Marshall v. PricewaterhouseCoopers, LLP

536 November 28, 2023 No. 32
32

371 Or

Marshall v. PricewaterhouseCoopers, LLP

2023

November 28, 2023

IN THE SUPREME COURT OF THE
STATE OF OREGON

John M. MARSHALL
and Karen M. Marshall, individuals;
Patsy L. Marshall, an individual;
Patsy L. Marshall, as Personal Representative
of the Estate of Richard L. Marshall, Deceased;
and Marshall Associated, LLC,
an Oregon limited
liability corporation,
Respondents on Review,
v.
PRICEWATERHOUSECOOPERS, LLP,
a limited liability partnership,
Defendant,
and
SCHWABE WILLIAMSON & WYATT, P.C.,
an Oregon professional corporation,
Petitioner on Review.
(CC 17CV11907) (CA A169635) (SC S069442)

On review from the Court of Appeals.*
Argued and submitted November 29, 2022.
Janet M. Schroer, Hart Wagner, LLP, Portland, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs was Matthew J. Kalmanson, Portland.
Scott F. Hessell, Sperling & Slater, P.C., Chicago, Illinois,
argued the cause for respondents on review. John J. Dunbar,
Dunbar Law LLC, Portland, filed the brief for respondents
on review. Also on the brief was Scott F. Hessell, Chicago.
Kristen G. Williams, Williams Weyand Law, LLC,
McMinnville, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
______________
* Appeal from Multnomah County Circuit Court, Jerry B. Hodson, Judge.
316 Or App 416, 505 P3d 40 (2021).
Cite as 371 Or 536 (2023) 537

Laura E. Coffin, Luvaas Cobb, Eugene, filed the brief for
amicus curiae Professional Liability Fund.
Before Flynn, Chief Justice, and Duncan, Garrett, James
and Masih, Justices, and Kistler and Walters, Senior Judges,
Justices pro tempore.**
FLYNN, C.J.
The decision of the Court of Appeals is reversed, and the
case is remanded to the Court of Appeals for consideration
of plaintiffs’ second assignment of error.
James, J., dissented and filed an opinion. Masih, J., dis-
sented and filed an opinion.

______________
** Balmer, J., retired December 31, 2022, and did not participate in the deci-
sion of this case. Nelson, J., resigned February 25, 2023, and did not participate
in the decision on this case. DeHoog and Bushong, JJ., did not participate in the
consideration or decision of this case.
538 Marshall v. PricewaterhouseCoopers, LLP

FLYNN, C.J.
Under ORS 12.115(1), “[i]n no event shall any action
for negligent injury to person or property of another be com-
menced more than 10 years from the date of the act or omis-
sion complained of.” At issue in this case is whether that stat-
ute applies to actions in which the plaintiffs allege that their
attorney negligently caused injury consisting solely of finan-
cial loss—here, the cost to plaintiffs of attempting to defend
themselves against a claim for unpaid federal taxes and
the anticipated cost of paying that tax liability. As we will
explain, we conclude that the legislature intended the phrase
“negligent injury to person or property” in ORS 12.115(1) to
include negligence claims seeking to recover for the kind of
injury to economic interests that plaintiffs have alleged.
BACKGROUND
In this action, which was filed in 2017, plaintiffs
alleged that defendant law firm had negligently advised
plaintiffs—in 2003—regarding potential tax ramifications
of a proposed business transaction.1 Plaintiffs also alleged
that, as a result of that negligent advice, they had incurred
over $2 million in legal fees defending an Internal Revenue
Service claim for back taxes related to the transaction and
that they expected to incur approximately $20 million in
liability for back taxes, penalties, and interest. Defendant
moved to dismiss plaintiffs’ negligence claim, contending
that the pleadings showed that the claim was time-barred
under ORS 12.115(1). See ORCP 21 A(1)(i) (providing that a
defendant may raise by motion a defense “that the pleading
shows that the action has not been commenced within the
time limited by statute”).2 The trial court granted defen-
dant’s motion and entered a limited judgment, from which
plaintiffs appealed.3
The Court of Appeals reversed the limited judg-
ment, concluding that the statutory phrase “negligent injury
1
Plaintiffs also named as a defendant their accounting firm for the transac-
tion, PricewaterhouseCoopers, but that defendant is not a party to this appeal.
2
At the time when defendant filed its motion, the provision now set out at
ORCP 21 A(1)(i) was numbered ORCP 21 A(9).
3
Plaintiffs’ complaint alleged other claims that the limited judgment did not
address and are not at issue before this court.
Cite as 371 Or 536 (2023) 539

to person or property” does not encompass plaintiffs’ claim
because the injury alleged was for purely financial losses.
Marshall v. PricewaterhouseCoopers, LLP, 316 Or App 416,
432, 441, 505 P3d 40 (2021). We allowed review and now
conclude that the trial court correctly concluded that ORS
12.115(1) applied to the type of claim alleged by plaintiffs.
Accordingly, we reverse the decision of the Court of Appeals
and remand for that court to address plaintiffs’ remaining
assignment of error.4
ANALYSIS
Defendant challenges the conclusion of the Court of
Appeals that plaintiffs’ claim for negligent legal represen-
tation is not subject to the time limitation imposed by ORS
12.115(1), a so-called statute of ultimate repose. As we have
explained, statutes of repose are enacted by the legislature
to supplement statutes of limitation. Statutes of limitation
“limit the time a party has to initiate an action once a claim
has accrued”—a concept that means that a statute of limita-
tions “[g]enerally * * * does not begin to run until the injured
party knows or should know that it has been injured.” Shasta
View Irrigation Dist. v. Amoco Chemicals, 329 Or 151, 161,
986 P2d 536 (1999) (internal quotation marks and brackets
omitted; emphasis added). And statutes of repose supple-
ment that somewhat unpredictable approach to the time that
a party will have to initiate an action, by setting “maximum
times to file a claim, regardless of the date of discovery of an
injury or other circumstances that may affect the expiration
of a statute of limitations.” Id. at 162. We have described stat-
utes of repose as reflecting “the public policy of allowing peo-
ple, after the lapse of a reasonable time, to plan their affairs
with a degree of certainty, free from the disruptive burden of
protracted and unknown potential liability.” Johnson v. Star
Machinery Co., 270 Or 694, 701, 530 P2d 53 (1974).
The legislature enacted the statute of repose in
ORS 12.115(1) in 1967. Or Laws 1967, ch 406, § 2. The new
4
In the Court of Appeals, plaintiffs raised a second assignment of error that,
even if ORS 12.115 applies generally to claims for injury to economic interests,
the trial court nevertheless erred in concluding that it barred plaintiffs’ negli-
gence claim. In a footnote, the Court of Appeals observed that its construction of
the statute made it unnecessary to reach plaintiffs’ alternative, second assign-
ment of error. Marshall, 316 Or App at 418 n 1.
540 Marshall v. PricewaterhouseCoopers, LLP

statute was a reaction to this court’s 1966 decision in Berry
v. Branner, 245 Or 307, 421 P2d 996 (1966), which held that
a cause of action for medical malpractice involving a foreign
object left in the body did not “accrue,” for purposes of the
statute of limitations in ORS 12.010 (1965), “until the patient
knew or, in the exercise of reasonable care, should have
known of the injury inflicted upon her.” See Josephs v. Burns
& Bear, 260 Or 493, 496-99, 491 P2d 203 (1971), abrogated on
other grounds by Smothers v. Gresham Transfer, Inc., 332 Or
83, 23 P3d 333 (2001) (describing Berry v. Branner and his-
tory of ORS 12.115(1)). ORS 12.115(1), which has remained
unchanged since being enacted in 1967, provides:
“In no event shall any action for negligent injury to person
or property of another be commenced more than 10 years
from the date of the act or omission complained of.”
It is undisputed that plaintiffs’ claim is based on
conduct that occurred more than 10 years before plaintiffs
commenced the present action. It also is undisputed that
plaintiffs have alleged a negligence claim against defen-
dants. Thus, the only aspect of ORS 12.115(1) that is in
dispute before us is whether plaintiffs’ allegations of solely
financial loss describe the kind of “injury to person or prop-
erty” to which that statute applies. We resolve the parties’
dispute about the meaning of the statute by employing the
analytical framework described in PGE v. Bureau of Labor
and Industries, 317 Or 606, 859 P2d 1143 (1993), and modi-
fied in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). As
with all questions of statutory construction, our “paramount
goal” is to ascertain the intent of the legislature that enacted
the disputed provision, and we determine that intent by
examining the text, in context, as well as legislative history
“where that legislative history appears useful to the court’s
analysis.” Gaines, 346 Or at 171-72. The dispute here turns
on what types of negligence claims the legislature intended
to describe with the phrase “negligent injury to person or
property” in ORS 12.115(1).
In considering what the legislature intended a stat-
utory term to mean, it is helpful to understand how the term
is used. When considering the meaning of terms of common
usage, we ordinarily presume that the legislature intended
Cite as 371 Or 536 (2023) 541

