Limitations of Actions and Suits

ORS 12.220
Commencement of new action after involuntary dismissal

(1)

Notwithstanding ORS 12.020 (When action deemed begun), if an action is filed with a court within the time allowed by statute, and the action is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action, or is involuntarily dismissed with prejudice on the ground that the plaintiff failed to properly effect service of summons within the time allowed by ORS 12.020 (When action deemed begun) and the statute of limitations for the action expired, the plaintiff may commence a new action based on the same claim or claims against a defendant in the original action if the defendant had actual notice of the filing of the original action not later than 60 days after the action was filed.

(2)

If, pursuant to subsection (1) of this section, a new action is commenced in the manner provided by ORS 12.020 (When action deemed begun) not later than 180 days after the judgment dismissing the original action is entered in the register of the court, the new action is not subject to dismissal by reason of not having been commenced within the time allowed by statute.

(3)

A new action may be commenced only once under this section for the same claim or claims.

(4)

All defenses that would have been available if the original action had been commenced within the time otherwise allowed by statute shall be available in a new action commenced under this section. [Amended by 1961 c.726 §397; 2003 c.296 §1]

Notes of Decisions

In General

Action brought in federal court and dismissed for lack of diversity jurisdiction was within saving clause of this section. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

The words "upon the trial" in this section include the trial of questions of law as well as of fact. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

Limitation period on insurance claims required by statute to be included in policy is, in effect, a statutory limitation. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

This section does not apply to action which has been dismissed after trial upon merits. Tikka v. Martin, 271 Or 287, 532 P2d 18 (1975)

When trial court dismissed previous claims for dilatorious prosecution, one-year extension of this section did not save subsequent action from being barred by res judicata. Te-Ta-Ma Truth Foundation v. Vaughan, 114 Or App 448, 835 P2d 938 (1992)

This section did not extend time for bringing new action based on misrepresentation theory when previous action was based on contract and estoppel. McNeely v. Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992), Sup Ct review denied

Dismissal

Dismissal for want of jurisdiction of the cause, whether requiring determination of issues of law alone or of issues of both law and fact, is dismissal within meaning of this section. Hatley v. Truck Ins. Exch., 261 Or 606, 494 P2d 426, 495 P2d 1196 (1972)

Voluntary nonsuit granted before commencement of trial is not dismissal within meaning of this section. Vandermeer v. Pacific Northwest Dev. Corp., 284 Or 517, 587 P2d 98 (1978)

Party could refile case which was originally brought within proper period and dismissed without reaching merits because there was another action pending on same cause in federal court where dismissal was upheld on ground federal court lacked jurisdiction of that cause and refiling occurred within one year of effective date of decision on appeal. Beetham v. Georgia-Pacific, 87 Or App 592, 743 P2d 755 (1987)

For dismissal of inactive case to have additional consequence of preventing refiling of action because of failure to prosecute, dismissal procedure must follow ORCP 54B (3). Moore v. Ball, Janik & Novack, 120 Or App 466, 852 P2d 937 (1993), Sup Ct review denied

Dismissal on grounds not adjudicating merits means dismissal on grounds not giving rise to claim preclusion. Ram Technical Services, Inc. v. Koresko, 346 Or 215, 208 P3d 950 (2009)

For purpose of determining date of filing of new action, judgment, dismissing original action is trial court's original judgment dismissing action before appeal. Belinskey v. Clooten, 237 Or App 106, 239 P3d 251 (2010), Sup Ct review denied

Reversal On Appeal

Reversal for new trial is not within purview of this section. Vandermeer v. Pacific Northwest Dev. Corp., 284 Or 517, 587 P2d 98 (1978)

To qualify for refiling after dismissal at trial or on appeal, trial proceeding must have been original action rather than court review of action by different tribunal. U.S. West Communications, Inc. v. Eachus, 124 Or App 325, 862 P2d 102 (1993)

Chapter 12

Notes of Decisions

An action for personal injuries caused by breach of implied warranty is clearly one for which "different limitation is prescribed by statute" under ORS 12.010 and thus is not governed by provisions of this chapter. Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973)

Source

Last accessed
Jun. 26, 2021

REMOVE ADS