Opinion
16-88-08970; CA A61564
On appellant's petition for reconsideration filed October 15 1990.
Of opinion ( 103 Or. App. 381, 797 P.2d 399) filed September 12, 1990. Petition for reconsideration denied January 23, 1991
Appeal from Circuit Court, Lane County, Maurice K. Merten, Judge.
David C. Force and Vick Gutzler, for petition.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Petition for reconsideration denied.
Newman, J., dissenting.
Plaintiff petitions for review of our decision. We treat the petition as a petition for reconsideration. ORAP 9.15. It is denied.
Petition for reconsideration denied.
I dissent from the denial of the petition for reconsideration. Even if, after reconsideration, we would reach the same result as in our opinion, we should correct it, because it is decided on incorrect grounds.
We held that, under former ORS 133.739, the limitation period had run against plaintiff's claim, because the period commenced when the interception occurred. 103 Or. App. 381, 384, 797 P.2d 399 (1990). That statute provides for an action within two years by
"any person whose * * * oral communication was intercepted, disclosed or used in violation of ORS 133.724 or 133.737 * * *." (Emphasis supplied.)
Plaintiff's complaint alleges that he was injured by disclosure or use of his oral communication. The statute speaks in the disjunctive. Contrary to its plain language, our opinion required that plaintiff have commenced the action within two years after the interception of his oral communication. We should allow the petition and reconsider our opinion accordingly.