relief. Damages, on the other hand, are the sum of money that may be awarded as a consequence of the injury or loss suffered by the party seeking redress.15
The conclusion reached by the majority frustrates the important policy objectives of the Oregon civil rights law and related statutes. ORS chapter 659 embodies a separate statutory scheme — the Oregon civil rights law — which applies to public bodies as well as to private entities. ORS 659.010(6). The parties agree that Tri-Met is an “employer” *529subject to the provisions of ORS chapter 659. Under the civil rights law, discrimination against a disabled person in employment is an unlawful employment practice under ORS 659.425(1). Any person claiming to be aggrieved by a violation of ORS 659.425(1) “may file a civil action in circuit court to recover compensatory damages or $200, whichever is greater, and punitive damages.”16 ORS 659.121(2).
In a civil action based on a claim of unlawful employment discrimination, “the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal.” Id. ORS 20.107 also concerns civil actions based on claims of illegal discrimination in violation of state statute. Subsection (1) of that statute gives “a complaining party who prevails in a final binding judgment on a claim of illegal discrimination in violation of * * * statute” a right to recover “costs and disbursements, including attorney and expert witness fees reasonably and necessarily incurred in connection with the discrimination claim, at the trial court * * * and on appeal.”17 (Emphasis added.)
ORS 20.130 provides in part:
“In all actions * * * defended in the name and for the use of the state, or any county or other public corporation therein, the state or public corporation is liable for * * * costs and disbursements in like manner and with like effect as in the case of natural persons.” (Emphasis added.)
In a civil rights action against a public body, based on a claim of unlawful discrimination in violation of ORS 659.425(1) of the Oregon civil rights law, three statutes, ORS 659.121(2), ORS 20.107, and ORS 20.130, serve as an express waiver of sovereign immunity as to “costs and disbursements and reasonable attorney fees.”
The legislature’s objective in enacting the Oregon civil rights law is expressly declared to be the removal of discriminatory barriers as against any inhabitant of this state. ORS 659.020; ORS 659.022. To accomplish that objective, the legislature expressly recognized the need to provide “[a]n adequate remedy for persons aggrieved by certain acts *530of discrimination.” ORS 659.022(2). (Emphasis added.) As the majority in this case recognizes, one obvious purpose of ORS 659.121 and ORS 20.107 “ ‘is to ameliorate the financial burdens associated with litigation to vindicate’ ” the right of any inhabitant of this state not to be discriminated against unlawfully. 318 Or at 514 (quoting Griffin v. Tri-Met. supra, 112 Or App at 584).
Often, in the civil rights context, impecunious plaintiffs can ill afford to litigate their legitimate claims against defendants with more resources. The legislature sought to redress this balance in part and to provide incentives for bringing meritorious lawsuits. If successful plaintiffs are required to pay their own costs and attorney fees, few aggrieved parties would be in a position to advance the public interest in ensuring compliance with the Oregon civil rights law. If a plaintiff obtains a judgment, he or she does so, not only for himself or herself alone, but also as a “private attorney general” vindicating a policy that the legislature considered to be of a high priority.
On the other hand, the legislature sought to discourage nonmeritorious civil actions by allowing the court to award “the prevailing party [the civil rights plaintiff or defendant] costs and reasonable attorney fees at trial and on appeal.” ORS 659.121(2). Thus, successful plaintiffs are treated no differently than successful defendants as to the entitlement of costs and disbursements and reasonable attorney fees. The legislature sought to relieve the prevailing civil rights plaintiff or defendant from the expenses — “costs and disbursements and reasonable attorney fees” — of prosecuting or defending a discrimination claim.
The majority in this case states that it is “unwilling to attribute to the legislature an intent — never expressed anywhere — to waive the OTCA limits on this single form of wrong out of all the kinds of wrongs that could be committed by governmental bodies,” 318 Or at 514. Curiously, the majority states: ‘.‘If a future legislature disagrees” with the majority’s policy choice in this case, “it has the ability to alter that choice.” Id. In making those statements, the majority disregards what it recognizes elsewhere, that the legislature, in enacting the 1989 (present) version of ORS 30.270, *531intended to limit the monetary liability limitations in ORS 30.270 to general and special damages.
In sum, I would hold that the monetary liability limitations in the pre-1989 version of ORS 30.270 refer to “recoverable damages,” that costs and disbursements and reasonable attorney fees are not subject to the monetary liability limitations in the OTCA, and that the legislature has waived sovereign immunity as to costs and disbursements and reasonable attorney fees in a civil rights action based on a claim of illegal discrimination.
For the foregoing reasons, I respectfully dissent.
Van Hoomissen, J., joins in this dissenting opinion.
ORS 659.121(2) provides:
“Any person claiming to be aggrieved by alleged violations of ORS 659.033(1) or (3), 659.295 or 659.400, 659.405, 659.410(1), 659.415 to 659.435 and 659.550 may file a civil action in circuit court to recover compensatory damages or $200, whichever is greater, and punitive damages. In addition, the court may award relief authorized under subsection (1) of this section and such equitable relief as it considers appropriate. At the request of any party, the trial of such case shall be by jury. In any action brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal. Any attorney fee agreement shall be subject to approval by the court.”
ORS 659.425(1) provides:
“For the purpose of ORS 659.400 to 659.460, it is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because:
“(a) An individual has a physical or mental impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved;
“(b) An individual has a record of a physical or mental impairment; or
“(c) An individual is regarded as having a physical or mental impairment.
ORS 18.570 provides in part:
“A verdict shall set forth separately economic and noneconomic damages, if any, as defined in ORS 18.560.”
ORS 18.560(2) provides in part:
“(a) ‘Economic damages’ means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.
“(b) ‘Noneconomic damages’ means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.”
