Hanson v. Versarail Systems, Inc.

• Decision Date: 27 June 2001
• Citation: 175 Or. App. 92,28 P.3d 626
• Parties: Craig R. HANSON, Appellant, v. VERSARAIL SYSTEMS, INC., an Oregon corporation, fka Halvorsen Industries, Inc., dba Baerts Metal Products, Respondent, and Seth A. McNair, Defendant.
• Court: Oregon Court of Appeals

28 P.3d 626

175 Or. App. 92

Craig R. HANSON, Appellant, v. VERSARAIL SYSTEMS, INC., an Oregon corporation, fka Halvorsen Industries, Inc., dba Baerts Metal Products, Respondent, and Seth A. McNair, Defendant.

9810-07146; CA A107956

Court of Appeals of Oregon.

Argued and Submitted September 18, 2000.

Decided June 27, 2001.

Gerald C. Doblie, Portland, argued the cause for appellant. With him on the brief was Doblie & Associates.

Alan Gladstone, Portland, argued the cause for respondent. With him on the brief were Paul R. Xochihua and Abbott, Davis, Rothwell, Mullin & Earle, P.C.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

KISTLER, J.

Plaintiff brought this tort action to recover from his supervisor and his employer for injuries he sustained when his supervisor hit him. Plaintiff's employer moved for summary judgment, arguing that the exclusive remedy provisions of the workers' compensation laws barred plaintiff's tort claims against it. The trial court agreed. Plaintiff appeals, and we affirm.

Because this case comes to us on summary judgment, we recite the facts in the light most favorable to plaintiff, the nonmoving party. Plaintiff works as a painter for defendant Versarail Systems, Inc. (VSI). While at work, plaintiff was involved in a heated argument with his supervisor, defendant McNair. During their argument, McNair struck plaintiff on the side of the head.¹ Plaintiff reported the incident to the appropriate VSI officials. A few days later, plaintiff, McNair, a VSI superintendent, and another senior VSI official met to discuss the incident and an appropriate course of action. Although the employee handbook provided for the immediate termination of any employee involved in a fight, VSI declined to take any action against either plaintiff or McNair.

After receiving workers' compensation benefits for his injuries, plaintiff brought an action against McNair and VSI, alleging that McNair was directly liable for assault and battery and that VSI was vicariously liable for McNair's conduct. VSI moved for summary judgment, arguing that the exclusive remedy provisions of the workers' compensation laws barred plaintiff's tort claims against it. VSI acknowledged that ORS 656.156(2) authorizes a worker to bring a tort claim against his or her employer for injuries that the employer deliberately intended. It argued, however, that the requirement that the employer deliberately intend the injury prevented plaintiff from relying on the doctrine of respondeat superior to bring an action against it under that subsection. Plaintiff responded that nothing in the workers' compensation laws precluded him from relying on that doctrine. As the parties framed the issue before the trial court, the only question was whether plaintiff could rely on the doctrine of respondeat superior to come within the deliberate injury exception.² The trial court agreed with VSI, granted its summary judgment motion, and entered judgment in its favor. See ORCP 67 B.

On appeal, plaintiff argues that his claims against VSI come within the terms of ORS 656.156(2). That statute provides:

"If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker * * * may take under this chapter, and also have cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes."

Plaintiff advances two arguments on appeal why he may pursue a tort claim against VSI under that exception. He argues primarily, as he did below, that nothing in the workers' compensation laws precludes him from relying on the common-law doctrine of respondeat superior. Alternatively, plaintiff appears to argue that his supervisor is his "employer" for the purposes of ORS 656.156(2). We address plaintiff's respondeat superior argument first.

Workers who are injured in the course and scope of employment are entitled to receive certain benefits from their employers, and, with some notable exceptions, those benefits are exclusive of all other remedies that would otherwise be available to the worker. ORS 656.018; see also Nicholson v. Blachly, 305 Or. 578, 581, 753 P.2d 955 (1988)

. The workers' compensation scheme involves a quid pro quo, in which the employer gives up the right to defend against certain actions involving workplace injuries, while receiving the benefit of a limit on potential damages. Conversely, the employee is compensated for injuries regardless of whether the employer would be liable in tort, while giving up the right to pursue other statutory or common-law remedies. See Shoemaker v. Johnson, 241 Or. 511, 518-19, 407 P.2d 257 (1965) (discussing "the present-day needs of society [to] provid[e] a means whereby an employee was guaranteed a monetary recovery" but spared certain costs and risks associated with litigation). But see Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001) (recognizing constitutionally mandated exceptions to that statutory principle).

