536 November 28, 2023 No. the32

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., dissented and filed an opinion.

______________

** Balmer, J., retired December 31, 2022, and did not participate in the decision 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 commenced more than 10 years from the date of the act or omission complained of.” At issue in this case is whether that statute applies to actions in which the plaintiffs allege that their 

attorney negligently caused injury consisting solely of financial 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 defendant’s motion and entered a limited judgment, from which 

plaintiffs appealed.3

The Court of Appeals reversed the limited judgment, concluding that the statutory phrase “negligent injury 

1 Plaintiffs also named as a defendant their accounting firm for the transaction, 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 representation 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 limitations “[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 supplement 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 statutes of repose as reflecting “the public policy of allowing people, 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’ negligence claim. In a footnote, the Court of Appeals observed that its construction of 

the statute made it unnecessary to reach plaintiffs’ alternative, second assignment 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 history 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 defendants. 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 property” 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 modified 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 statutory 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 discipline 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 established 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 dictionaries 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 financial 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 meaning 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 legislature 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 audience 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 different context—also be terms of common usage, in the context 

of ORS 12.115(1), we agree with the parties that the legislature 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 property” was commonly understood as reaching injury that consisted 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 concept of “civil injury,” which was defined as “[i]njuries to person 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 contemporaneous authorities as including “everything which is the subject 
Cite as 371 Or 536 (2023) 543

of ownership, corporeal or incorporeal, tangible or intangible, 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 examining 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 reasonable 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 situations the cause of action accrued and the statute commenced 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 legislation 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 limitations 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 governs 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 legislature 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 reasoning might very well apply to mistakes of lawyers, engineers, title companies, and others. Thus, if a lawyer makes 

a mistake in giving an opinion as to the title to real property 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 negligence 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 applicable to extend the time for filing claims for other types of 

professional malpractice “in which a defendant’s negligence went understandably undetected until after the pertinent 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 representatives specifically named architects, engineers, lawyers, 

and accountants as professionals who might be liable under 

the reasoning of Berry for negligence that “went understandably 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 insurance 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 statute of limitations served as an outside limit 

for filing virtually 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 amendments 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 

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 complained of occurred unless otherwise directed by law,” but the House 

retained the Senate’s discovery rule for medical negligence involving a “foreign 

substance”—”otherwise direct[ing]” when those actions accrued. House Judiciary 

Committee Report on SB 134 (Apr 20, 1967).
Cite as 371 Or 536 (2023) 547

an outside limit of ultimate repose for negligence actions 

generally, and with a specific understanding that the limitation would apply to negligence actions against other professionals, 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’ client 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 recovery 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 underlying action; claim rejected only because negligence allegations 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 judgment 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 
548 Marshall v. PricewaterhouseCoopers, LLP

consisting of purely financial loss. See, e.g., Montara Owners 

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 ten-year statute of repose that would 

reach claims for negligent injury caused by lawyers, the 

legislature 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 legislative history that we have examined point to a legislative 

compromise that permitted all negligence claims to be governed 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 contextual 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 different, 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 
Cite as 371 Or 536 (2023) 549

of the 1971 legislature’s intent in enacting 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 general 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 performance 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 

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 performed 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

similar to the phrase that the 1967 Legislative Assembly 

had used to describe actions subject to the 10-year statute of 

ultimate repose. And they ask us to conclude from that similarity 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 sixyear 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 special 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 injuries caused “where in the course of any medical, dental, surgical or other professional treatment or operation,” a “foreign substance” was “negligently permitted 
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 origin for the structure, and the “chosen analogy” of a statute applicable to actions for medical and dental malpractice, 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 concluded that the 1971 Legislative Assembly did not intend 

the limitations in ORS 12.135 to apply to 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. 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 statute 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, 

to remain” within the patient’s body. ORS 12.110(4) (1967). By 1971, however, 

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

357 Or at 341. The Court of Appeals offered a slight variation 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, natural, and ordinary meaning’ of the ‘injury to person or property’ 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 SecuritiesIntermountain rejected the notion that the phrase “injury 

to a person or to property” had a plain, natural, or ordinary meaning that would exclude “financial ‘injuries’ from 

faulty performance.” 371 Or at 549-50 (quoting SecuritiesIntermountain, 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 “economic 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 relationship 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 
Cite as 371 Or 536 (2023) 553

v. West, 250 Or 114, 440 P2d 864 (1968)[.]”). Moreover, it 

is 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 decision, in which this 

court explained, “[i]n this opinion we use the term ‘economic 

losses’ to describe financial losses such as indebtedness 

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 existing 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 physical 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 

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

economic loss resulting from negligent infliction of bodily 

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 non-negligent 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 conclusion 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 negligence generally did not expose the negligent party to liability 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 negligent 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 liability 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 
Cite as 371 Or 536 (2023) 555

for negligently caused physical injury—the converse of the 

preference reflected in the economic loss doctrine.