their ordinary meaning. Id. at 175; PGE, 317 Or at 611
(explaining that “words of common usage typically should
be given their plain, natural, and ordinary meaning”). But
if the context or legislative history of a statute indicate that
the legislature intended a term to have a meaning “drawn
from a specialized trade or field,” so-called “terms of art,” we
consider “the meaning and usage of those terms in the dis-
cipline from which the legislature borrowed them.” Comcast
Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014).
When a term is drawn from the legal field, we often “look
to its established legal meaning as revealed by, for starters
at least, legal dictionaries.” Id. (internal quotation marks
omitted).
Here, both parties assert that the phrase “negligent
injury to person or property” has an established meaning
when used in the context of a legal action, and they presume
that the legislature intended the phrase to have its estab-
lished legal meaning. But they offer competing versions of
what the legislature understood that phrase to mean as a
legal “term of art.” According to defendant, in 1967, “injury
to person or property” was defined by contemporary legal dic-
tionaries as referring to civil injuries, generally—including
injury consisting of financial loss. Thus, defendant contends
that the legislature intended the phrase “negligent injury
to person or property” to reach negligence claims for injury
consisting of financial loss. According to plaintiffs, however,
Oregon case law gives the phrase “negligent injury to person
or property” a more specialized meaning that encompasses
“bodily injuries including their psychic consequences, and
physical damage to existing tangible property, but not finan-
cial losses.” (Emphases added.) They point to a concept that
has developed in this court’s case law to distinguish between
the types of injury for which everyone ordinarily is liable in
negligence and the type of injury for which liability depends
on a “source of duty outside the common law of negligence.”
See Hale v. Groce, 304 Or 281, 284, 744 P2d 1289 (1987)
(describing rule). Both parties are correct to an extent, but
defendant’s understanding of the phrase better reflects what
the 1967 legislature intended the statutory phrase to mean.
542 Marshall v. PricewaterhouseCoopers, LLP

Before explaining why defendant’s proposed mean-
ing of the phrase “negligent injury to person or property”
better captures the intent of the 1967 Legislative Assembly,
we pause to consider the parties’ premise that the legisla-
ture intended to use the phrase “negligent injury to person
or property” as a legal term of art. ORS 12.115(1) addresses
a legal concept—an outside limit on when a legal action for
negligence can be filed—meaning that the intended audi-
ence was those who would file, or defend against, a legal
negligence action. And in doing so, the legislature used
terms that had specific, established meanings in the legal
context. Thus, although many of the terms in the phrase
“negligent injury to person or property” might—in a differ-
ent context—also be terms of common usage, in the context
of ORS 12.115(1), we agree with the parties that the legisla-
ture most likely intended the terms to mean what they were
understood to mean in the legal field at the time.
Defendant is correct that, as used in the legal field
at the time, the phrase “negligent injury to person or prop-
erty” was commonly understood as reaching injury that con-
sisted of financial loss. In 1967, “injury” had an established
legal meaning of “[a]ny wrong or damage done to another,
either in his person, rights, reputation, or property.” Black’s
Law Dictionary 924 (4th ed 1951). And the phrase “[i]njuries
to person or property” was associated with the broad con-
cept of “civil injury,” which was defined as “[i]njuries to per-
son or property, resulting from a breach of contract, delict,
or criminal offense, which may be redressed by means of a
civil action.” Id.; see also Webster’s Third New Int’l Dictionary
1164 (unabridged ed 2002) (specifying that “injury,” when
used as a legal term, means “a violation of another’s rights
for which the law allows an action to recover damages or
specific property or both”; the term is “comprehensive,” and
it includes “an act or result involving an impairment or
destruction of right, health, freedom, soundness, or loss of
something of value”).
The term “property” had both a common usage and
a usage in the legal field, but both were similarly broad.
“Property” in the legal context was defined in contemporane-
ous authorities as including “everything which is the subject
Cite as 371 Or 536 (2023) 543

of ownership, corporeal or incorporeal, tangible or intangi-
ble, visible or invisible, real or personal * * * extend[ing] to
every species of valuable right or interest.” Black’s at 1382.
Common usage of the term “property” could be equally
broad.5 The common usages described by Webster’s included:
“[2] b : the exclusive right to possess, enjoy, and dispose of
a thing : a valuable right and interest primarily a source
or element of wealth : ownership * * * [and 2] c : something
to which a person has a legal title : an estate in tangible
assets (as lands, goods, money) or intangible rights (as
copyrights, patents) in which or to which a person has a
right protected by law.”
Webster’s at 1818.
As plaintiffs emphasize, however, we have cautioned
against relying solely on dictionary definitions to determine
the meaning of statutory terms “without critically exam-
ining how the definition fits into the context of the statute
itself.” State v. Gonzalez-Valenzuela, 358 Or 451, 461, 365
P3d 116 (2015). Thus, the fact that the legislature used a
phrase—“negligent injury to person or property”—that is
capable of including negligently caused injury to another
person’s economic interests does not preclude plaintiffs’
understanding that the 1967 Legislative Assembly used the
phrase “negligent injury to person or property” to capture a
more specialized, and more limited, category of injury.
The legislative history of ORS 12.115(1), however,
strongly suggests that the 1967 Legislative Assembly
intended the new negligence statute of repose to apply to
actions for negligent injury to a broad variety of property
interests. As indicated above, the legislature enacted the
statute of repose set out in ORS 12.115(1) in response to this
court’s decision in Berry that, for certain actions for medical
malpractice, the statute of limitations did not begin to run
until the injury was discovered or, in the exercise of rea-
sonable care, should have been discovered by the patient.
5
We agree with Justice James’s dissent that our cases have not articulated a
clear basis for determining whether the legislature intended to use a term of art
when the same term also appears in ordinary usage and that we must exercise
caution when the meaning of a statute could turn on that distinction. See 371 Or
at 558 (James, J., dissenting). But in this instance, labeling the term “property”
as either “common” or “legal” does not determine the meaning of the statute.
544 Marshall v. PricewaterhouseCoopers, LLP

See Josephs, 260 Or at 496-97. The holding in Berry “was
a reversal of previous case law which held that in such sit-
uations the cause of action accrued and the statute com-
menced to run at the time of the negligent act or omission,”
regardless of whether the plaintiff had become aware of the
negligently caused harm. Johnson, 270 Or at 699. Although
the legislature could have been satisfied with a policy that
allowed plaintiffs to timely pursue their negligence actions
whenever the harm was discovered, it favored a policy that
would set an outside cut-off date for liability arising from
negligently caused harm.
When initially introduced, the proposed legisla-
tion addressed only actions fitting the exact fact-pattern of
Berry—that is, “[a]n action to recover damages for injuries
to the person where in the course of any medical, dental,
surgical or other professional treatment or operation,” a
“foreign substance” was “negligently permitted to remain”
within the patient’s body. Senate Bill (SB) 134 (1967). For
such actions, the bill specified a two-year statute of limita-
tions based on the date of discovery, “provided that such
action shall be commenced within six years from the date
of the treatment or operation upon which the action is
based.” Id. In other words, as originally introduced, SB 134
expressly codified Berry’s holding that a discovery rule gov-
erns the statute of limitations for medical negligence actions
involving harm from a foreign object, but it combined that
with an outside limit—or statute of repose—on the time for
filing those actions. The Senate changed the outside limit
to seven years but otherwise passed the bill as introduced.
See Senate Judiciary Committee Report on SB 134 (Mar 22,
1967).
As we observed in Josephs, however, “it is apparent
from the legislative history that the members of the legisla-
ture recognized that the rationale of Berry might be equally
applicable to a host of other situations in which a defendant’s
negligence went understandably undetected until after the
pertinent statutes of limitation had expired.” 260 Or at 497-
98 (internal footnote omitted). We cited an exhibit in the
legislative history explaining that concern:
Cite as 371 Or 536 (2023) 545

“ ‘The Berry case appears to raise fundamental problems
in fields other than medical fields. If the Court is correct
regarding its meaning of the word “accrued,” the same rea-
soning might very well apply to mistakes of lawyers, engi-
neers, title companies, and others. Thus, if a lawyer makes
a mistake in giving an opinion as to the title to real prop-
erty to the average citizen and the citizen relies upon the
opinion and doesn’t discover the error [for] ten years, would
not the reasoning in the Berry case apply to litigation based
upon an alleged injury to the rights of another under ORS
12.110?’ ”
Id. at 497 n 2 (quoting “a letter from Attorney John J.
Coughlin to Attorney William Morrison under date of
January 25, 1967”).
It also is apparent that the legislature intended to
adopt an absolute time limitation that would apply to negli-
gence actions other than those at issue in Berry. Although,
as passed by the Senate initially, SB 134 set an outside
limit for filing only the type of negligence claim that clearly
would have been governed by Berry’s discovery-rule holding,
the scope of the bill changed when it moved to the House.
As we observed in Josephs, representatives expressed
concern—echoing the Coughlin exhibit quoted above—that
the Berry discovery-rule holding might be equally applica-
ble to extend the time for filing claims for other types of
professional malpractice “in which a defendant’s negli-
gence went understandably undetected until after the per-
tinent statutes of limitation had expired.” Id. at 497-98;
Tape Recording, House Committee on Judiciary, SB 134,
Apr 19, 1967, Tape 79 (remarks of Representative Wallace
Carson and Representative James Redden). And represen-
tatives specifically named architects, engineers, lawyers,
and accountants as professionals who might be liable under
the reasoning of Berry for negligence that “went under-
standably undetected until after the pertinent statutes of
limitation.” Josephs, 260 Or at 497-98; see Tape Recording,
House Committee on Judiciary, SB 134, Apr 6, 1967, Tape
72 (remarks of Representative James Redden, noting that
the issue raised in Berry might make professional insur-
ance more difficult to obtain and that it “does not deal with
546 Marshall v. PricewaterhouseCoopers, LLP

