Bundy v. Nustar GP LLC
| Decision Date | 26 January 2022 |
| Docket Number | A169235 |
| Citation | 317 Or.App. 193,506 P.3d 458 |
| Parties | Danny BUNDY, Plaintiff-Appellant, v. NUSTAR GP LLC, Defendant-Respondent, and Shore Terminals LLC, Defendant. |
| Court | Oregon Court of Appeals |
Carl Post, Portland, argued the cause for appellant. Also on the briefs was Law Offices of Daniel Snyder.
R. Daniel Lindahl, Portland, argued the cause for respondent. Also on the brief was Bullivant Houser Bailey PC.
James S. Coon and Thomas, Coon, Newton & Frost filed the brief amicus curiae for Oregon Trial Lawyers’ Association.
David L. Runner filed the brief amicus curiae for SAIF Corporation and BDI Staffing.
Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.
This appeal presents the question of statutory construction that was discussed but not resolved by the Supreme Court in the parties’ earlier appeal, Bundy v. NuStar GP, LLC , 362 Or. 282, 287, 407 P.3d 801 (2017) ( Bundy II ): whether ORS 656.019 provides a substantive exception to the exclusive remedy provision of the workers’ compensation scheme, or instead imposes a procedural limitation on when the claims described in the statute can be brought. We agree with the trial court that the legislature intended the latter, as evidenced by the express statement in ORS 656.019(1)(b) that "[n]othing in this subsection grants a right for a person to pursue a civil negligence action that does not otherwise exist in law." We therefore affirm.
Although this appeal presents only a statutory construction question, we provide an overview of the factual and procedural history that frames that question, in part because it reinforces the narrowness of our holding.
While employed by defendant as a terminal operator, plaintiff was exposed to dangerous levels of diesel, gasoline, and ethanol fumes, and defendant initially accepted a workers’ compensation claim for non-disabling exposure to gasoline vapors. Later, plaintiff sought compensation for additional conditions arising out of the same incident, but defendant indicated that it was treating each of plaintiff's subsequent requests as a "consequential condition claim" and denied them on the basis that plaintiff's work exposure was not the major contributing cause of the subsequent conditions. Plaintiff challenged those denials through the workers’ compensation system, but he was unable to establish that the work incident was the major contributing cause of his subsequent conditions, and the Workers’ Compensation Board ultimately issued a final order to that effect.
Meanwhile, plaintiff filed this civil action against defendant and attempted, through multiple amendments, to allege a claim for relief that would come within an exception to the immunity ordinarily afforded to employers by ORS 656.018. He eventually moved for leave to file a Fourth Amended Complaint, which would have alleged that the board's determination on major contributing cause brought his civil negligence claims against defendant within the scope of ORS 656.019. That statute provides, in part:
ORS 656.019(1)(a).
As we later discuss in more detail, ORS 656.019 was enacted in the wake of the Supreme Court's decision in Smothers v. Gresham Transfer, Inc. , 332 Or. 83, 23 P.3d 333 (2001), which held that the exclusive remedy provisions of ORS 656.018 were unconstitutional under Article I, section 10, of the Oregon Constitution, as applied to a workers’ compensation claim that had been denied for failure to prove that the work-related incident was the major contributing cause of the injury or condition for which the worker sought compensation. And, in light of Smothers , plaintiff advanced a fallback argument: In the event that his negligence claims for the noncompensable conditions were not within the exception provided by ORS 656.019, then the workers’ compensation scheme unconstitutionally denied him a remedy under Article I, section 10.
Defendant objected to the filing of the Fourth Amended Complaint. It did not dispute the underlying premise of plaintiff's statutory argument; that is, defendant assumed that the claims covered by ORS 656.019 were statutorily exempt from the exclusive remedy provision. However, defendant argued that ORS 656.019 was inapplicable because plaintiff's claim had been accepted, even if certain medical conditions were not compensable. Along those same lines, defendant argued that plaintiff had not been denied a remedy for purposes of a Smothers analysis under Article I, section 10, because he had not been denied recovery on his entire claim, only on certain conditions.
