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Davis v. United States Employers Council Inc.3/19/1997
lminster did use the two words synonymously. As noted, the court's repeated references to "specific intent to injure" and its repeated quotations of the "specific intent" test from its earlier cases would, without more, make it highly improbable that the court's single use of the word "wished" was meant to establish a different legal test. That Conclusion is
further supported by the fact that the quotations of the specific intent standard from the earlier cases are preceded in Kilminster by the court's reiteration of the principle that a "prior interpretation of a statute by [the Supreme] ourt becomes part of the statute itself." Id. at 629, 919 P.2d 474. That is not a point that the court likely would have emphasized had its opinion been meant to change the basic test of actionability under ORS 656.156(2) that the earlier cases established.
The majority suggests in a different connection that this Dissent "pummels a straw man." I note parenthetically that it is not always easy to tell the difference between a straw man and a dead horse. At the expense of beating one or the other, however, I think that there is a problem with the majority's analysis over and above the specifics of how it reads the language in Kilminster: The majority would ascribe a fundamental change in the law to the single appearance of a new word in a Supreme Court opinion that repeatedly reiterates the critical phrasing which was developed in the court's earlier cases and with which the new word can be read completely synonymously. The law is simply not as ephemeral as the majority would have it be.
Although my principal disagreement with the majority concerns our different understandings of the test of liability in Kilminster, a number of premises that underlie the majority's view require some Discussion. First, the majority maintains that the requisite deliberate intention to injure cannot be present in situations where the employer's actions will necessarily result in a worker's injury , but where the employer acts "from a desire to save money and not from an affirmative desire to injure plaintiff or his co-workers." 147 Or.App. at 170, 934 P.2d at 1146. The majority relies for that proposition on our statement in Lusk v. Monaco Motor Homes, Inc., 97 Or.App. 182, 189, 775 P.2d 891 (1989), that " uch a reason, while perhaps not laudable, is not a specific intent to produce an injury."
If the majority correctly reads that statement in Lusk to mean that an employer's conduct that is motivated by cost savings or other financial motives cannot also and simultaneously entail a specific intent to injure, then in my view, Lusk is wrong and is inconsistent with Kilminster. A specific intent to injure can be inferred, even where the employer has no "affirmative desire" to injure but is instead motivated by a desire to produce profits or to achieve some other objective, if an intervening injury is a certain byproduct of the other objective's achievement. While I intend no analogy between the actors or the acts, I note that the majority's proposition would make proof of intent difficult or impossible in cases of murder for hire. It is a truism that an actor can deliberately intend more than one consequence through a single course of conduct. To say that one result is the primary objective does not mean that the other is unintended, at least as a matter of law. The majority arrives at its contrary understanding by confusing motive and intent. However, there is no such confusion in ORS 656.156(2). Nothing in the statute supports the view that the existence or inferability of a deliberate intention to injure depends on the reasons--financial or other-- why the intention was formed.
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