doctors alone,” giving examples including a “lawyer who
wrote a contract ten years ago”).
The House ultimately voted to amend the bill by
adding a provision that would have defined when an action
“accrued” for most actions in such a way that the statute of
limitations would run from the date “the act or omission
complained of occurred”—effectively making the statute of
limitations serve the same outside cut-off role as a statute
of ultimate repose.6 See Josephs, 260 Or at 499 (“It is clear
that the legislative committees which were dealing with the
problem of long delayed tort litigation brought about by lack
of discovery considered the possibility of defining the time
when a cause of action ‘accrued’ as a response to the Berry
decision.”); SB 134 (1967), -1 amendment (Apr 20, 1967). Thus,
although the Senate version of the bill would have enacted
a seven-year outside limit for filing negligence actions that
applied only to certain claims for medical negligence, the
House version would have ensured that the applicable stat-
ute of limitations served as an outside limit for filing virtu-
ally all actions at law. For an action “for any injury to the
person or rights of another, not arising on contract, and not
especially enumerated in” ORS chapter 12, the statute of
limitations was—and remains—two years. ORS 12.110(1).
The House and Senate then compromised on amend-
ments to SB 134 that “left the discovery rationale of Berry
intact, should this court subsequently choose to apply the
Berry rationale to torts other than medical malpractice, but
prescribed an ultimate [ten-year] cut-off date in any event
for the commencement of tort claims litigation.” Josephs,
260 Or at 499; see also id. (describing ORS 12.110(4) as
relating specifically to medical malpractice claims and ORS
12.115(1) as “relating generally to other tort claims”). That
history persuades us that the legislature intended to impose
an outside limit of ultimate repose for negligence actions
6
The version of the bill passed by the House added a proposed paragraph to
ORS 12.010, the general statute of limitations, for “[a]ctions at law” that “[t]he
cause of action shall be deemed to have accrued when the act or omission com-
plained of occurred unless otherwise directed by law,” but the House retained
the Senate’s discovery rule for medical negligence involving a “foreign sub-
stance”—“otherwise direct[ing]” when those actions accrued. House Judiciary
Committee Report on SB 134 (Apr 20, 1967).
Cite as 371 Or 536 (2023) 547

generally, and with a specific understanding that the limita-
tion would apply to negligence actions against other profes-
sionals, including lawyers. Indeed, plaintiffs acknowledge
that the legislature intended ORS 12.115(1) to apply to at
least some actions alleging that the plaintiff suffered injury
as a result of negligent legal representation.
That legislative history is difficult to reconcile
with what plaintiffs propose to be a legislative intent to
exclude from the new limitation any negligence action
alleging injury to economic interests, which has long been
understood to be a category of damages that a client may
recover in a negligence action against the client’s lawyer.
For example, as early as Currey v. Butcher, 37 Or 380, 384-
85, 61 P 631 (1900), this court held that the attorneys’ cli-
ent properly brought a negligence claim to recover financial
expenses caused by negligent performance of professional
duties because, “at common law[,] the injured party could
sue” either in contract for breach of the implied promise or
in tort for neglect of the duty. See also Onita Pacific Corp. v.
Trustees of Bronson, 315 Or 149, 160-62, 843 P2d 890 (1992)
(observing that the attorney-client relationship is one in
which the failure to exercise reasonable care permits recov-
ery of “economic losses,” but declining to permit recovery
of economic losses caused by negligent misrepresentation
in arm’s-length negotiations); Laux v. Woodworth, 169 Or
528, 529, 531, 129 P2d 290 (1942) (action to recover from
allegedly negligent attorney the amount that the plaintiff
believed she would have received by prevailing in the under-
lying action; claim rejected only because negligence allega-
tions were conclusory); Milton v. Hare et al., 130 Or 590, 596,
280 P 511 (1929) (action to recover for financial loss suffered
when attorneys negligently allowed default foreclosure judg-
ment to be taken and property sold; rejected because the
defendants’ negligence “was not the proximate cause of [the]
plaintiff’s loss”).
We presume that, when the legislature adopted an
ultimate repose limit that would apply to negligence claims
against lawyers, the legislature was aware that negligence
claims against lawyers commonly included claims for injury
consisting of purely financial loss. See, e.g., Montara Owners
548 Marshall v. PricewaterhouseCoopers, LLP

Assn. v. La Noue Development, LLC, 357 Or 333, 341, 353
P3d 563 (2015) (“The context for interpreting a statute’s
text includes the preexisting common law, and we presume
that the legislature was aware of that existing law.”). And
in compromising on a 10-year statute of repose that would
reach claims for negligent injury caused by lawyers, the leg-
islature used a term—“property”—that in both ordinary
and legal usage was understood to include “tangible assets”
such as money, and “intangible rights.” See Webster’s at
1818 (defining “property”); Black’s at 1382 (same). Absent
some specific indication that the legislature, nevertheless,
intended to treat claims for negligent injury to economic
interests more favorably than claims for negligent injury to
persons and physical property, the text, context, and legis-
lative history that we have examined point to a legislative
compromise that permitted all negligence claims to be gov-
erned by a “discovery” rule for purposes of the statute of
limitations and also subject to an outside limit on when the
claim can be brought. We turn to what plaintiffs and the
Court of Appeals identify as indications that the legislature,
nevertheless, intended to treat claims for negligent injury to
economic interests more favorably than claims for negligent
injury to persons and physical property.
The Court of Appeals identified different contex-
tual reasons to support its conclusion that the legislature
intended the phrase “injury to person or property” to have a
specialized, more limited, meaning when used in the phrase
“negligent injury to person or property” in ORS 12.115(1),
and plaintiffs urge us to follow that reasoning. That court
primarily relied on this court’s interpretation of a differ-
ent, later-enacted statute. See Marshall, 316 Or App at 427
(describing this court’s decision in Securities-Intermountain
v. Sunset Fuel, 289 Or 243, 247, 611 P2d 1158 (1980), as
“[o]f particular import”). In Securities-Intermountain, this
court examined ORS 12.135, which the 1971 Legislative
Assembly had enacted to impose new limits on the time for
filing “[a]n action to recover damages for injuries to a person
or to property” arising from “the construction, alteration,
or repair” of real property improvements. 289 Or at 246-
47. As we will explain, however, our analysis in Securities-
Intermountain of the 1971 legislature’s intent in enacting
Cite as 371 Or 536 (2023) 549

ORS 12.135 does not alter our understanding of the intent
of the 1967 legislature in enacting ORS 12.115.
At the time, ORS 12.135 specified that any action to
which it applied “shall be commenced within two years from
the date of such injury to the person or property; provided
that such action shall be commenced within 10 years from
substantial completion of such construction, alteration or
repair of the improvement to real property.” ORS 12.135(1)
(1980).7 The action in Securities-Intermountain involved a
general contractor’s claim against an architect and heating
contractor seeking “financial losses from alleged breaches
of contract” due to faulty installation of a defective heating
system—what this court described as “a conventional action
for breach of a contract in the building industry.” 289 Or at
247, 250. The statutory construction question was whether
the 1971 Legislative Assembly had intended the two-year
statute of limitations in ORS 12.135 to apply to that type
of action or whether the action was governed by the gen-
eral six-year statute of limitations for contract claims—ORS
12.080. Id. at 247. Ultimately, this court concluded that the
1971 Legislative Assembly had not intended to shorten the
statute of limitations for “financial losses such as a reduced
value of the completed project due to the unsatisfactory per-
formance of the work.” Id. at 250-51. Rather, we concluded,
the legislature had intended ORS 12.135 to apply only to
“what is commonly meant by ‘personal injuries,’ i.e.[,] bodily
injuries including their psychic consequences, and physical
damage to existing tangible property.” Id. at 251.
Plaintiffs emphasize that the 1971 Legislative
Assembly carried out that intent by using a phrase that is
similar to the phrase that the 1967 Legislative Assembly

