ORS 31.735¹
Distribution of punitive damages
  • notice to Department of Justice
  • order of application

(1) Upon the entry of a verdict including an award of punitive damages, the Department of Justice 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]

Notes of Decisions

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

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)

Law Review Cita­tions

26 WLR 755 (1990); 38 WLR 477 (2002)

  • California Punitive Damages Blog, Oct 27, 2009
    “In a pre­vi­ous post we reported that the Ninth Circuit had certified the following ques­tion to the Oregon Supreme Court: When a jury has returned a verdict that includes an award of punitive damages under Oregon law...”
1 Legislative Counsel Committee, CHAPTER 31—Tort Actions, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors31.­pdf (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 31, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­031ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information