ORS 31.735
Distribution of punitive damages

  • notice to Department of Justice
  • order of application

(1)

Upon the entry of a verdict including an award of punitive damages, the Department of Justice becomes a judgment creditor as to the amounts payable under paragraphs (b) and (c) of this subsection, and the punitive damage portion of an award shall be allocated as follows:

(a)

Thirty percent is payable to the prevailing party. The attorney for the prevailing party shall be paid out of the amount allocated under this paragraph, in the amount agreed upon between the attorney and the prevailing party. However, in no event may more than 20 percent of the amount awarded as punitive damages be paid to the attorney for the prevailing party.

(b)

Sixty percent is payable to the Attorney General for deposit in the Criminal Injuries Compensation Account of the Department of Justice Crime Victims’ Assistance Section, and may be used only for the purposes set forth in ORS chapter 147. However, if the prevailing party is a public entity, the amount otherwise payable to the Criminal Injuries Compensation Account shall be paid to the general fund of the public entity.

(c)

Ten percent is payable to the Attorney General for deposit in the State Court Facilities and Security Account established under ORS 1.178 (State Court Facilities and Security Account), and may be used only for the purposes specified in ORS 1.178 (State Court Facilities and Security Account) (2)(d).

(2)

The party preparing the proposed judgment shall assure that the judgment identifies the judgment creditors specified in subsection (1) of this section.

(3)

Upon the entry of a verdict including an award of punitive damages, the prevailing party shall provide notice of the verdict to the Department of Justice. In addition, upon entry of a judgment based on a verdict that includes an award of punitive damages, the prevailing party shall provide notice of the judgment to the Department of Justice. The notices required under this subsection must be in writing and must be delivered to the Department of Justice Crime Victims’ Assistance Section in Salem, Oregon within five days after the entry of the verdict or judgment.

(4)

Whenever a judgment includes both compensatory and punitive damages, any payment on the judgment by or on behalf of any defendant, whether voluntary or by execution or otherwise, shall be applied first to compensatory damages, costs and court-awarded attorney fees awarded against that defendant and then to punitive damages awarded against that defendant unless all affected parties, including the Department of Justice, expressly agree otherwise, or unless that application is contrary to the express terms of the judgment.

(5)

Whenever any judgment creditor of a judgment which includes punitive damages governed by this section receives any payment on the judgment by or on behalf of any defendant, the judgment creditor receiving the payment shall notify the attorney for the other judgment creditors and all sums collected shall be applied as required by subsections (1) and (4) of this section, unless all affected parties, including the Department of Justice, expressly agree otherwise, or unless that application is contrary to the express terms of the judgment. [Formerly 18.540; 2011 c.597 §311; 2011 c.689 §1]
Note: Section 3, chapter 689, Oregon Laws 2011, provides:
Sec. 3. The amendments to ORS 31.735 (Distribution of punitive damages) by section 1 of this 2011 Act apply only to causes of action that arise on or after the effective date of this 2011 Act [August 2, 2011]. [2011 c.689 §3]

Source: Section 31.735 — Distribution of punitive damages; notice to Department of Justice; order of application, https://www.­oregonlegislature.­gov/bills_laws/ors/ors031.­html.

Notes of Decisions

Jury instruction based on this section which told jury that award of punitive damages would be distributed among prevailing party and their attorney and Criminal Injuries Compensation Account, injected into jury deliberation factors not properly considered in deciding whether to award punitive damages and amount thereof. Honeywell v. Sterling Furniture Co., 99 Or App 94, 781 P2d 379 (1989), modified 310 Or 206, 797 P2d 1019 (1990)

Allowing recovery of attorney fees under this provision does not preclude recovery under ORS 646.638 (3). Honeywell v. Sterling Furniture Co., 310 Or 206, 797 P2d 1019 (1990)

State’s entitlement to share of punitive damages award applies to award made in federal case arising under state law. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

Because plaintiff has no inherent right or interest in punitive damages award, claim by state to share of award does not violate provisions of Oregon Constitution regarding remedy for injury, trial by jury, reexamination of factual determination by jury, taking of property or taxation. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

Requirement that state be listed as judgment creditor for share of punitive damages award does not impermissibly intrude on judicial functions. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

State’s statutory share of punitive damages award is not taking of property or imposition of excessive fine in violation of United States Constitution. Engquist v. Oregon Department of Agriculture, 478 F3d 985 (9th Cir. 2007)