The exceptions to the exclusive remedy rule include the one at issue here—the deliberate and intentional injury exception found in ORS 656.156(2). Similarly, ORS 656.018(3)(a) allows separate actions by an injured worker against fellow employees, contracted agents, officers, and directors of the employer "[w]here the injury * * * is proximately caused by willful and unprovoked aggression." Taken together, these statutes allow an injured worker to bring a separate action against the employer where the employer has intentionally injured the worker and against certain individual tortfeasors in comparable circumstances.³ The primary reason for exempting these types of injuries is that they do not fit within the quid pro quo rationale described above. An employee does not expect to be intentionally injured as part of the employment contract, and an employer should not expect to be shielded from liability for such conduct. Put differently, the statute provides relief from the exclusive remedy rule where the employer should be held fully responsible for its misconduct. See Jenkins v. Carman Mfg. Co., 79 Or. 448, 453, 155 P. 703 (1916) (stating that statute's use of "deliberate" intent denotes "design and malignity of heart").

With that backdrop, we turn to the question whether ORS 656.156(2) permits the use of respondeat superior to attribute a co-worker's acts to the employer. As with any other case involving statutory construction, we seek to ascertain the legislature's intent by first examining the statute's text and context. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). By its terms, the statute creates an exception to the general exclusive remedy rule by allowing a separate action when the employer intended to injure the worker. Textually, the exception applies when the employer, not an employee, has acted deliberately and intentionally.

In reviewing the text and context of a statute, we also look to the cases that have interpreted it. See Holcomb v. Sunderland, 321 Or. 99, 105, 894 P.2d 457 (1995)

. The exception in ORS 656.156(2) was part of the original workers' compensation laws passed in 1913, see Kilminster v. Day Management Corp., 323 Or. 618, 630, 919 P.2d 474 (1996), and the court has consistently construed the exception narrowly, Bakker v. Baza'r, Inc., 275 Or. 245, 253, 551 P.2d 1269 (1976); see also Jenkins, 79 Or. at 453-54, 155 P. 703; Lusk v. Monaco Motor Homes, Inc., 97 Or.App. 182, 186-89, 775 P.2d 891 (1989). In Bakker, the plaintiff brought an action against her employer based on a fellow employee's alleged battery, arguing that the claim fell within the intentional injury exception in ORS 656.156(2). The plaintiff alleged that the employee was acting within the course and scope of his employment and that the employer had "ratified" the conduct. The court concluded that:

"It should be apparent from the facts of this case that plaintiff's injury did not result from the `deliberate intention' of her employer as the term has been interpreted by this court. In this case there is no evidence that the defendant employer ever intended to injure anyone. Moreover, unless the injury `results' from the employer's conduct, the injured employee's cause of action does not fall within the statutory exception set forth in ORS 656.156(2). It is difficult to see how any injury could be said to result from a subsequent ratification of the tortious conduct which produced it. Similarly, a subsequent ratification of the tortious conduct cannot evidence a `deliberate intention * * * to produce such injury,' since, necessarily, the ratification occurs after the injury has been sustained. Thus, we conclude that plaintiff has not brought herself within the statutory exception set forth in ORS 656.156(2)."

Id. at 254, 551 P.2d 1269 (emphasis in original). The court then quoted a well-known treatise on workers' compensation:

" `Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort that he has a right to consider exclusively covered by the compensation system.' "

Id. at 254 n. 7, 551 P.2d 1269 (quoting Arthur Larson, 2A The Law of Workmen's Compensation Law § 68.21 (1976)).

The court's analysis in Bakker forecloses plaintiff's argument that the doctrine of respondeat superior applies under ORS 656.156(2).⁴ Nonetheless, plaintiff argues that, in opinions after Bakker, the Supreme Court and this court have indicated an increased willingness to apply a respondeat superior analysis to this exception. For example, in Kilminster, a deceased worker's personal representatives brought a wrongful death action against the decedent's employer based on injuries sustained while falling from a...