Gattucio v. Averill

For the purpose of determining liability under ORS 124.115, a "person" refers to the defendant entity itself, not to natural persons acting on behalf of the entity.

The estate of Gattuccio sued Averill and the O.N. Equity Sales Company (ONESCO) for elder abuse, alleging that Averill, as Gattuccio’s financial and investment advisor and in her capacity as an employee of ONESCO, wrongfully obtained more than $500,000 from Gattuccio. Averill was criminally convicted of 16 criminal offenses, including elder abuse, as a result of the alleged conduct. The trial court in the civil case dismissed Gattuccio’s claim for failure to state a claim, holding that ONESCO was exempt from liability for elder abuse because broker-dealers are exempt from liability for civil actions for elder abuse in Oregon. Gattuccio appealed, arguing that under ORS 124.115(2), which removes the civil liability exemption if “the person is convicted of a crime by reason of the conduct,” ONESCO should be held liable for elder abuse because Averill, as a person through which ONESCO acts, was convicted of crimes related to the conduct. ONESCO contends that, for the purposes of the statute, a “person” is the entity which the plaintiff claims is liable, and does not include natural persons acting on the behalf of the organization. The Oregon Court of Appeals held that in order for ORS 124.115(2) to apply, the defendant entity itself must be convicted of the crime; the statute in question does not apply to situations in which an employee of the corporation is convicted of the crime. Affirmed.