| Or. Ct. App. | Jan 28, 1971
This was a suit by the State Accident Insurance Fund (the Fund) to foreclose two liens for contribu
The basis for the trial court’s ruling was that the application of the Oregon statutes in a manner which would make the Fund’s lien prior to the previously established mortgages and judgments of the Bank would deprive the Bank of its property in violation of the due process and equal protection provisions of the United States Constitution. Because we are deciding that the Fund does not have a valid lien, it is unnecessary for us to determine the many constitutional questions decided by the trial court and raised by the appeal.
The Bank contends that priority should not be granted to the state’s liens because the procedures taken for the liens’ perfection were not proper. Subsection (3) of ORS 656.564
The Fund stipulated that in the absence of payment, it regularly sends out statements of the amount due. However, it does not treat such a statement as the demand which is a prerequisite to default. What the Fund treats as a formal demand
The Bank argues that the Fund’s procedures and interpretation of what constitutes “demand” would give the state a secret and inchoate lien which attaches at the time the payment is due
It is our duty to make sense out of an ambiguous statute and to construe it so that it can be applied in a reasonable manner. It is entirely unreasonable to believe that the legislature intended the demand provided for in ORS 656.560 to be one which could be withheld indefinitely at the option of the
Although the record indicates that statements of the amounts due were made, it does not show their date. Certainly, the first lien could not have been filed within seventy days (10 plus 60) from the time the amounts included therein were first billed to Beaver Creek. Some amounts included within the second lien could have been. However, it is impossible from the lien to tell to what extent. When lienable and non-lienable items are lumped together in a lien and they cannot be segregated without extrinsic evidence, the lien is unenforceable. Wiggins v. Southwood Park Corp. et al, 221 Or 61, 64, 350 P2d 436 (1960) and cases cited therein.
The judgment of the trial court giving priority to the Bank’s interest in the disputed property is affirmed.
ORS 656.564 (3): In order to avail itself of the lien created by this section, the fund shall, within 60 days after the employer is in default, as provided in ORS 656.560, file with the county clerk of the county within which such property is then situated a statement in writing * * *.
ORS 656.560 (2): If any contributing employer fails to make payment of contributions required within 10 days after a written demand by the State Accident Insurance Fund * * *, such employer is in default * * *.
A registered letter, specifying the amount due and stating that a specific penalty and interest will be saved if the amount due is paid within ten days and containing the following statement: “Our responsibility under the law requires the issuance of this statutory demand for payment, as provided in ORS 656.560.”
Usually, the 15th of the month following the month during which the work was performed. See ORS 656.504.