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Davis v. United States Employers Council Inc.3/19/1997
ave indicated, the majority bases its thesis that injurious intent cannot be subsumed within economically-motivated conduct, at least in part, on the sentence it quotes from Lusk. However, that is far from the only inventive use that the majority makes of Lusk; indeed, the majority essentially treats our 1989 decision in that case, more than the Supreme Court's 1996 Kilminster decision or any of its others, as the linchpin of ORS 656.156 jurisprudence. The uses that the majority makes of Lusk are of two kinds: first, it says that Lusk is controlling on us in itself unless it has been "repudiate or substantially call into question" by Kilminster or other "intervening changes in the law," 147 Or.App. at 174, 934 P.2d at 1148. Second, the majority appears to regard Kilminster as little more than a clone of Lusk, because of general similarities in their facts and specific similarities in their language which, according to the majority, "can only be regarded as deliberate." 147 Or.App. at 176, 934 P.2d at 1149.
If Lusk says what the majority understands it to say, I do not agree that it remains controlling after Kilminster.
The central premise of the majority's reasoning and its holding is that Lusk and, in turn, Kilminster adopted an "affirmative wish" standard of liability under ORS 656.156(2). As I have discussed, Kilminster does no such thing but, rather, reiterates and adheres to the specific intent standard established in the Supreme Court's earlier cases. If the majority is right in regarding Lusk as holding otherwise, then, without more, Kilminster and Lusk are not consistent.
The same example also illustrates why the majority's reliance on certain common language and usages in the two opinions does not succeed. The fact that the word "wished" can be found in both opinions adds nothing to its clear lack of substantive weight in Kilminster--whatever importance we might or might not have attributed to it in Lusk. More generally, the majority's focus on language here is not an effective analytical tool, because isolated and random words are an empty vessel when they are emphasized at the expense of context and substance. Most of the linguistic usages or similarities that the majority finds in the two cases are anecdotal: It is by no means surprising that two opinions, which interpret the same statute and apply the same Supreme Court precedent, would use some similar language. However, the majority attempts to elevate that coincidence into substance.
The majority recognizes that "Kilminster does not cite Lusk," but regards that fact as fully compatible with its theme that the Supreme Court's later opinion was meant to be little more than a republication of our decision in Lusk. With due respect, it defies belief that a judicial opinion can be understood to deliberately reiterate and, in effect, adopt the substance of another that it does not even cite. The inherent improbability of that understanding becomes more graphic when it is remembered that Kilminster does cite and discuss each of the Supreme Court's previous decisions interpreting ORS 656.156(2), and does repeat their language with attribution.
At least as noteworthy as the fact that the linguistic similarities between the two opinions are random and lack any apparent substantive nexus is the fact that there are linguistic differences between the two that do reflect differences in substance. The majority points out that our prevailing opinion in Lusk forcefully disputed the significance of "certainty of injury" as a factor in the analysis under ORS 656.156(2), and expressly took issue with the specially Concurring opinion's focus on that factor. However, as illustrated in the passages that I
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