Marshall v. Cosgrave, Kester, Crowe, Gidley and Lagesen

JurisdictionOregon
Parties, 75 Ed. Law Rep. 527 Jeurine MARSHALL, Appellant, v. COSGRAVE, KESTER, CROWE, GIDLEY AND LAGESEN, Austin W. Crowe, Jr. and Michael C. Lewton (all partners individually named), Respondents. 89-12-07157; CA A67599.
Citation830 P.2d 209,112 Or.App. 384
CourtOregon Court of Appeals
Decision Date15 July 1992

Kevin Keaney, Portland, argued the cause for appellant. With him on the brief were Robert K. Udziela and Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.

Deborah L. Sather, Portland, argued the cause for respondents. With her on the brief was Cooney, Moscato & Crew, P.C., Portland.

Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.

RICHARDSON, Presiding Judge.

Plaintiff brought this legal malpractice action against defendants, contending that they negligently failed to perfect a petition for judicial review to this court from a Workers' Compensation Board order holding that plaintiff's injuries in an automobile accident did not arise out of and in the course of her employment and, therefore, that her claim was properly denied. The trial court granted a summary judgment for defendants on the ground that, had review been had, we would have affirmed the Board as a matter of law. Plaintiff appeals, and assigns error to the granting of defendants' motion. 1 We reverse.

We take the facts as found by the Board:

"Claimant is a media specialist for the self-insured employer, a school district. In addition to her work as a media specialist, she worked as an adult advisor to a group of students in a special advisory program. Her usual work hours are from 7:20 a.m. to 3:30 p.m., although she is not required to stay at school after 2:45 p.m. On September 21, 1987, claimant decided that she would bring some cupcakes to school the next morning in connection with meeting some of the goals of the advisory program. She sought and received approval of her plan from the counsellor in charge of the advisory program.

"Claimant's school is located in southeast Portland. Claimant resides in west Portland. Her usual route to and from work causes her to cross the Sellwood Bridge over the Willamette River. Claimant intended to purchase the cupcakes at a market on the west side of the Sellwood Bridge in her neighborhood. She checked out of the school at approximately 3 p.m. on September 21, 1987. She had a personal appointment at 4 p.m. on the west side of the Willamette River. She intended to drive to the market, pick up the cupcakes, then drive to her personal appointment, then drive home. While crossing the Sellwood Bridge on her way to the market she was involved in a head-on motor vehicle accident and received serious injuries. Later that evening, one of claimant's daughters, at claimant's request, called a teacher friend of claimant's and asked the friend if she would pick up a 'treat' and take it to school the next morning. The friend did so. Neither the counsellor in charge of the advisory program nor the school principal would have ordered anyone to obtain a 'treat' in lieu of the cupcakes claimant was unable to pick up."

In the opinion portion of its order, the Board explained that the counselor and the principal did not have the authority to direct anyone to pick up the treats. 2

The Board majority applied the "dual purpose" exception to the "going and coming" rule. We gave a general explanation of that exception in Hendrickson v. Lewis, 94 Or.App. 5, 8, 764 P.2d 577 (1988):

"An employe's injuries are generally not covered by workers' compensation if they are sustained while going to or coming from work. Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 539, 506 P.2d 486 (1973); Walker v. SAIF, 28 Or App 127, 129, 558 P2d 1270 (1977). The general principle, however, is subject to a number of exceptions. When a trip to or from work is combined with a business-related purpose, an injury incurred during the trip may be compensable."

The Board considered two issues to be decisive against plaintiff's compensation claim: First, she would have been at approximately the same place at the time that the accident occurred, regardless of whether she had been on her way to pick up the cupcakes or had been on her personal business; and, second, the employer would not have ordered another person to pick up the cupcakes if plaintiff had been unable to do so herself or arrange for someone else to do it. The dissenting board member stated, in part:

"My disagreement with the majority opinion centers around its statement that '[t]he question is whether the employer would have directed someone to make the trip for that purpose.' The majority's formulation of the exception is far too restrictive. As applied here, it has the unwarranted effect of precluding recovery simply because claimant exercised discretion in the performance of her job duties.

" * * * * *

"The relevant question is not whether the employer would have directed someone to make the trip, but rather whether the purpose of the trip was such that someone would have undertaken it if claimant had not been able to handle it in combination with her homeward journey. 1 Larson, Workers' Compensation Law, sec. 18.21 (1985). Stated otherwise, the relevant inquiry is whether the business purpose of the trip was important enough that claimant, or another employee, would have made the trip in the absence of the personal motive." (Emphasis in original.)

We agree with the dissent.

Plaintiff argues that, had we reviewed the Board's decision, we would have reversed it. Defendants disagree. They argue, first, that our review would have been for substantial evidence and that there was sufficient evidence in the whole record to support the Board's findings. That is correct but, as plaintiff answers, it has little to do with anything. The facts are not disputed; the question is how the law applies to them.

We do not agree with the Board that the fact that plaintiff would have been at the accident scene at the same time, whether on her employer's business or on her own, takes her out of the dual purpose exception, in the light of the fact that she was on her way to the job-related part of her planned activities at the time of the accident. See Munson v. State Ind. Acc. Comm., 142 Or. 252, 20 P.2d 229 (1933); Bebout v. SAIF, 22 Or.App. 1, 537 P.2d 563, aff'd 273 Or. 487, 541 P.2d 1293 (1975); see also Rosencrantz v. Insurance Service, 2 Or.App. 225, 467 P.2d 664 (1970). This case differs from Hendrickson v. Lewis, supra, and Gumbrecht v. SAIF, 21 Or.App. 389, 534 P.2d 1189 (1975), where the employees had completed their job-related tasks before they were injured.

The closer question is whether the fact that the employer would not have ordered someone to complete the mission if plaintiff had not would have defeated her workers' compensation claim. In Rosencrantz v. Insurance Service, supra, and again in Gumbrecht v. SAIF, supra, we quoted from 1 Larson, Workmen's Compensation Law 294.5-294.10, § 18.12 (1968):

"The basic dual-purpose rule, accepted by the great majority of jurisdictions, may be summarized as follows: when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with...

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2 cases
  • Rawlins v. Bohy
    • United States
    • Oregon Court of Appeals
    • 8 Diciembre 1993
    ...that, even if the Board's findings are supported by substantial evidence, its decision is inconsistent with Marshall v. Cosgrave, Kester, Crowe, Gidley, 112 Or.App. 384, 830 P.2d 209, rev. den. 314 Or. 391, 840 P.2d 709 (1992). In that case, the plaintiff was an advisor for a school distric......
  • Marshall v. Cosgrave
    • United States
    • Oregon Supreme Court
    • 29 Septiembre 1992
    ...709 840 P.2d 709 314 Or. 391 Marshall v. Cosgrave, Kester, Crowe NOS. A67599, S39394 Supreme Court of Oregon Sept 29, 1992 112 Or.App. 384, 830 P.2d 209. Peterson, J., would DENIED. ...

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