Marshall v. Cosgrave, Kester, Crowe, Gidley and Lagesen
Jurisdiction | Oregon |
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. |
Citation | 830 P.2d 209,112 Or.App. 384 |
Court | Oregon Court of Appeals |
Decision Date | 15 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.
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:
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):
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:
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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Rawlins v. Bohy
...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......
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Marshall v. Cosgrave
...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. ...