(1) Upon the entry of a verdict including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award to which the Criminal Injuries Compensation Account is entitled pursuant to paragraph (b) of this subsection, and the punitive damage portion of an award shall be allocated as follows:
(a) Forty percent shall be paid 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 shall be paid to the Criminal Injuries Compensation Account of the Department of Justice Crime Victims’ Assistance Section to be used 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.
(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]
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)
On behalf of Criminal Injuries Compensation Account, state intervened after verdict and before judgment, but did not state claim because it had no interest in nor knowledge of case beyond its statutory right to portion of punitive damages award when distributed. Eulrich v. Snap-On Tools Corp., 103 Or App 610, 798 P2d 715 (1990)
Because state's right under this provision is triggered only when fund capable of distribution exists, state may not interfere in actual prosecution of action. Eulrich v. Snap-On Tools Corp., 103 Or App 610, 798 P2d 715 (1990)
Allowing recovery of attorney fees under this provision does not preclude recovery under ORS 646.638 (Civil action by private party) (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)
26 WLR 755 (1990); 38 WLR 477 (2002)
(2007) (last accessed Feb. 12, 2009).
(2007) (last accessed Feb. 12, 2009).