7
ORS 12.135 has been amended several times, and the comparable provision
now applies to
“[a]n action against a person by a plaintiff who is not a public body,
whether in contract, tort or otherwise, arising from the person having per-
formed the construction, alteration or repair of any improvement to real
property or the supervision or inspection thereof, or from the person having
furnished design, planning, surveying, architectural or engineering services
for the improvement.”
ORS 12.135(1). For such actions, the statute includes multiple options for the
repose period and specifies that the statute of limitations is “[t]he applicable
period of limitation otherwise established by law.” Id.
550 Marshall v. PricewaterhouseCoopers, LLP

had used to describe actions subject to the 10-year statute of
ultimate repose. And they ask us to conclude from that simi-
larity that the 1967 Legislative Assembly similarly intended
to limit the negligence statute of repose to negligence
actions for bodily injuries and physical damages to tangible
property. But Securities-Intermountain did not suggest that
the phrase used in ORS 12.135—“injuries to a person or to
property”—had a specialized legal meaning that refers only
to an injury to a limited type of “property.” On the contrary,
this court began by noting that whether the phrase excluded
injuries for financial losses could not be “wholly resolved by
an examination of [ORS 12.135’s] text” because “injury to
property” did not “preclude the wider reading urged by [the]
defendants that it covers such financial ‘injuries’ from faulty
performance as, for instance, a reduced value of the building
or the cost of substitute performance.” Id. at 248.
Thus, this court looked to the particular context and
legislative history of the statute to determine “whether ORS
12.135 applie[d] to a claim of financial losses from alleged
breaches of contract by the persons so engaged.” Id. at 247.
And, because answering that question in the affirmative
would mean that ORS 12.135 had replaced the existing six-
year contract statute of limitations for claims governed by
ORS 12.080, we focused particular attention on whether
the 1971 Legislative Assembly had intended that result. We
concluded that “[n]either the text nor the legislative history
persuades us that” the 1971 Legislative Assembly intended
the statute to eliminate “the six-year period of limitation on
commencing a conventional action for breach of a contract in
the building industry.” Id. at 250.
We also pointed to legislative history indicating
that the structure of the statute had been patterned on the
approach that the legislature had taken in crafting the spe-
cial limitations statute for “injuries to the person” caused
by a medical, surgical, or dental treatment. Id. at 249-50
(citing ORS 12.110(4) (1971)).8 What we meant is that, like
8
As described above, ORS 12.110(4) was originally adopted by the 1967
Legislative Assembly as part of SB 134, as a special limitations period for inju-
ries caused “where in the course of any medical, dental, surgical or other profes-
sional treatment or operation,” a “foreign substance” was “negligently permitted
to remain” within the patient’s body. ORS 12.110(4) (1967). By 1971, however,
Cite as 371 Or 536 (2023) 551

the structure of ORS 12.110(4) (1971), the structure that the
1971 Legislative Assembly chose for ORS 12.135 combined a
statute of limitations—in the form of a requirement that the
action “shall be commenced within two years from the date”
of a specified event—with a period of ultimate repose—in
the form of the caveat “provided that such action shall be
commenced within” a longer outside time limit. That ori-
gin for the structure, and the “chosen analogy” of a stat-
ute applicable to actions for medical and dental malprac-
tice, led this court to reason “that the contemplated injuries
were those analogous to the ‘injuries to the person’ covered
by ORS 12.110(4) [(1971)].” Id. at 250. Consequently, given
our understanding that the legislature had not intended to
shorten the statute of limitations for “a conventional action
for breach of a contract in the building industry[,]” we con-
cluded that the 1971 Legislative Assembly did not intend
the limitations in ORS 12.135 to apply to actions for “finan-
cial losses such as a reduced value of the completed project
due to the unsatisfactory performance of the work or the
added cost of satisfactory completion or replacement.” Id. at
251. In other words, our construction of the statute at issue
in Securities-Intermountain depended on legislative history
particular to ORS 12.135. Given the very different history
of ORS 12.115, which we have described above, we are not
persuaded that our decision in Securities-Intermountain
informs our understanding of what the 1967 Legislative
Assembly intended when enacting ORS 12.115.
Plaintiffs, nevertheless, argue that our conclusion
in Securities-Intermountain about the meaning of the phrase
“injury to * * * property” in ORS 12.135 correctly captures
an established legal distinction between injuries to “person
or property” and injuries to purely economic interests, and
they urge us to presume that the 1967 Legislative Assembly
intended to capture that distinction when it enacted a stat-
ute of ultimate repose for “negligent injury to person or
property.” As noted, the context for interpreting a statute
“includes the preexisting common law, and we presume that
the legislature was aware of that existing law.” Montara, 357
Or at 341. The Court of Appeals offered a slight variation
the statute had been amended to extend to actions “arising from any medical,
surgical or dental treatment, omission or operation[.]” Or Laws 1969, ch 642, § 1.
552 Marshall v. PricewaterhouseCoopers, LLP

on that reasoning when it pointed to the same “distinction
between purely economic loss and injuries to persons or
property that has long been the basis of the economic loss
doctrine” to conclude that our construction of the statute at
issue in Securities-Intermountain reflects “the ‘plain, natu-
ral, and ordinary meaning’ of the ‘injury to person or prop-
erty’ language used in ORS 12.115(1).” Marshall, 316 Or App
at 429, 430 (quoting PGE, 317 Or at 611).
We have already explained, however, that Securities-
Intermountain rejected the notion that the phrase “injury
to a person or to property” had a plain, natural, or ordi-
nary meaning that would exclude “financial ‘injuries’ from
faulty performance.” 371 Or at 549-50 (quoting Securities-
Intermountain, 289 Or at 248). And, although we ultimately
concluded that the legislature had intended to distinguish
between actions for “physical damage to existing tangible
property” and actions for “financial losses such as a reduced
value of the completed project due to the unsatisfactory
performance of the work or the added cost of satisfactory
completion or replacement,” id. at 251, we did not rely on
any established legal distinction between those categories
of injury to reach our conclusion about legislative intent.
To explain what is often referred to as the “eco-
nomic loss” doctrine, the Court of Appeals highlighted this
court’s decision in Harris v. Suniga, 344 Or 301, 180 P3d
12 (2008). As Harris explains, the economic loss doctrine in
Oregon is reflected in the rule that “ ‘one ordinarily is not
liable for negligently causing a stranger’s purely economic
loss’ ” in the absence of “ ‘some source of duty outside the
common law of negligence,’ * * * such as a special relation-
ship or status that imposed a duty on the defendant beyond
the common-law negligence standard.” Id. at 308 (quoting
Hale, 304 Or at 284) (internal citation omitted; brackets
from Harris omitted).
But Harris extensively described the history of
Oregon’s economic loss doctrine, and the earliest identified
case post-dates the enactment of ORS 12.115. Id. at 307; see
id. (“[T]his court has recognized the substance (although not
the label) of the economic loss doctrine at least since Snow
v. West, 250 Or 114, 440 P2d 864 (1968)[.]”). Moreover, it is
Cite as 371 Or 536 (2023) 553

doubtful that anyone in 1968 would have recognized the
substance of the economic loss doctrine from reading Snow,
which held only that an employer does not have a cause of
action in tort “for profits lost because of a negligent injury
to an ordinary employee.” Snow, 250 Or at 117-18.9 And
Snow emphasized that “[t]here [were] no Oregon decisions
on the subject.” Id. at 116. Indeed, it appears that the now-
important distinction between negligently caused injury to
tangible property and negligently caused injury to economic
interests was first articulated in its currently recognizable
form in this court’s 1992 Onita Pacific Corp. decision, in
which this court explained, “[i]n this opinion we use the term
‘economic losses’ to describe financial losses such as indebt-
edness incurred and return of monies paid, as distinguished
from damages for injury to person or property.” 315 Or at
159 n 6. In short, there is no historical basis for assuming
that the 1967 Legislative Assembly would have understood
the phrase “negligent injury to person or property” to have
an established meaning that excludes financial loss.
Plaintiffs and amici urge us to conclude that exist-
ing law in 1967 recognized some distinction between the
ability to recover for negligently caused economic loss and
the ability to recover for negligently caused harm to physi-
cal property, even if our case law had not yet established a
special meaning for the phrase “negligent injury to person
or property” that excludes economic loss. And they urge us
to presume that the legislature enacted ORS 12.115 with an
awareness that existing law limited a plaintiff’s ability to
recover in negligence for economic loss, regardless of whether
the phrase “injury to person or property” had come to have a
special meaning by 1967. They cite a few cases that suggest
some earlier limitations on claims involving economic loss.
See Ore-Ida Foods v. Indian Head, 290 Or 909, 916, 627 P2d
469 (1980) (stating that the “prevailing rule in the United
States and England is that a plaintiff may not recover for
economic loss resulting from negligent infliction of bodily
9
The reference to an “ordinary employee” presumably distinguished the
one case that the court identified as permitting an action “to recover wages
and maintenance and cure” that a ship owner paid to an injured seaman—a
relationship viewed as “more akin to that of father to child rather than that of
employer to employee.” See Snow, 250 Or at 117 n 1 (citing Jones v. Waterman S.
S. Corporation, 155 F2d 992 (3rd Cir 1946)).
554 Marshall v. PricewaterhouseCoopers, LLP

harm to a third person,” citing cases from other jurisdictions
and legal treatises); Price v. Gatlin, 241 Or 315, 316-17, 405
P2d 502 (1965) (holding that the plaintiff, who alleged that
defective tractor had caused economic loss to his business,
could not hold the “wholesaler liable for innocently passing
along” the defective tractor); Wights v. Staff Jennings, 241
Or 301, 303, 311, 405 P2d 624 (1965) abrogated by Heaton
v. Ford Motor Co., 248 Or 467, 435 P2d 806 (1967) (holding
that nonnegligent seller of boat, which had exploded from
alleged defect, could be held liable to plaintiff who suffered
personal injuries during explosion, if jury found the defect
created an ultrahazardous condition).
Although we question whether anyone in 1967
would have understood those cases as suggesting a doctrine
that liability for negligence ordinarily does not extend to
liability for purely financial loss, the bigger challenge for
plaintiffs is that their premise does not lead to the conclu-
sion that they seek. First, a doctrine that governs what type
of damages can be recovered in a negligence action has no
apparent bearing on a statute that controls the time within
which a negligence action can be filed. Moreover, even if we
assume that the legislature understood in 1967 that negli-
gence generally did not expose the negligent party to liabil-
ity for injury to solely economic interests, we have already
explained that the relationship between lawyer and client
is one of the types of relationships that exposes the negli-
gent party to liability for injury to economic interests, and
the legislative history of ORS 12.115 makes clear that the
legislature intended the ultimate repose limit on actions for
“negligent injury to person or property” to apply to actions
in which a lawyer’s negligence caused the injury. 371 Or
at 545, 547. Thus, an assumed awareness that such liabil-
ity generally would not arise in negligence actions tells us
nothing about whether the legislature intended to limit the
time for bringing negligence actions in which liability for
injury to the plaintiff’s economic interests is cognizable.
And plaintiffs have identified no reason why the legislature
would have chosen to treat actions to recover for negligently
caused economic injury more favorably than actions for neg-
ligently caused physical injury—the converse of the prefer-
ence reflected in the economic loss doctrine.
Cite as 371 Or 536 (2023) 555

