Cope v. West American Ins. Co. of Ohio Cas. Group

• Decision Date: 25 January 1990
• Docket Number: INC,HURLEY-HENDERSO
• Citation: 309 Or. 232,785 P.2d 1050
• Court: Oregon Supreme Court
• Parties: , 4 A.L.R.5th 1101 Georgia COPE, Respondent on Review, v. WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an Ohio corporation, Hurley-Henderson Insurance, Inc., formerly known as Driscoll, Padgett & Hurley, Petitioners on Review. WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an Ohio corporation, Third-Party Plaintiff, v., an Oregon corporation, dba Hurley-Henderson Insurance, Inc., formerly known as Driscoll, Padgett & Hurley, Third-Party Defendant. 86-356 CV; CA A45475; SC S36012.

Page 1050

785 P.2d 1050

309 Or. 232, 4 A.L.R.5th 1101

Georgia COPE, Respondent on Review, v. WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an

Ohio corporation, Hurley-Henderson Insurance,

Inc., formerly known as Driscoll,

Padgett & Hurley, Petitioners

on Review.

WEST AMERICAN INSURANCE CO. OF the OHIO CASUALTY GROUP, an Ohio corporation, Third-Party Plaintiff, v. HURLEY-HENDERSON, INC., an Oregon corporation, dba

Hurley-Henderson Insurance, Inc., formerly known

as Driscoll, Padgett & Hurley,

Third-Party Defendant.

86-356 CV; CA A45475; SC S36012.

Supreme Court of Oregon In Banc.

Argued and Submitted June 15, 1989.

Decided Jan. 25, 1990.

Timothy C. Gerking, Medford, argued the cause, for petitioner on review, West American Ins. Co. of Ohio Cas. Group. Christopher A. Ledwidge, Medford, argued the cause, for petitioner on review, Hurley-Henderson Ins., Inc. The petition for review and additional memorandum were jointly filed and included Brophy, Wilson, Duhaime, Mills, Schmor & Gerking, Medford, and Frohnmayer, Deatherage, deSchweinitz, Pratt & Jamieson, Medford.

George W. Kelly, Eugene, filed a response and argued the cause, for respondent on review Cope.

CARSON, Justice.

This declaratory judgment action involves an automobile insurance policy coverage dispute between plaintiff-insured and defendants-insurers. The pivotal issue is whether an injury received by an employee who had parked her automobile in her employer's parking lot and was walking to work is a work-related injury compensable under workers' compensation law.

Plaintiff was employed by the Modoc Lumber Company in Klamath Falls. As a Modoc employee, plaintiff was permitted to park her vehicle in a parking lot located across a public street from her workplace. The lot was leased by Modoc and was available, free of charge, to Modoc employees. On September 25, 1985, plaintiff parked her vehicle in the parking lot and began to cross the parking lot on foot, on her way to work. Somewhere near the edge of the parking lot, plaintiff was struck by a vehicle driven by a co-employee, who was also on his way to work.

Plaintiff filed a claim against her employer for workers' compensation benefits. When that claim was denied on the basis that her injury was not work-related, plaintiff made a claim against the co-employee and his liability insurance carrier; she received $25,000, the limit of that policy. Plaintiff subsequently filed an underinsured motorist claim ¹ with defendants, her insurers, alleging damages beyond those for which she had received compensation. When that claim was denied, plaintiff filed this action for a declaration that she was covered under her policy and was entitled to a judgment for her remaining damages.

Defendants moved for summary judgment contending that, as a matter of law, ² plaintiff was not entitled to recovery under her insurance policy. Plaintiff's automobile insurance policy included underinsured motorist coverage, which provided that defendants would "pay damages which a covered person is legally entitled to recover from the owner or operator of an [underinsured] motor vehicle." (Emphasis added.) Defendants argue that plaintiff is not "legally entitled" to recover damages from her co-worker, because the sole remedy for her injury consists of workers' compensation benefits.

The circuit court granted defendants' motion. The Court of Appeals reversed. Cope v. West American Ins. Co., 95 Or.App. 114, 768 P.2d 410 (1989). We affirm the decision of the Court of Appeals.

ORS 656.018(1)(a) provides that:

"The liability of every employer who satisfies the duty [to provide workers' compensation] is exclusive and in place of all other liability arising out of compensable injuries to the subject workers * * *."

The scope of this exclusive remedy is expanded by ORS 656.018(3) to include compensable injuries caused by the ordinary negligence of other employees of the employer. Thus, workers' compensation benefits normally are the sole remedy for an employee who suffers a "compensable injury" at the hands of her employer or a co-worker. Kowcun v. Bybee, 182 Or. 271, 292, 295, 186 P.2d 790 (1947).

