Blacknall v. Westwood Corp., Developers and Contractors

CourtSupreme Court of Oregon
Citation307 Or. 113,764 P.2d 544
PartiesReese BLACKNALL, Petitioner on Review, v. WESTWOOD CORPORATION, DEVELOPERS AND CONTRACTORS, dba Westwood Construction Company, Respondent on Review. TC A8607, 03986; CA A43239; SC S34871.
Decision Date16 November 1988

Page 544

764 P.2d 544
307 Or. 113
Reese BLACKNALL, Petitioner on Review,
v.
WESTWOOD CORPORATION, DEVELOPERS AND CONTRACTORS, dba
Westwood Construction Company, Respondent on Review.
TC A8607, 03986; CA A43239; SC S34871.
Supreme Court of Oregon.
Argued and Submitted May 4, 1988.
Decided Nov. 16, 1988.

Page 545

Thomas W. Brown, Cosgrove, Kester, Crowe, Gidley & [307 Or. 114] Lagesen, Portland, argued the cause and filed a brief for respondent on review.

Robert K. Udziela, Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, filed a brief amicus curiae on behalf of Oregon Trial Lawyers Ass'n.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and GILLETTE, JJ. *

[307 Or. 115] PETERSON, Chief Justice.

This is a tort action brought by a worker against an employer for damages for personal injuries. The plaintiff was employed by Adia Services, Inc. (Adia), a corporation that provided temporary workers to its clients. He was injured while working at defendant Westwood Corporation's construction site and brought this negligence action against the defendant.

ORS 656.020 states that damage actions may be brought "by an injured worker * * * against any employer who has failed to comply with ORS 656.017 * * *." ORS 656.017(1) requires subject employers to "maintain assurance * * * that subject workers of the employer * * * will receive compensation for compensable injuries" by either buying workers' compensation insurance coverage or by qualifying as a "self-insured employer." With exceptions not relevant here, the statute immunizes employers maintaining such assurance from tort claims arising from injury to their subject workers. ORS 656.018. The question in this case is whether the defendant, who had coverage for its "regular" hourly and salaried workers, has complied with ORS 656.017. If it did, it is immune from tort liability to the plaintiff. If it did not, it is not immune. The trial court and Court of Appeals, 89 Or.App. 145, 747 P.2d 412, ruled in favor of the defendant. We affirm.

THE FACTS

This case was decided on the defendant's motion for summary judgment. The material facts set forth below are not in dispute.

Adia engages in the business of providing temporary workers--clerical, accounting, banking, word processing, secretarial, light industrial, factory and warehouse employees--to its customers. The defendant sent a work order to Adia requesting that Adia "[f]urnish labor as requested for clean up work, complete with employee insurance and workmen's [sic] compensation as quoted in your hourly rate per man hour." Adia sent the plaintiff. Adia's hourly rate for the plaintiff's services, paid by the defendant, included workers' compensation insurance premiums which Adia paid on behalf of the plaintiff. The defendant directed the plaintiff when to come to and leave work, where to work, what work to do, and it could [307 Or. 116] terminate the plaintiff's services at any time. The agreement between Adia and the defendant provided that "the supervision of the assigned Adia Personnel Services employee for the agreed upon duties is [the defendant's] responsibility."

The agreement between Adia and the defendant also required that Adia provide workers' compensation coverage in favor of persons such as the plaintiff. As stated above, the fee that Adia charged to the

Page 546

defendant included an amount for workers' compensation premiums.

The defendant had procured workers' compensation coverage from SAIF for its employees. Adia procured workers' compensation coverage from CNA which extended to the plaintiff. After the plaintiff was injured, CNA provided workers' compensation benefits to the plaintiff.

The plaintiff makes two assertions of error:

"1. Did the trial court err in holding that as a matter of law plaintiff was an employee of defendant?

"2. Did the trial court err in ruling that defendant was a complying employer for the purposes of ORS 656.018 and that defendant is immune from tort liability?"

The answers to these questions largely are determined by Oregon's Workers' Compensation Law, and we therefore turn to it.

THE WORKERS' COMPENSATION STATUTES

ORS 656.005(27) defines a "worker" as

" * * * any person * * * who engages to furnish services for a remuneration, subject to the direction and control of an employer * * *."

There is no doubt that the plaintiff was a "worker."

A "subject worker" is defined in ORS 656.005(25) as "a worker who is subject to this chapter * * *." There is no question but that the plaintiff was a "subject worker."

An "employer" is defined in former ORS 656.005(14) (now ORS 656.005(13)) as

" * * * any person * * * who contracts to pay a remuneration...

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