Plaintiffs, nevertheless, urge us to conclude that
the legislature did intend to adopt a statute of ultimate
repose that limits the time in which to file actions for neg-
ligent injury to physical property, while sparing actions for
negligent injury to other categories of property, by pointing
to the context of what they consider to be a related stat-
ute. Specifically, plaintiffs emphasize that ORS 12.110(1),
which establishes a statute of limitations for an action “for
any injury to the person or rights of another,” uses a differ-
ent phrase to describe the covered actions than the phrase
that the legislature used in ORS 12.115(1). That statute
of limitations provision was in effect at the time that the
1967 Legislative Assembly enacted ORS 12.115 and, indeed,
was shown as existing statutory text in the bill that added
the new repose statute. See Or Laws 1967, ch 406, § 2(2).
According to plaintiffs, the legislature’s decision to use a dif-
ferent phrase for the negligence statute of repose provision
in ORS 12.115(1) indicates that the legislature intended the
provision to govern a different—and more limited—category
of actions than those governed by ORS 12.110(1). Justice
Masih’s dissent assigns significance to that different termi-
nology in concluding that the legislature intended to exempt
claims for negligent injury to economic interests from the
statute of ultimate repose, as did the Court of Appeals. 371
Or at 571, 572 (Masih, J., dissenting); see also Marshall, 316
Or App at 431 (“We cannot ignore the fact that the legisla-
ture chose to forgo the broader language previously adopted
in ORS 12.110(1) when it enacted ORS 12.115(1) and instead
adopted narrower language.”). But we are not persuaded.
The premise of that argument may be sound, but
the conclusion does not follow. In other words, it is true that
the legislature used a different phrase in ORS 12.115(1)
than the existing phrase in ORS 12.110(1), and we generally
assume that when the legislature uses different terms—at
least in the same statute—it intended different meanings.
See Dept. of Transportation v. Stallcup, 341 Or 93, 101, 138
P3d 9 (2006) (use of different terms in real estate appraisal
statute suggests that each was intended to have different
meaning). But “[s]uch ‘rules’ of interpretation are mere
assumptions that always give way to more direct evidence
of legislative intent.” State v. Lane, 357 Or 619, 629, 355 P3d
556 Marshall v. PricewaterhouseCoopers, LLP

914 (2015). And we have already explained that the text and
legislative history supply more direct evidence that the leg-
islature compromised on a bill that would leave open the pos-
sibility that Berry’s discovery rule could extend the statute
of limitations for other professional negligence claims while
also setting an outside limit on when such claims could be
brought. In doing so, the legislature limited the period of
ultimate repose to claims for “negligent injury to person or
property of another,” but it did not limit the period of ulti-
mate repose to claims for “negligent injury to the person or
[physical] property of another,” and it expressed no intent to
limit the period of ultimate repose according to whether the
professional negligence caused injury to physical property
as opposed to injury to other types of property. 371 Or at
546.
Both the provision at issue in ORS 12.115(1) and
the reference in that statute to ORS 12.110 were a product of
the two weeks that the bill spent in Conference Committee.
As Justice Masih’s dissent points out, “[r]ecords of what
happened in the Conference Committee are limited to a
few margin notes and a summary report.” 371 Or at 571
(Masih, J., dissenting). Thus, there is no evidence of why the
legislature did not simply copy the phrase set out in ORS
12.110(1)—“any injury to the person or rights of another”—
when describing the scope of actions that would be governed
by the period of repose. But multiple distinctions between the
two statutes highlight possible explanations for the slight
variation in phrasing, beyond plaintiffs’ assumption that
the legislature intended to limit the new period of repose to
claims for negligently caused injury to physical property.
First, the phrase set out in ORS 12.110(1) reaches
claims for intentional injury as well as claims for negligent
injury. The legislature’s decision to use a different phrase
in ORS 12.115(1) might be explained by the fact that the
new statute of repose applied only to actions for negligent
injury, precluding the legislature from simply copying the
phrase from ORS 12.110(1). Second, as defendant points out,
the text now found in ORS 12.110(1) was written more than
100 years before the legislature adopted ORS 12.115(1). See
General Laws of Oregon, Civ Code, ch I, title II, §§ 3, 6, 8,
Cite as 371 Or 536 (2023) 557

p 140-41 (Deady 1845-1864) (setting out provisions now
found at ORS 12.110(1)). And the pertinent phrasing of ORS
12.110(1) has been in place since 1919. Or Laws 1919, ch 122,
§ 1. But see Or Laws 1981, ch 149, § 1 (removing actions for
“criminal conversation” from the list of actions governed by
ORS 12.110). Thus, the difference between “injury to the
person or rights of another” and “negligent injury to person
or property” might simply reflect a preference for contem-
porary negligence terminology. Ultimately, we cannot know
why the legislature used the term “property” rather than
“rights” when drafting the compromise provision of ORS
12.115(1). But we cannot assume that it did so because it
intended to limit the scope of ORS 12.115(1) to claims for
negligent injury to physical property, when the term “prop-
erty” was readily understood to reach economic interests
and the legislative history indicates that the legislature
intended the period of ultimate repose in ORS 12.115(1) to
apply to actions for legal negligence—negligence that by
long tradition gave rise to liability for injury to economic
interests.10
CONCLUSION
Based on the text, context, and helpful legislative
history, we are persuaded that the legislature did not intend
to spare actions for negligent injury to economic interests
from the ultimate cut-off date that it prescribed in ORS
12.115(1) for “any action for negligent injury to person or
property.” Thus, the trial court correctly rejected plaintiffs’
argument that ORS 12.115(1) does not bar claims for neg-
ligent injury to economic interests. Because the Court of
Appeals held otherwise, it did not address plaintiffs’ alter-
native, second assignment of error, which challenged the
trial court’s conclusion that ORS 12.115(1) bars plaintiffs’
claims. Our contrary construction of the statute makes it

10
We emphasize that the significance of the statute of repose is that it fore-
closes claims for negligently caused injury regardless of whether the injury was
discoverable. See Shasta View Irrigation Dist., 329 Or at 162 (so explaining). For
lawyers who practice in areas of the law in which negligence routinely goes undis-
covered for more than a decade, the compromise that the legislature struck for
ORS 12.115 falls disproportionately on the clients, whose claims will be fore-
closed before they even accrue. But any adjustments to address that disparity are
a matter of policy choice for the legislature to address.
558 Marshall v. PricewaterhouseCoopers, LLP

appropriate to remand to Court of Appeals, for that court to
now consider plaintiffs’ second assignment of error.
The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for consid-
eration of plaintiffs’ second assignment of error.
JAMES, J., dissenting.
In my view, this case exposes a gap in our usual
statutory construction methodology derived from PGE v.
Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d
1143 (1993). Under that approach, when “the legislature has
not defined a particular term, we assume that the legisla-
ture intended to give words of common usage their ‘plain,
natural, and ordinary meaning.’ ” State v. Clemente-Perez,
357 Or 745, 756, 359 P3d 232 (2015). In that instance, we
generally look to the common dictionary understanding of
the term. There is an exception to that rule, however. When
the legislature uses what we call a “term of art,” we do not
turn to common dictionary definitions; we instead “look to
the meaning and usage of those terms in the discipline from
which the legislature borrowed them.” Comcast Corp. v.
Dept. of Rev., 356 Or 282, 296-97, 337 P3d 768 (2014).
Critically, this court has never clearly articulated
a methodology for how it determines, in the first instance,
whether a term is one of “common usage” or a “term of art.”
In theory, that should be no different than our approach to
any other statutory question, resolved by consideration of
the statute’s text, context, and legislative history. State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). In practice,
however, I am not sure our approach to legislative intent
in this area has been without flaw. Discerning legislative
intent is a question resolved through the examination of a
historical record. And all approaches to history carry the
risk of cognitive bias by the historian. I believe our treat-
ment of this issue may evidence that.
In reviewing the case law where this court has
considered whether to classify terms as “common usage” or
“terms of art,” no clear methodology emerges. At times, we
have simply announced that the term, by its very nature,
was not of common usage, even if we later concluded the
Cite as 371 Or 536 (2023) 559