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 negligent 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 statute. 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 different 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 different 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 terminology 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 legislature 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 
556 Marshall v. PricewaterhouseCoopers, LLP

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 

914 (2015). And we have already explained that the text and 

legislative history supply more direct evidence that the legislature compromised on a bill that would leave open the possibility 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 ultimate 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, 
Cite as 371 Or 536 (2023) 557

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, 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 contemporary 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 “property” 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 negligent injury to economic interests. Because the Court of 

Appeals held otherwise, it did not address plaintiffs’ alternative, second assignment of error, which challenged the 

10 We emphasize that the significance of the statute of repose is that it forecloses 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 undiscovered for more than a decade, the compromise that the legislature struck for 

ORS 12.115 falls disproportionately on the clients, whose claims will be foreclosed 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

trial court’s conclusion that ORS 12.115(1) bars plaintiffs’ 

claims. Our contrary construction of the statute makes it 

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 consideration 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 legislature 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 treatment 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 
Cite as 371 Or 536 (2023) 559

have simply announced that the term, by its very nature, 

was not of common usage, even if we later concluded the 

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 context.”). At other times, we have implied a more historically 

grounded approach, but, even then, included language minimizing 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”) (emphasis 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 picture. We have labeled the terms “lawful order,” “risk,” “danger,” “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,” “unconscionable,” “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) (“mental disease or defect”).
560 Marshall v. PricewaterhouseCoopers, LLP

Although terms of art can come from any discipline, legal terms of art pose a particular problem for courts. 

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 various ways. As the majority explains, certain legal definitions 

of “property” include “‘everything which is the subject of 

ownership, corporeal or incorporeal, tangible or intangible, 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 legislative members that terms that give rise to legally specific 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 arguments. ‘Valuable consideration’ raises a whole series of law 

school questions that ‘compensation’ does not. ‘Bona fide’ is 
Cite as 371 Or 536 (2023) 561

not only usually mispronounced but is subject to argument 

on its specific meaning.”)1

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 previous decisions which had treated similar language in different 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 

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 

the plural). A corpus is constructed in order to study a particular register (variety 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 implicate 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 methods. 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 academic standards; I suspect we are even worse linguistic researchers.
562 Marshall v. PricewaterhouseCoopers, LLP

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 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, penalties, 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 accepting the 

parties’ assertion that this is a term of art without examination. That critical examination alone is an improvement 

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 audience was those who would file, or defend against, a legal 

negligence action.” 371 Or at 542. Yet we have construed 
Cite as 371 Or 536 (2023) 563

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 

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 knowingly 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 historical 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 statutory 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 legislature 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 evidence 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 potential 
564 Marshall v. PricewaterhouseCoopers, LLP

cognitive bias into the process, resulting in potentially flawed 

history and, accordingly, potentially flawed identification of 

legislative intent. I would, therefore, employ the opposite 

presumption than the majority: that all terms employed by 

the legislature are terms of common usage, unless the context and the legislative record establishes that the legislature 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 intangible 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 tangibility. 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 statute, 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 ‘ejusdem generis.’” Bellikka v. Green, 306 Or 630, 636, 762 P2d 997 

(1988). Accordingly, when terms follow one another in a statute, and those terms begin narrowly, but conclude more generally, 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 question was enacted in 1967, we discussed, at some length, the 

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

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 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 checking 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 possessed; 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 choses 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 
566 Marshall v. PricewaterhouseCoopers, LLP

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 

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 nothing in 

the legislative history to indicate such a preference, and ordinarily, when the legislature uses different terms, we assume 

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 conversation, or for any injury to the person or rights of another, not arising in contract, 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 context 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

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, 287 Or App 

443, 451, 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 capture 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 common 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 reputation, 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 thereunto incident; a property, which may attend a man’s person wherever 

he goes, and from thence receives its denomination[.]” 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 everyone else 

2 I agree with Justice James’s dissent that we should look for legislative 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

from interfering with it.” Henry Campbell Black, Dictionary 

of Law Containing Definitions of the Terms and 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 contractual 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 
Cite as 371 Or 536 (2023) 569

to exercise extra care to avoid negligent injury, including 

injury resulting in purely financial losses. See Currey v. 

Butcher, 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 

reasonable 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 majority 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 certain 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 

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 question 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 architects 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 malpractice 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 legislative 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

motion “out of order.” Id. The bill passed out of committee 

and was approved by the Senate without any amendment 

covering malpractice claims other than medical malpractice. 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 malpractice 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 industries. See Tape Recording, House Committee on Judiciary, 

SB 134, Apr 19, 1967, Tape 79.

Ultimately, the House chose not to use allencompassing 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 

4At 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 commencing the statute of limitations until the injury was discovered or, in the exercise of reasonable care, should have been discovered by the patient. 245 Or at 316.
Cite as 371 Or 536 (2023) 571

other professional malpractice claims not otherwise provided for by law. In other words, the legislature was open to 

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 malpractice 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 legislature 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 
572 Marshall v. PricewaterhouseCoopers, LLP

have used the broader wording of “injury to person or rights 

of another” that already existed in ORS 12.110(1).

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 malpractice 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.