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Davis v. United States Employers Council Inc.3/19/1997
inuing tort."
Thereafter, defendant moved for summary judgment, arguing that plaintiff's claim was time barred under the general two-year statute of limitations for personal injury actions. ORS 12.110(1). The trial court allowed partial summary judgment, holding that plaintiff could not recover for defendant's conduct before April 12, 1991 (more than two years before the filing of the action) but that the statute of limitations did not bar claimant's claims to the extent they were based on the employer's conduct after April 12, 1991.
The parties proceeded to trial on that aspect of plaintiff's claims pertaining to conduct after April 12, 1991. Employing the procedure described in Sadler, plaintiff submitted a written opening statement, detailing his proof of defendant's alleged "deliberate intention" to produce the injury , which would avoid workers' compensation exclusivity. See ORS 656.156(2). Defendant moved for an involuntary nonsuit, asserting that plaintiff's proof was legally insufficient to establish the requisite "deliberate intention." The trial court agreed and entered judgment for defendant.
On appeal, plaintiff raises two assignments of error. First, the trial court erred in concluding that plaintiff's proof was legally insufficient to establish "deliberate intention * * * to produce such injury ," within the meaning of ORS 656.156(2). Second, the trial court erred in applying the two-year statute of limitations, ORS 12.110(1), to bar plaintiff from recovering for employer's conduct before April 12, 1991. The first assignment of error is, potentially, completely dispositive. That is, if we agree with the trial court that plaintiff cannot demonstrate "deliberate intention," his claims against the defendant employer are barred by workers' compensation exclusivity, regardless of the statute of limitations.
We conclude, as amplified below, that plaintiff's proof of "deliberate intention" was legally insufficient. See Kilminster v. Day Management Corp., 323 Or. 618, 919 P.2d 474 (1996); Lusk v. Monaco Motor Homes, Inc., 97 Or.App. 182, 775 P.2d 891 (1989). Thus, ORS 656.018 bars plaintiff's claims against his employer.
ORS 656.018 provides, in part:
"(1)(a) The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the
course of employment that are sustained by subject workers, the workers' beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such conditions or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such conditions, except as specifically provided otherwise in this chapter."
ORS 656.156(2) embodies an exception to that exclusivity provision:
"If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may take under this chapter, and also have cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes." (Emphasis supplied.)
Plaintiff argues that, because defendant knew that plaintiff and other employees were being harmed, and would continue to be harmed, by its refusal to implement adequate safety measures, that profit-driven refusal evinced "deliberate intention":
" t makes no difference that defendant's primary motive wa
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