David Runner’s Appellate Updates: November 3, 2017

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David Runner’s Appellate Updates: November 3, 2017

Two workers’ comp-related civil action decisions:

  David Runner/SAIF


Zeferino Vasquez v. Double Press Mfg. Inc., 288 Or App 503 (2017) (Armstrong, J.)

In this third-party civil action, the plaintiff argued, among other things, that the $500,000 cap on noneconomic damages imposed by ORS 31.710(1) does not apply to actions governed by the third-party provisions of the Workers’ Compensation Law.  The argument was based on an exception in ORS 37.710(1) “for claims subject to . . . ORS chapter 656.”

The court ruled that the statutory exception applies only to benefits payable on workers’ compensation claims, not to recovery on civil actions that arise independent of that law and are merely governed by the third-party provisions of ORS chapter 656.  In other words, the damages cap does not limit the amount of compensation payable under the Workers’ Compensation Law, just how much is recoverable in a third-party civil action.

Nonetheless, the court held that the damages cap was unconstitutional in that particular case under Article I, section 10, of the Oregon Constitution.  The plaintiff had been “nearly cut in half” at the waist by a machine in a work-related accident, and was a permanent paraplegic.  The jury had awarded noneconomic damages against the manufacturer of the machine totaling $4,860,000.  Under those circumstances, the court concluded that $500,000 in noneconomic damages was not “substantial” enough for the plaintiff’s injuries to constitute an adequate “remedy” under Article I, section 10.

Ashley Schutz v. La Constita III, Inc., O’Brien Constructors, LLC, et al., 288 Or App 476 (2017) (Hadlock, C.J.)

In this civil negligence action, the plaintiff sued parties that included her employer, O’Brien Constructors, LLC, and one of its owners, who was also the plaintiff’s supervisor.  The action is based on alleged negligence by the employer in failing to properly train, supervise, or warn the plaintiff concerning an after-work gathering at a bar that led to her intoxication and ultimately to a head-on motor vehicle accident on the way home from the bar.  She also contended that she was pressured by her supervisor to attend the gathering, and was encouraged to drink to the point of intoxication.

The plaintiff had previously pursued a workers’ compensation claim against her employer for her injuries, but the claim was denied and the denial was upheld on course and scope grounds.  Schutz v. SAIF, 253 Or App 541 (2012).  In this subsequent civil action, the employer and owner contended that they were was not liable under ORS 471.565(1), which extends immunity to a “social host” for any claim for damages caused by the voluntary consumption of alcohol.  The court agreed that the defendants were immune under that statute, but then held that the statute was unconstitutional under Article I, section 10, of the Oregon Constitution, in that it completely denied the plaintiff a remedy against the allegedly negligent parties.  The trial court had granted summary judgment in favor of the defendants under this immunity statute.  Given the Court of Appeals’ conclusion that the statute was unconstitutional, the court reversed the trial court’s judgment and remanded the case to that court for further proceedings.

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David Runner is an attorney with SAIF Corporation who periodically provides updates of important Oregon workers’ compensation litigation; used with permission. Click here to contact David.