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Brewer v. Department of Fish and Wildlife5/10/2000
eir employees are immune from liability for any claim for injury or death to any person covered by any workers' compensation law. That statute provided immunity for both Tri-Met and the bus driver who struck the plaintiff's decedent. The question before the court was whether ORS 30.265(3) violated Article I, section 10, by denying plaintiff a remedy in due course of law. The court concluded that the $3,000 burial fee did not provide a substantial remedy to compensate the decedent's surviving parents and that they had been left wholly without a remedy. Neher, 319 Or at 426-27. The court then turned to the question of whether ORS 30.265(3) violated the remedies clause of Article I, section 10. The court concluded that the wrongful death statute recognized "the existence of a right to recovery for surviving parents for damages to compensate them" for certain types of loss but that ORS 30.265(3)(a) operated "to abolish the parents' remedy under circumstances such as those present in this case[.]" Neher, 319 Or at 428. The court thus concluded that ORS 30.265(3)(a) did not permissibly abolish a right but unconstitutionally abolished a remedy for a recognized right. Id.
Neher is the strongest case supporting plaintiffs' position. It can be analogized fairly closely to this case: If the wrongful death statute recognizes the existence of a right for a personal representative to recover damages to compensate beneficiaries such as surviving parents, then the Act, like ORS 30.265(3)(a), could be said to abolish the beneficiaries' right to a remedy under the particular circumstances present here.
However, several other recent cases from the Oregon Supreme Court indicate that the analysis is not quite so straightforward. Most recently, the court discussed the remedies clause of Article I, section 10, in Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996). There, the court again was faced with the question whether a statutory enactment that precluded recovery for wrongful death under certain circumstances ran afoul of Article I, section 10. In Kilminster, as in Neher, the decedent died in the course and scope of employment. Id. at 621. As in Neher, the Kilminster plaintiffs were the parents and personal representatives of the decedent's estate and alleged that the decedent died as the result of negligence, and, thus, that they were entitled to a remedy under the wrongful death statute. The defendant, however, unlike the Neher defendants, were the decedent's employer and the employer's president. Id. As in Neher, the Kilminster defendants asserted that the sole remedy for the decedent's death was through the workers' compensation system. Id. at 622.
In Kilminster, it was not ORS 30.265(3) that stood in the way of the plaintiffs' recovery under the wrongful death statute, but it was ORS 656.018(1), which provides, in pertinent part, that a complying employer's liability for all injuries to employees arising out of and in the course of employment "is exclusive and in place of all other liability arising out of" such injuries. ORS 656.018(2) further notes that the rights under the workers' compensation laws of subject workers and beneficiaries of such workers for on-the-job injuries
"are in lieu of any remedies they might otherwise have for such injuries * * * under * * * other laws, common law or statute, except to the extent the worker is expressly given the right under this chapter to bring suit against the employer of the worker for an injury [.]"
By analogy, the present case resembles Kilminster in the same way it resembles Neher: The wrongful death statute recognizes the existence of a right for a personal representative to recover damages to compensate b
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