common and term of art definitions were the same. See, e.g.,
State v. McNally, 361 Or 314, 322, 392 P3d 721 (2017) (“The
phrase ‘passive resistance’ is a term of art that has the
same meaning whether considered in a lay or a legal con-
text.”). At other times, we have implied a more historically
grounded approach, but, even then, included language min-
imizing the consistency of the application of that approach.
See, e.g., Comcast Corp., 356 Or at 296 (explaining that we
will “potentially also consider the overall statutory scheme
in which a legal term appears, as well as the meaning that
the term has for regulators who oversee the field”) (empha-
sis added). And at other times, we simply refused to engage
with the question altogether. See, e.g., Oak Lodge San. Dist.
v. Gen. Ins. Co., 240 Or 103, 106, 399 P2d 351 (1965) (“We
prefer not to engage in a definitional exercise which might
cause the words ‘work’ and ‘project’ to be regarded as terms
of art. Such a result could create unforeseen mischief for
future litigants and is not necessary to a decision in this
case.”).
The lack of a defined methodology has resulted
in our classification of terms in ways that, when viewed
together, struggle to paint a coherent methodological pic-
ture. We have labeled the terms “lawful order,” “risk,” “dan-
ger,” “material,” “departure,” and “threatens” as common.
See, e.g., State v. Ausmus, 336 Or 493, 503-04, 85 P3d 864
(2003) (“lawful order”); Woodbury v. CH2M Hill, Inc., 335 Or
154, 161, 61 P3d 918 (2003) (“risk” and “danger”); State v.
Rogers, 334 Or 633, 640, 55 P3d 488 (2002) (“material” and
“departure”); State v. Hall, 327 Or 568, 572-73, 966 P2d 208
(1998) (“threatens”). In contrast, sometimes without much
explanation, we have labeled the terms “form,” “unconscion-
able,” “appraisal,” and “mental disease or defect” as terms of
art. See, e.g., State v. Haji, 366 Or 384, 402-04, 462 P3d 1240
(2020) (“form”); Gordon v. Rosenblum, 361 Or 352, 361, 393
P3d 1122 (2017) (“unconscionable”); Dept. of Transportation
v. Stallcup, 341 Or 93, 99-102, 138 P3d 9 (2006) (“appraisal”);
Tharp v. PSRB, 338 Or 413, 423, 110 P3d 103 (2005) (“men-
tal disease or defect”).
Although terms of art can come from any disci-
pline, legal terms of art pose a particular problem for courts.
560 Marshall v. PricewaterhouseCoopers, LLP

Numerous terms appear in the law, and although some, like
“probable cause” have no common meaning outside the legal
context, other terms, like “property,” have legal meanings
and common meanings, and the two may conflict in vari-
ous ways. As the majority explains, certain legal definitions
of “property” include “ ‘everything which is the subject of
ownership, corporeal or incorporeal, tangible or intangi-
ble, visible or invisible, real or personal * * * extend[ing] to
every species of valuable right or interest.’ ” 371 Or at 542-43
(quoting Black’s Law Dictionary 1382 (4th ed 1951)). But the
common understanding of the term “property” may have an
aspect of tangibility to it that a legal definition does not. For
example, Webster’s defines “property” to mean, among other
things, “[s]omething that is or may be owned or possessed:
wealth, goods; specif : a piece of real estate * * * the house
… surrounded by the ~” Webster’s Third New Int’l Dictionary
1818 (unabridged ed 2002).
If initial classification of terms as ones of “common
usage” or “terms of art” is a search for legislative intent,
then the cognitive bias of the court, as historian, is that
courts are preconditioned to view such terms as legal terms
of art, because courts are trained and immersed in the
law. But Oregon employs a part-time, citizen legislature.
Although many members of that body are lawyers, the vast
majority are not. And although the legislature is advised
by lawyers in the Legislative Counsel’s Office, the general
drafting guidelines of that office set the expectation to leg-
islative members that terms that give rise to legally spe-
cific meanings typically should be avoided. See, e.g., Oregon
Legislative Assembly, Bill Drafting Manual 4.12 (18th ed
2018) (“A drafter may be tempted to make an extravagant
use of elegant words when simpler expression is adequate.
For example, use of ‘respectively’ usually is superfluous. The
drafter needs also to avoid words that give rise to legal argu-
ments. ‘Valuable consideration’ raises a whole series of law
school questions that ‘compensation’ does not. ‘Bona fide’ is
not only usually mispronounced but is subject to argument
on its specific meaning.”)1
1
I encourage readers to not take my critique of method in this case as a
disguised call for Oregon to employ corpus linguistics. “Corpus linguistics is the
empirical study of language using samples (or bodies) of texts called corpora (in
Cite as 371 Or 536 (2023) 561

In this case, the issue is the meaning of “negligent
injury to person or property” in ORS 12.115(1). The Court
of Appeals resolved that question by treating the terms as
words of common usage, reasoning by reference to our previ-
ous decisions which had treated similar language in differ-
ent context as words of common usage:
“And although Securities-Intermountain[ Inc. v. Sunset Fuel
Co., 289 Or 243, 611 P2d 1158 (1980)] and Portland Trailer
[ & Equip., Inc. v. A-1 Freeman Moving & Storage, Inc., 166
Or App 651, 5 P3d 604 (2000), opinion adh’d to as modified
on recons, 168 Or App 654 (2000)] both construe provisions
enacted after ORS 12.115 was passed in 1967, and both
cases were obviously decided after ORS 12.115 was enacted
as well, they remain relevant to our construction of ORS
12.115(1). Those constructions reflect the plain, natural,
and ordinary meaning of the ‘injury to person or property’
language used in ORS 12.115(1).”

Marshall v. PricewaterhouseCoopers, LLP, 316 Or App 416,
430, 505 P3d 40 (2021) (some internal quotation marks
omitted). That court reviewed case law and noted that the
common meaning of “injury to person or property” was at
odds with “purely financial loss that does not appear to
involve physical damage to tangible property or implicate

the plural). A corpus is constructed in order to study a particular register (vari-
ety of texts associated with a situational context) or speech community (group
of language users who share the same dialect or language norms).” James C.
Phillips & Jesse Egbert, A Corpus Linguistic Analysis of ‘Foreign Tribunal’, 108
Va L Rev Online 207, 220 (2022); see also Stephen C. Mouritsen, Hard Cases and
Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning,
13 Colum Sci & Tech L Rev 156, 160-61 (2012) (“When judges * * * demand that
statutory terms be interpreted according to their ordinary meaning, they impli-
cate a set of empirical questions, many of which are amenable to different types of
linguistic analysis. * * * [I]n the field of corpus linguistics, scholars rely on large
electronic databases called corpora to determine * * * those meanings that are
consistent with common usage * * * or * * * the term’s ordinary or most frequent
meaning.”).
Corpus linguistics has existed in the academic field of linguistics for some
time, but has recently come into vogue in legal circles. Although I do not entirely
foreclose what corpus linguistics might offer the law, it is potentially problematic
on many levels, including suffering from the limitations and biases of those who
compile the corpus, manipulation through the choice of database, and potentially
overly suggestive results due to the construction of the search terms and meth-
ods. For those reasons, I have consciously declined to employ a corpus linguistics
argument in this dissent. I know courts to be generally poor historians, by aca-
demic standards; I suspect we are even worse linguistic researchers.
562 Marshall v. PricewaterhouseCoopers, LLP

the ownership or disposition of property.” Id. at 427-30. The
court ultimately concluded:
“Plaintiffs’ claim against [defendant] is an action to recover
legal fees associated with the * * * transaction [in question]
and later IRS investigation and litigation, as well as the
financial losses plaintiffs suffered when they were found
liable to the IRS for over $20 million in back taxes, pen-
alties, and interest. Those injuries fit firmly within our
established definition of ‘economic loss’ and form a claim
that seeks recovery for ‘indebtedness incurred [or] return
of monies paid.’ * * * Plaintiffs’ claim does not assert any
‘injury to person or property,’ because it does not implicate
physical damage to existing tangible property or relate to
the ownership and disposition of property.”
Id. at 432 (citations omitted). The Court of Appeals was
entirely correct.
The majority’s reversal of the Court of Appeals’
decision in this case hinges on treating “property” as a
legal term of art and then defining it in such a manner so
as to include ephemeral types of potential economic losses,
such as future tax penalties, so as to require reversal. That
argument—categorizing the term as a legal term of art—
was never made to the Court of Appeals. It appears for the
first time in arguments to this court. That gives me pause.
I do appreciate, however, the majority not simply accept-
ing the parties’ assertion that this is a term of art without
examination. That critical examination alone is an improve-
ment over our past practices.
But, ultimately, the majority does not persuade me
why the term must be treated as a legal term of art. The
majority reasons that a term of art definition must have been
intended by the legislature because the statute “addresses
a legal concept—an outside limit on when a legal action for
negligence can be filed—meaning that the intended audi-
ence was those who would file, or defend against, a legal
negligence action.” 371 Or at 542. Yet we have construed
terms as ones of “common usage” in legislation involving
legal actions numerous times, as previously cited. For me, I
remain unconvinced, because I read the majority reasoning
as assuming what it sets out to prove—that is, that we’re
Cite as 371 Or 536 (2023) 563