A compensable injury is "an accidental injury * * * arising out of and in the course of employment." ORS 656.005(7)(a). If plaintiff's injury arose out of and in the course of employment, she would be entitled to workers' compensation benefits. Because of the exclusivity of this remedy, she would, therefore, not be "legally entitled" to recover from her co-worker in such circumstance. Accordingly, if plaintiff's injury is compensable under the workers' compensation provisions, she may not recover against defendants.

Most workers' compensation statutes, including Oregon's, do not define when an injury "aris[es] out of and in the course of employment." See 1 Larson, The Law of Workmen's Compensation § 6.10 (1989). In Rogers v. SAIF, 289 Or. 633, 642-43, 616 P.2d 485 (1980), this court adopted a unitary "work-connection" approach:

"Although the relationship may be measured in different factual situations by the application of one test or another, the ultimate inquiry is the same: is the relationship between the injury and the employment sufficient that the injury should be compensable?

" * * * * *

" * * * If the injury has sufficient work relationship, then it arises out of and in the course of employment and the statute is satisfied. * * * "

The statutory criteria "arising out of employment" and "in the course of employment" are two parts of the single work-connection analysis. Phil A. Livesley Co. v. Russ, 296 Or. 25, 29, 672 P.2d 337 (1983).

Courts have struggled with the question of how strong the connection between employment and the injury must be. In respect of the temporal aspect of the requirement, there potentially is wide latitude:

"Theoretically, the courts could have started protection from the moment a man left his home and was definitely headed for work; or they could have gone to the other extreme and required the worker not only to be on the premises, but to don his overalls and start his first work-operation." Horovitz, Current Trends in Workmen's Compensation 671 (1947).

Oregon has resolved this issue generally by adopting the "going and coming rule" or limitation, which provides that injuries sustained while going to or coming from the place of employment normally are not compensable. SAIF v. Reel, 303 Or. 210, 216, 735 P.2d 364 (1987); Philpott v. State Ind. Acc. Com., 234 Or. 37, 40, 379 P.2d 1010 (1963). There are, however, some exceptions to the general rule that injuries sustained while going to or coming from work are not compensable.

For example, in Nelson v. Douglas Fir Plywood Co., 260 Or. 53, 488 P.2d 795 (1971), the plaintiff was injured on her way to work at the intersection of a public road and her employer's private road leading to her employer's plant. The injury occurred when her automobile was hit by her employer's truck, which was emerging from the private road. The evidence showed that most of the traffic in the area consisted of employees' automobiles and employer's trucks. While recognizing the general rule that injuries sustained while going to or coming from work are noncompensable, the court found that the plaintiff was in the course of her employment at the time of the injury:

" * * * It is immaterial whether the road the employee is required to travel in order to reach the plant is public or private if the employee is exposed to hazards in a greater degree than the common public.

" * * * If the employee's employment requires him to use an entrance or exit to or from his work which exposes him to hazards in a greater degree than the common public, he is regarded as being within the course of his employment." 260 Or. at 57, 488 P.2d 795. (Citations omitted.)

Thus, if an employee is subjected by reason of her employment to a greater hazard than the general public, an injury sustained while going to work may be compensable.

A second exception to the "going and coming rule" presents itself when the injury occurs on the employer's premises, including an employee parking lot:

"Oregon cases have uniformly held that injuries that occur in parking lots that are owned or maintained by the employer arise out of and in the course of employment and are compensable. If the injury occurs in a parking lot or other off-premises area over which the employer has no control, it is generally not compensable." Montgomery Ward v. Cutter, 64 Or.App. 759, 762, 669 P.2d 1181 (1983). (Citations omitted.)

Employer control over the premises is the rationale supporting the parking-lot exception. This rationale also has been applied in finding that injuries incurred in public places over which the employer exercises some control are compensable. In Montgomery v. State Ind. Acc. Com., 224 Or. 380, 356 P.2d 524 (1960), the plaintiff was injured on a public street in front of his place of employment as the plaintiff was leaving work. However, the employer previously had convinced city authorities to install a traffic control light at the scene of the accident, and the employer controlled the light. Thus, the court concluded that, although the injury occurred after work on a public street (and thus normally would not be compensable under the "going and coming rule"), the employee was in the course of employment because the injury occurred in an area over which the employer exercised some control.

Only infrequently has this court considered the range of factual circumstances that give rise to a conclusion of employer control of the accident scene. On the other hand, the Court of Appeals has had a number of such opportunities. Adamson v. The Dalles Cherry Growers, Inc., 54 Or.App. 52, 633 P.2d 1316 (1981), involved a worker slipping and falling on the street in front of her workplace, on her way to work. The Court of Appeals denied compensability, relying on the employer's lack of control....