The pre-1989 version of ORS 30.270 is set out infra in the text of this opinion.
The 1989 version of ORS 30.270 provides in part:
“(1) Liability of any public body or its officers, employees or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:
“(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.
“(b) $100,000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $100,000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed $100,000.
“(c) $500,000 for any number of claims arising out of a single accident or occurrence.”
It is by no means clear that the legislature, in enacting the Oregon civil rights law, which permits a civil action against a public body for unlawful employment practices, intended all such civil actions to be subject to the OTCA. Indeed, ORS 659.160(1) of the Oregon civil rights law provides in part:
“Any person claiming to be aggrieved by unlawful discrimination in higher education as prohibited by ORS 659.150 may file a civil action in circuit court for equitable relief or, subject to the terms and conditions of ORS 30.265 to 30.300 [the OTCA], damages, or both.” (Emphasis added.)
What is the significance, if any, of the legislature’s failure to similarly refer to the OTCAin ORS 659.121(2), which, as previously stated, provides a civil rights action to a person — such as plaintiff in this case — who claims to be aggrieved by an alleged violation of ORS 659.425(1)? Does the failure of the legislature to expressly make an action brought under ORS 659.160(1) of the Oregon civil rights law subject to the OTCA create an inference that the legislature intended an action brought under another provision of the Oregon civil rights law, e.g., ORS 659.121(2), not be subject to the OTCA? “Ordinarily, when the legislature includes an express provision in one statute, but omits such a provision in another statute, it may be inferred that such omission was deliberate.” Oregon Business Planning Council v. LCDC, 290 Or 741, 749, 626 P2d 350 (1981).
After the trial court’s rulings on plaintiffs and Tri-Met’s motions at the close of the evidence, Paragraph 4 of Plaintiffs Fourth Amended Complaint read:
“During and after October 1987, Tri-Met, through its General Manager, James Cowen, and its supervisors, took actions including:
“a. Continuously scrutinizing plaintiffs work more closely than that of other dispatchers to increase his level of stress and accelerate his illness;
“b. [The trial court struck paragraph bl;
“c. Continuously retaining and referring to old discipline records in violation of a grievance settlement;
“d. On November 30, 1988, attempting to discipline plaintiff again for noting the anniversary of the assassination of John F. Kennedy on a message on his computer terminal;
“e. In November 1988, attempting to cut off plaintiff, who was known to be ill, from necessary health care, by canceling plaintiff s health insurance benefits and failing to reinstate them as required by the arbitrator, leaving plaintiff without insurance coverage for his health care and medieations[;l
“f. On or about December 2, 1989, terminating plaintiff from further employment at Tri-Met, despite the fact that he could have performed the work of dispatcher with reasonable accommodation;
“g. Other actions in which plaintiff was treated differently than his fellow employees after January 6,1988.” (Emphasis added.)
To satisfy the requirements of ORS 30.275, on December 7, 1989, plaintiff gave the required notice of his claim stated in paragraph 4(f) of the fourth amended complaint.
It should be noted that neither ORS 659.121(2) nor the 1989 version of ORS 30.270(1)(b) places a limit on the amount of costs and disbursements and reasonable attorney fees that may be awarded to the prevailing party in a civil rights action based on a claim of unlawful employment discrimination in violation of ORS 659.425(1).
Of course, if the 1989 version of ORS 30.270(1)(b) applies to plaintiffs claim, even the majority might well conclude that the monetary liability limitation in that statutory provision does not include awards of costs and reasonable attorney fees.
The Oregon Constitution is framed on the premise that the state is immune from suit and that if immunity is waived it shall be done by the action of the legislature. Vendrell v. School District No. 26C et al, 226 Or 263, 278, 360 P2d 282 (1961). Article IV, section 24, of the Oregon Constitution provides in part:
“Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution * * *.”
The state partially waived its sovereign immunity by general law when it enacted the OCTA. Hale v. Port of Portland, 308 Or 508, 517, 783 P2d 506 (1989).
Another canon is that “although statutes are not strictly in pari materia, yet, if they relate to the same matter, persons or things, or the same class of persons or things, or are closely allied to the same subject or object, they may be construed together.” State of Oregon v. Buck, 200 Or 87, 93-94, 262 P2d 495 (1953).
The author of the majority opinion in the present case was the author of the majority opinion in Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989), and the court’s opinion in Nutbrown v. Munn, 311 Or 328, 811 P2d 131 (1991).
The OTCA was based on Minnesota’s tort claims act. Beaver v. Pelett, 299 Or 664, 672, 705 P2d 1149 (1985). See also Lansing, The King Can Do Wrong! The Oregon Tort Claims Act, 47 Or L Rev 357, 359 (1968) (discussing history of OTCA). When an Oregon statute is modeled on a statute from another jurisdiction, this court views cases from that jurisdiction interpreting the law as persuasive in interpreting the Oregon statute. Redmond Ready-Mix, Inc. v. Coats, 283 Or 101, 110, 582 P2d 1340 (1978).
The Minnesota Supreme Court, in interpreting the monetary liability limitations of the Minnesota Tort Claims Act, has held that costs and disbursements are not covered by the monetary liability limitations cap because “costs and disbursements are not part of the claim for compensation for personal injury; they are reimbursement of the expense of litigating the claim.” Lienhard v. State, 431 NW2d 861, 864 (Minn 1988). Despite being unable to discern legislative intent from the text, context, or legislative history of the pre-1989 version of ORS 30.270, the majority in this case docs not oven acknowledge the decisional law of Minnesota interpreting the provisions on which the OTCA was modeled.
The OTCA forbids the recovery of punitive damages. See ORS 30.270(2).
ORS 20.107(4) provides that such an award against a "state agency” shall be paid “directly from funds available to [the agencyl.”