373 P.3d 1141
Or. Ct. App.2016Background
- Plaintiff, a terminal operator, inhaled fuel vapors during a VRU malfunction on Oct. 11–12, 2008 after supervisors instructed him to take prolonged air measurements without respirators. He later filed a workers’ compensation claim that was accepted for a nondisabling exposure; several other claimed conditions were denied and the denials were affirmed by the Board.
- Plaintiff sued NuStar and Shore Terminals in state court alleging negligence, negligence per se, and an ORS 656.156(2) deliberate-intention-to-injure claim against NuStar. Federal case asserting intentional harm had been dismissed for lack of diversity.
- The trial court previously dismissed negligence claims as time‑barred and barred by the workers’ compensation exclusive remedy (ORS 656.018) and dismissed the deliberate‑intention claim for failure to plead ultimate facts showing the employer intended to injure.
- After multiple amendments, plaintiff’s third amended complaint alleged (a) NuStar’s direct knowledge/failure to provide respirators and (b) that supervisors Dungan and Hudiburgh acted on NuStar’s behalf and knew injury was certain. The trial court dismissed that pleading with prejudice for failing to plead ultimate facts showing NuStar’s deliberate intent.
- Plaintiff sought leave to file a fourth amended complaint to resurrect negligence claims under ORS 656.019 (the post‑Smothers statutory allowance for negligence suits when a claim is finally determined noncompensable). The trial court denied leave, finding ORS 656.018 barred the claims because plaintiff’s workers’ compensation claim had been accepted and benefits received, and that no Smothers violation occurred.
- The court of appeals affirms: (1) third amended complaint fails to plead employer deliberate intent under ORS 656.156(2); (2) leave to assert negligence claims was properly denied because ORS 656.019 does not apply where a claim was accepted and benefits received, and no Article I, §10 (Smothers) violation was shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether third amended complaint plausibly alleges employer deliberate intention to injure under ORS 656.156(2) | Allegations of NuStar’s knowledge/failure to provide respirators and that supervisors acted for NuStar show NuStar determined to injure | Allegations are conclusory, on information and belief, and lack ultimate facts showing NuStar specifically intended to injure | Dismissal affirmed — allegations do not permit inference NuStar determined to injure an employee |
| Whether supervisors’ intent can be imputed to NuStar without alleging they wielded corporate executive power (Walthers test) | Supervisors were acting for NuStar at the Oregon terminal so their intent should be imputed | Imputation requires ultimate facts showing the supervisors wielded the whole executive power (not mere managerial titles) | Held: plaintiff failed to plead ultimate facts that supervisors wielded corporate power; respondeat superior insufficient for ORS 656.156(2) |
| Whether ORS 656.019 permits negligence claims where some claimed conditions were later denied but the workers’ compensation claim was accepted and benefits paid | ORS 656.019 authorizes negligence suits for denied conditions even if another claimed condition was accepted | ORS 656.019 applies only after an order determines the worker’s whole claim is noncompensable; acceptance and benefits preclude its use | Held: ORS 656.019 does not apply; negligence claims barred by ORS 656.018 because claim was accepted and benefits received |
| Whether application of the exclusive remedy (ORS 656.018) violates Article I, §10 (Smothers) because remedy was not constitutionally adequate | Plaintiff contends denial of some conditions and lack of proof of the benefits’ adequacy means no substantial remedy was available | Defendant/NuStar notes plaintiff received accepted‑claim benefits and plaintiff did not timely present evidence challenging adequacy; Stone forecloses remedy‑for‑some‑harms argument | Held: No Smothers violation shown; trial court did not err or abuse discretion in denying leave to amend |
Key Cases Cited
- Kilminster v. Day Management Corp., 323 Or. 618 (Supreme Court) (describing narrow standard for employer’s "deliberate intention" to injure)
- Lusk v. Monaco Motor Homes, Inc., 97 Or. App. 182 (Or. App.) (facts that may permit inference employer intended injury where equipment known toxic and employer refused safety measures)
- Bakker v. Baza’r, Inc., 275 Or. 245 (Supreme Court) (rejecting reliance on subsequent ratification to show employer deliberate intent)
- Hanson v. Versarail Systems, Inc., 175 Or. App. 92 (Or. App.) (respondeat superior cannot be used to satisfy ORS 656.156(2))
- Walthers v. Gossett, 148 Or. App. 548 (Or. App.) (corporate direct liability for intentional torts requires agent wielding whole executive power acting on corporation’s behalf)
- Smothers v. Gresham Transfer, Inc., 332 Or. 83 (Supreme Court) (two‑step remedy‑clause test: common‑law cause of action and adequacy of statutory substitute)
- Stone v. Finnerty, 182 Or. App. 452 (Or. App.) (Article I, §10 focuses on remedies for legal injuries, not specific types of harms; receipt of compensation for the legal injury can preclude a Smothers claim)
- Olsen v. Deschutes County, 204 Or. App. 7 (Or. App.) (defendant bears burden to plead and prove exclusivity; procedural posture matters when assessing adequacy of remedy)