dealing with a legal concept of property and not the common
understanding of the term.
From my review of the legislative record of ORS
12.115(1), I find no indication that the legislature know-
ingly employed the term “property” as a legal term of art, as
opposed to a term of common meaning imputing a tangible
nature, and the majority points to no legislative history that
would make it clear that the legislature understood itself to
be knowingly adopting a specialized “term of art” definition
of property. Without that necessary showing in the histori-
cal record, in my view, the majority errs in one of two ways.
First, and the least damaging, is that our opinion
today simply continues our tradition of not fully explaining
why a term is a “term of art.” In this manner, we do little
more than add to an already incongruous area of the law—
announcing a result, but not clarifying the methodology.
But more concerning to me is that our opinion today
could be read as impliedly announcing a new rule of statu-
tory interpretation in its reversal of the Court of Appeals’
approach—that the preliminary classification of statutory
terms into “common usage” versus “terms of art” employs a
presumption in favor of term of art definitions any time that
the legislative subject might roughly be understood to speak
to an audience of lawyers. In such instances, when the legis-
lature uses a word that parties, or courts, can subsequently
identify as a term of art, at any stage of appellate review,
courts will adopt the term of art meaning—and lower courts
err in failing to adopt that meaning—even when no evi-
dence in the legislative record suggests that the legislature
themselves knew of that meaning, knew the source of that
meaning, or knowingly adopted that meaning. I respectfully
decline to endorse that approach.
From my perspective, labeling a term as a “legal
term of art,” simply because the court recognizes that the
term has a particular meaning in the law, invites poten-
tial cognitive bias into the process, resulting in potentially
flawed history and, accordingly, potentially flawed identifica-
tion of legislative intent. I would, therefore, employ the oppo-
site presumption than the majority: that all terms employed
564 Marshall v. PricewaterhouseCoopers, LLP

by the legislature are terms of common usage, unless the
context and the legislative record establishes that the legis-
lature knowingly employed a term of art definition.2
Construing the term as one of common usage does
not end the inquiry, however. I agree with the majority that
some common definitions of property could reach intangi-
ble future “valuable right[s] or interest[s].” 371 Or at 542-
43. But some clearly do not reach so far, and the questions
remains—which is more likely to have been the legislature’s
intent?
I conclude that the legislature, in 1967, was most
likely employing a definition of property that implies tangi-
bility. In addition to the reasoning employed by the Court of
Appeals, which I believe to be correct, I note that the statute’s
phrase “injury to person or property” is not to be read as a
unitary concept, but as a short list. When viewed as a list,
the word “property” follows the word “person” within the stat-
ute, a clearly tangible term. “[W]hen the legislature chooses
to state both a general standard and a list of specifics, the
specifics do more than place their particular subjects beyond
the dispute; they also refer the scope of the general standard
to matters of the same kind, often phrased in Latin as ‘ejus-
dem generis.’ ” Bellikka v. Green, 306 Or 630, 636, 762 P2d 997
(1988). Accordingly, when terms follow one another in a stat-
ute, and those terms begin narrowly, but conclude more gener-
ally, we often look to the shared “basic characteristics” of each
to construe the more general term. See, e.g., Lewis v. CIGNA
Ins. Co., 339 Or 342, 350-51, 121 P3d 1128 (2005). Here, the
commonality between person and property is tangibility.
Further, just a few years before the statute in ques-
tion was enacted in 1967, we discussed, at some length,
the differing conceptions of property in State v. Tauscher,
227 Or 1, 11-13, 360 P2d 764 (1961). There, we noted that
one common definition of property could “include all rights
which are of value,” including “ownership interests which
2
Even if we could conclude that the legislature intended to adopt a term of
art definition, as Justice Masih persuasively notes in her dissent, Blackstone
defined property in a manner that is arguably inconsistent with the term of art
definition proffered by the majority. See 371 Or at 567 (Masih, J., dissenting).
The lack of uniformity even among the term of art definitional sources further
highlights the need for grounding in the legislative record.
Cite as 371 Or 536 (2023) 565

are not capable of possession.” Id. at 11-12. But we also noted
that property could be understood to mean “only physical
property capable of possession.” Id. at 12.
In Tauscher, we ultimately held that the crime of
embezzlement did not reach to the intangible property involved
in that case, reasoning:
“The interest which the Association had in the check-
ing account was an intangible chose in action. This type of
chose is to be contrasted with tangible choses in action, a
term used to describe certain commercial documents such
as bonds, bills of exchange, bank checks and promissory
notes. * * * Such tangible choses are capable of being pos-
sessed; intangible choses are not.
“* * * * *
“In the case at bar, we are of the opinion that the checks,
while in the defendant’s possession, were not tangible cho-
ses in action. Thus the checks were not ‘property’ within
ORS 165.005 and ORS 164.310. Therefore, defendant did
not and could not embezzle the checks.”
Id. at 13-15.
Certainly, Tauscher involved an entirely different
statute, and context, than this case. But it establishes that,
by 1967, the legislature was aware of the difference between
tangible and intangible property, and that, at least for some
statutes, this court would construe the common definition of
“property” narrowly, to mean tangible property. It is therefore
meaningful, in my view, that the 1967 Legislative Assembly
took no steps to include terms such as “intangible property,”
“rights,” or “interests” in the wording of the statute. Given
Tauscher, the legislature understood that, if it intended a
statute to reach beyond the common, tangible, definition of
property, it might need to clearly say so. It did not.
The Court of Appeals relied on our holding in
Securities-Intermountain, where we said, “ ‘injuries to * * *
person(s) or to property’ was thought to encompass what is
commonly meant by ‘personal injuries,’ i.e. bodily injuries
including their psychic consequences, and physical damage
to existing tangible property, but not financial losses * * *.”
289 Or at 251. I view the reasoning expressed by this court
566 Marshall v. PricewaterhouseCoopers, LLP

in Securities-Intermountain in 1980 as a continuation of the
concepts expressed in Tauscher, in 1961. Given that context,
I find it more likely that the 1967 Legislative Assembly—
operating squarely in that time period—intended the use
of the term “property,” without any qualifiers, to reflect the
common, narrow, tangible definition of the term.
For those reasons, I cannot conclude that the Court
of Appeals’ decision was incorrect. I therefore respectfully
dissent.
MASIH, J., dissenting.
I would affirm the decision of the Court of Appeals,
holding that plaintiffs’ claim is not barred by ORS 12.115(1)
because “it does not implicate physical damage to existing
tangible property or relate to the ownership and disposition
of property” and therefore, does not assert any “injury to
person or property” within the meaning of ORS 12.115(1).
Marshall v. PricewaterhouseCoopers, LLP, 316 Or App 416,
432, 505 P3d 40 (2021). I agree with the Court of Appeals that
we cannot ignore the legislature’s choice to forgo the broader
wording of “injury to person or rights of another” from ORS
12.110(1) when it enacted ORS 12.115(1).1 316 Or App at 431.
And I disagree with the majority that the omission of the
broader “rights of another” wording might simply reflect
a preference for modern legal terminology. There is noth-
ing in the legislative history to indicate such a preference,
and ordinarily, when the legislature uses different terms,
we assume that the legislature intends those terms to have
different meanings, particularly when the terms appear
together in the same statutory scheme and may give rise
to different legal consequences. See, e.g., Norwood v. Premo,
1
At the time when ORS 12.115 was enacted, ORS 12.110(1) (1965) provided:
“An action for assault, battery, false imprisonment, for criminal conver-
sation, or for any injury to the person or rights of another, not arising in con-
tract, and not especially enumerated in this chapter, shall be commenced
within two years; provided, that in an action at law based upon fraud or
deceit, the limitation shall be deemed to commence only from the discovery of
the fraud or deceit.”
(Emphasis added.) That pre-existing wording in ORS 12.110(1) is important con-
text for interpreting the meaning of ORS 12.115(1), because the same bill (Senate
Bill (SB) 134 (1967)) that created ORS 12.115(1), also created ORS 12.110(4), and
ORS 12.115(2) explicitly refers to ORS 12.110. Thus, ORS 12.115 and ORS 12.110
are intended to be read together.
Cite as 371 Or 536 (2023) 567

287 Or App 443, 451, 403 P3d 502, rev den, 362 Or 300
(2017) (stating standard and citing Dept. of Transportation
v. Stallcup, 341 Or 93, 100-01, 138 P3d 9 (2006)). Ultimately,
the “text” selected by the 1967 Legislative Assembly to cap-
ture its intent in ORS 12.115(1) is “negligent injury to person
or property,” instead of “any injury to the person or rights of
another.”

Both phrases appear to have their roots in the com-
mon law, and the former covers only a subset of the natural
rights of persons. See, e.g., Kosciolek v. Portland Ry., L. & P.
Co., 81 Or 517, 522, 160 P 132 (1916) (“The natural rights of
a person at common law are the right of personal security
in the legal enjoyment of life, limb, body, health, and repu-
tation, the right of personal liberty, and the right of private
property.” (citing William Blackstone, 1 Commentaries on
the Laws of England 125-29 (1st ed 1765))). At common law,
the term “property” had a generally understood meaning.2
Blackstone divided property into real and personal property.
He described “real property” as property “which consists of
such things as are permanent, fixed, and immoveable; as
lands, tenements, and hereditaments of all kinds, which are
not annexed to the person, nor can be moved from the place
in which they subsist.” William Blackstone, 3 Commentaries
on the Laws of England 144 (1st ed 1768). And he described
“personal property” as property “which consists of goods,
money, and all other moveable chattels, and things there-
unto incident; a property, which may attend a man’s person
wherever he goes, and from thence receives its denomina-
tion[.]” Id. Legal dictionaries also defined “property” to mean,
among other things, the “[r]ightful dominion over external
objects; ownership; the unrestricted and exclusive right to
a thing; the right to dispose of the substance of a thing in
every legal way, to possess it, to use it, and to exclude every-
one else from interfering with it.” Henry Campbell Black,
Dictionary of Law Containing Definitions of the Terms and