The trial court agreed with defendant's views of the statute and the constitutional question, denied leave for plaintiff to file his Fourth Amended Complaint, and entered judgment in defendant's favor. Plaintiff appealed, and in April 2016, we affirmed the court's ruling on both grounds, holding that ORS 656.019 was limited to entire claims and that, under Article I, section 10, plaintiff could not prevail under the reasoning in Smothers "when his claim for his legal injury was accepted and benefits paid." Bundy v. NuStar GP, LLC , 277 Or. App. 785, 806, 808, 373 P.3d 1141 (2016) ( Bundy I ).
And then came Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016). Less than a month after our decision in Bundy I , the Supreme Court issued its decision in Horton , which "overrule[d] Smothers " and "reaffirm[ed the Supreme Court's] remedy clause decisions that preceded Smothers , including the cases that Smothers disavowed." 359 Or. at 218, 376 P.3d 998.
Shortly thereafter, plaintiff sought review of Bundy I , but his petition did not address our holding regarding the Smothers issue or the effect of the court's recent decision in Horton ; rather, plaintiff raised only a question regarding our interpretation of ORS 656.019.1 The Supreme Court allowed the petition, explaining that it had taken the case to "consider whether the Court of Appeals correctly construed the scope of ORS 656.019." Bundy II , 362 Or. at 284, 407 P.3d 801. On that issue, the Supreme Court agreed with plaintiff that we had erred in our construction of what constitutes "the claim" for purposes of ORS 656.019, reasoning instead that the legislature used the phrase "in the expansive sense that encompasses claims—like plaintiff's—for a condition that is denied on major-contributing-cause grounds after an initial claim acceptance has been issued." Bundy II , 362 Or. at 297, 407 P.3d 801.
However, before remanding the case to the trial court based on that error, the Supreme Court addressed an alternative ground for affirmance raised by defendant. In its responsive briefing in the Supreme Court, defendant had "suggest[ed] for the first time that it dispute[d] the premise that underlies plaintiff's argument, contending that, regardless of the scope of ORS 656.019, the statute does not confer a ‘substantive right’ but merely establishes procedural requirements for filing actions that are otherwise exempt from the exclusive remedy provision." 362 Or. at 284-85, 407 P.3d 801.
Defendant, in arguing that ORS 656.019 established procedural requirements, highlighted the " ‘only after an order * * * has become final’ " text in ORS 656.019(1)(a), which, in defendant's view, addressed " ‘when an assumed right may be exercised’ without additionally creating the right." Id. at 298, 407 P.3d 801 (emphasis by defendant). Plaintiff responded that the "may pursue" language at the beginning of ORS 656.019(1)(a) should be read as an express grant of authority to pursue actions that fall within the scope of the statutory language.
The Supreme Court briefly entertained the merits of those competing arguments, noting some textual support for both perspectives. But that was as far as the court went. Notably, the court did not mention or discuss ORS 656.019 (1)(b), which provides that "[n]othing in this subsection grants a right for a person to pursue a civil negligence action that does not otherwise exist in law." Rather, the Supreme Court "expressly reserve[d] for another day * * * the comprehensive statutory analysis needed to resolve whether the legislature intended ORS 656.019 to function as a substantive exception to the exclusive remedy provision," and made clear that its "limited holding is not intended to preclude these or future parties from properly presenting an argument that the legislature did not intend ORS 656.019 to function as a substantive exception to the exclusive remedy provision." 362 Or. at 298-99, 407 P.3d 801.
The case was remanded to the trial court, and plaintiff filed his Fourth Amended Complaint. Defendant, predictably, moved to dismiss the complaint based on the same argument that it had raised in the Supreme Court.
Defendant contended (1) that ORS 656.019 addresses only when an injured worker may bring a negligence claim if that claim is authorized under some other source of law, and (2) that this court in Bundy I had already rejected plaintiff's argument that the application of ORS 656.018 was unconstitutional under Article I, section 10, a holding that plaintiff had not challenged and was therefore law of the case.
Plaintiff disputed both of those points, arguing that ORS 656.019 provides a substantive right to bring an action and that, if not, Article I, section 10, independently authorized his negligence claims. On the latter point, plaintiff argued that the law of the case doctrine was...
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Bundy v. NuStar GP, LLC
...history, the Court of Appeals held that statute to be solely procedural-that is, not a substantive exception to ORS 656.018. Bundy III, 317 Or.App. at 200-06 ("[W]e agree with the trial court that ORS 656.019(1)(a) has all the hallmarks of a procedural statute that governs the time for brin......