State has standing to enforce state interest in award of punitive damages. MAN Aktiengesellschaft v. DaimlerChrysler AG, 218 Or App 117, 179 P3d 675 (2008)

Consent of Department of Justice is not prerequisite to post-verdict, pre-judgment settlement between parties. Patton v. Target Corporation, 349 Or 230, 242 P3d 611 (2010); Patton v. Target Corporation, 627 F3d 1304 (9th Cir. 2010)

Only after court has entered judgment awarding punitive damages does state have right as judgment creditor to enforce that portion of award to be allocated to state for deposit in Criminal Injuries Compensation Account. Williams v. RJ Reynolds Tobacco Company, 351 Or 368, 271 P3d 103 (2011)

State’s interest in portion of punitive damages award to be allocated to state for deposit I Criminal Injuries Compensation Account arises by operation of law in any case in which punitive damages are awarded, without regard to nature of underlying litigation. Williams v. RJ Reynolds Tobacco Company, 351 Or 368, 271 P3d 103 (2011)

Where estate entered into agreement with its attorneys that attorneys would receive 40 percent of gross amount collected from estate’s action filed against corporation and estate received punitive damages award, and attorneys represented estate in subsequent related matter against state that resulted in another money award to estate, fee cap in this section applies only to punitive damages award from first action and not to all moneys received by estate. Williams v. Gaylord, 268 Or App 107, 341 P3d 202 (2014), Sup Ct review denied

Law Review Citations

26 WLR 755 (1990); 38 WLR 477 (2002); 46 WLR 449 (2010)

31.150
Special motion to strike 31.152
Time for filing special motion to strike 31.155
Exempt actions 31.180
Certain felonious conduct of plaintiff complete defense in tort actions 31.200
Liability of radio or television station personnel for defamation 31.205
Damages recoverable for defamation by radio, television, motion pictures, newspaper or printed periodical 31.210
When general damages allowed 31.215
Publication of correction or retraction upon demand 31.220
Effect of publication of correction or retraction prior to demand 31.225
Publisher’s defenses and privileges not affected 31.230
Wrongful use of civil proceeding 31.250
Mandatory dispute resolution for certain actions against health practitioners and health care facilities 31.260
Definitions for ORS 31.260 to 31.278 31.262
Notice of adverse health care incident 31.264
Discussion of adverse health care incident 31.266
Discussion communications 31.268
Mediation 31.270
Payment and resolution 31.272
Statute of limitations 31.274
Patient representatives 31.276
Duties of Oregon Patient Safety Commission 31.278
Use of information relating to notice of adverse health care incident 31.280
Task Force on Resolution of Adverse Health Care Incidents 31.300
Pleading requirements for actions against design professionals 31.350
Pleading requirements for actions against real estate licensees 31.360
Proof required for claim of economic damages in action arising from injury caused by dog 31.370
Presumption of absence of negligence if defendant conducts criminal records check through Department of State Police 31.550
“Advance payment” defined 31.555
Effect of advance payment 31.560
Advance payment for death or personal injury not admission of liability 31.565
Advance payment for property damage not admission of liability 31.580
Effect of collateral benefits 31.600
Contributory negligence not bar to recovery 31.605
Special questions to trier of fact 31.610
Liability of defendants several only 31.615
Setoff of damages not allowed 31.620
Doctrines of last clear chance and implied assumption of risk abolished 31.700
Right to include medical expenses paid by parent or conservator in action to recover for damages to child 31.705
Economic and noneconomic damages separately set forth in verdict 31.710
Limitation on award for noneconomic damages in claim for wrongful death 31.715
Limitation on recovery of noneconomic damages arising out of operation of motor vehicle 31.725
Pleading punitive damages 31.730
Standards for award of punitive damages 31.735
Distribution of punitive damages 31.740
When award of punitive damages against health practitioner prohibited 31.760
Evidence of nonuse of safety belt or harness to mitigate damages 31.770
Inadmissibility of calculation of future earning potential based on race or ethnicity 31.800
Right of contribution among joint tortfeasors 31.805
Basis for proportional shares of tortfeasors 31.810
Enforcement of right of contribution 31.815
Covenant not to sue 31.820
Severability 31.825
Assignment of cause of action against insurer 31.980
Action for alienation of affections abolished 31.982
Action for criminal conversation abolished
Green check means up to date. Up to date

Current through early 2024

§ 31.735’s source at oregon​.gov