2
I agree with Justice James’s dissent that we should look for legisla-
tive intent to characterize a term as a legal term of art. See 371 Or at 563-64
(James, J., dissenting). In the absence of such an intent, we should give words
outside the legal context their common meanings. I trace the history of the legal
definition here, because that is the approach that the majority followed, but, as
explained, I reach a different conclusion.
568 Marshall v. PricewaterhouseCoopers, LLP

Phrases of American and English Jurisprudence, Ancient
and Modern 953 (1891).
Generally, under the common law, negligent injury
to such rights encompassed only physical damage to real or
personal property. See Harris v. Suniga, 344 Or 301, 310,
180 P3d 12 (2008) (explaining that, in this court’s economic
loss cases, “the court [had] adher[ed] to the distinction that
had developed in the common law between ‘purely economic
losses,’ on the one hand, and damages for physical injuries
to person or property, on the other”). In Ore-Ida Foods v.
Indian Head, this court referred to those common-law roots,
noting that “[t]he prevailing rule in the United States and
England is that a plaintiff may not recover for economic
loss resulting from negligent * * * harm to a third person.”
290 Or 909, 916, 627 P2d 469 (1981). There, this court cited
Snow v. West, 250 Or 114, 440 P2d 864 (1968), along with a
1903 case from Georgia and a 1966 case from England, as
good examples. Ore-Ida Foods, 290 Or at 917 (citing Snow;
Byrd v. English, 117 Ga 191, 43 SE 419 (1903); Weller & Co.
v. Foot & Mouth Disease Research Institute, 1 QB 569 (1966)).
In Hale v. Groce, this court explained that, to recover for
purely economic losses, “[i]t does not suffice that the harm
is a foreseeable consequence of negligent conduct that may
make one liable to someone else, for instance to a client.
Some source of a duty outside the common law of negligence
is required.” 304 Or 281, 284, 744 P2d 1289 (1987). Thus,
to support negligence claims for purely financial loss, this
court has looked for other professional, special, or contrac-
tual relationships, which may give rise to a duty to exercise
reasonable care on behalf of another’s interests. See, e.g.,
Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149, 159-
62, 843 P2d 890 (1992) (stating and applying rule in claim
for negligent misrepresentation).
The majority points out that those cases describing
the “economic loss doctrine” post-date the 1967 enactment
of ORS 12.115(1) and also that this case involves a “special
relationship” between an attorney and a client, which was
recognized at common law to impose an obligation to exer-
cise extra care to avoid negligent injury, including injury
resulting in purely financial losses. See Currey v. Butcher,
Cite as 371 Or 536 (2023) 569

37 Or 380, 385, 61 P 631 (1900) (“Where one adopts the legal
profession, and assumes to exercise its duties [on] behalf of
another for hire, the law imposes a duty to exercise reason-
able care and skill, and, if an injury results to his client
from want thereof, he is liable to respond in damages to the
extent of the injury sustained. This duty and liability arise
from the relation of the parties under the contract, rather
than from the contract itself.”); 371 Or at 546-47, 552. But
the fact that an attorney may be held liable for negligent
injury to a client’s economic interests does not necessarily
require the conclusion that purely financial losses constitute
an injury to “property.” However, I agree with the major-
ity that it may be helpful to review legislative history to
understand whether the legislature nevertheless intended
to define “property” more broadly than the term’s common
usage suggests.3 State v. Gaines, 346 Or 160, 171-72, 206
P3d 1042 (2009).
When Senate Bill (SB) 134 (1967) was pending
before the Senate Committee on Judiciary, Senator Willner
moved that the committee counsel prepare an amendment
to describe all malpractice situations and not just the cer-
tain kinds defined in the bill, which at that point contained
only the provision regarding medical malpractice that was
later enacted as ORS 12.110(4). Minutes, Senate Committee
on Judiciary, Mar 14, 1967, 3. Chairman Mahoney ruled the
motion “out of order.” Id. The bill passed out of committee
and was approved by the Senate without any amendment

3
In our prior cases, we have cited our decision in Josephs v. Burns, 260 Or
493, 491 P2d 203 (1971), abrogated on other grounds by Smothers v. Gresham
Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), as authoritative on the question of
the legislative history of ORS 12.115. However, in that case, there was no ques-
tion that there was negligent injury to real and personal property. There, the
roof of a building owned or leased by plaintiffs collapsed 17 years after the archi-
tects and engineers had provided the professional services that were alleged
to have been negligent. Plaintiffs brought an action for damages to “real and
personal property.” The question before this court was whether the professional
malpractice claims against the architects and engineers—professional malprac-
tice claims that could not have been discovered within the period of ultimate
repose but which arose out of physical injury to real and personal property—were
intended by the legislature to be included within the scope of ORS 12.115(1). This
court determined that they were. Now, we must determine whether the legisla-
tive history also supports the conclusion that such claims would be covered even
if there is no physical injury to real or personal property. Thus, the discussion of
legislative history in Josephs is of limited use here.
570 Marshall v. PricewaterhouseCoopers, LLP

covering malpractice claims other than medical malprac-
tice. See Senate Judiciary Committee Report on SB 134
(Mar 22, 1967).
In the House Committee on Judiciary, the legislators
reviewed SB 134 in conjunction with House Bill (HB) 1309
(1967), a bill that focused on defining the term “accrued”
for purposes of ORS 12.0104 generally, in response to this
court’s decision to adopt a discovery rule for medical mal-
practice claims in Berry v. Branner, 245 Or 307, 421 P2d 996
(1966).5 Committee members discussed the need for some
finality for other types of malpractice claims not covered by
SB 134, but acknowledged that different professional groups
were beginning to pursue bills for their respective indus-
tries. See Tape Recording, House Committee on Judiciary,
SB 134, Apr 19, 1967, Tape 79.
Ultimately, the House chose not to use all-
encompassing language regarding malpractice and opted
instead to add to SB 134 its HB 1309 definition of “accrued,”
with an “unless otherwise directed by law” clause. See
House Judiciary Committee Report on SB 134 (Apr 20,
1967). Legislative Counsel Donald Paillette reassured
Senator Mahoney that the House amendment to SB 134
“would not affect the basic provisions of the bill[,] since it
provides a separate test for medical malpractice cases.” See
Staff Memorandum, House Committee on Judiciary, SB
134 (1967) (memorandum from Donald Paillette concerning
amendments to SB 134).
Thus, despite concerns expressed in committee,
the actions of both the Senate and the House going into the
Conference Committee indicated only a willingness to bring
finality to medical malpractice claims and some subset of
other professional malpractice claims not otherwise pro-
vided for by law. In other words, the legislature was open to
4
At the time, ORS 12.010 (1965) provided, in relevant part:
“Actions at law shall only be commenced within the periods prescribed
in this chapter, after the cause of action shall have accrued, except where a
different limitation is prescribed by statute.”
5
In Berry, we determined that a cause of action for medical malpractice
involving a foreign object left in the body did not “accrue” for purposes of com-
mencing the statute of limitations until the injury was discovered or, in the exer-
cise of reasonable care, should have been discovered by the patient. 245 Or at 316.
Cite as 371 Or 536 (2023) 571

tackling the malpractice issue in stages, perhaps with some
sensitivity to the industry involved, and was interested, in
the meantime, in limiting the impact of the decision in Berry
more generally.
Records of what happened in the Conference
Committee are limited to a few margin notes and a summary
report. See Conference Committee Report on Amendments
to SB 134 (May 12, 1967). The report recommended only
that the House “recede” from its amendment and that the
bill be amended to add the following text:
“(1) In no event shall any action for negligent injury to
person or property of another be commenced more than 10
years from the date of the act or omission complained of.
“(2) Nothing in this section shall be construed to
extend any period of limitation otherwise established by
law, including but not limited to the limitations established
by ORS 12.110.”
Conference Committee Report on Amendments to SB 134
(May 12, 1967).
Clearly, the legislature reviewed and considered the
scope of ORS 12.110 in the Conference Committee when it
included a reference to that statute in its final amendments
to SB 134. Yet, it chose not to track the broader ORS 12.110(1)
wording of “injury to the person or rights of another” to
modify “negligent” in SB 134. The legislature also chose
to forgo a statute of repose targeting all professional mal-
practice claims, as requested originally by Senator Willner,
such that we might be able to conclude that the legislature
intended to impose a definite cutoff on all claims against
lawyers, including claims for purely financial loss. Thus,
although the legislative history demonstrates that the legis-
lature was concerned about the lack of a definite cutoff point
for professional malpractice claims following this court’s
decision in Berry, it does not support the conclusion that the
legislature intended to cut off all such claims—particularly
claims involving purely “financial loss,” which are distinct
and separate from any “injury to person or property.” Had
the legislature intended to cut off all such claims, it would
have used the broader wording of “injury to person or rights
of another” that already existed in ORS 12.110(1).
572 Marshall v. PricewaterhouseCoopers, LLP

Instead, by using the more limited wording of
“injury to person or property,” the legislature left open the
possibility that it may have to revisit professional malprac-
tice claims, and it did so after 1967. ORS 12.135, which this
court construed in Securities-Intermountain v. Sunset Fuel,
289 Or 243, 247, 611 P2d 1158 (1980), to exclude claims for
purely financial losses, is exactly such an example. As the
Court of Appeals noted, that statute has been reviewed and
amended by the legislature multiple times since this court’s
decision in Securities-Intermountain. Marshall, 316 Or App
at 427 n 6. We should trust that the legislature will do its
part to clarify and make changes as needed.
For those reasons, I respectfully dissent.