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Anderson v. Evergreen International Airlines Inc.12/14/1994
COURT OF APPEALS OF OREGON
9211-08016, CA A82288
1994.OR.40630 ; 886 P.2d 1068; 131 Or.App. 726
Filed: December 14, 1994.
ANDY ANDERSON, APPELLANT,
v.
EVERGREEN INTERNATIONAL AIRLINES, INC., RESPONDENT
Kevin Keaney, Portland, argued the cause, for appellant. On the briefs were Charles J. Merten and Merten & Associates
Lori Irish Bauman, Portland, argued the cause, for respondent. With her on the brief were Daniel H. Skerritt and Ater Wynne Hewitt Dodson & Skerritt
Before Deits, P.J., and Riggs and Haselton, JJ
HASELTON, Judge.
Plaintiff appeals from the trial court's judgment dismissing his wrongful discharge action. We reverse.
Plaintiff's complaint alleges the following material facts. Defendant is an Oregon corporation, which does business, including performing air transport services, throughout the world. Defendant's operations are subject to regulation by the United States Federal Aviation Administration (FAA). In 1989 and 1990, plaintiff worked as an aircraft maintenance engineer for defendant in Sidney, Australia. Throughout his employment, plaintiff's supervisors "regularly and knowingly" ordered him to install defective parts in defendant's 747 aircraft, which were used to transport cargo, rendering those aircraft unairworthy.
In early December 1990, plaintiff, acting in compliance with FAA regulations, replaced a defective part in one of defendant's 747s with a non-defective part. Immediately thereafter, "and from Oregon," defendant:
" nowingly gave plaintiff a direct order to take the replacement part out of the 747, put the defective part back in the 747, and send the 747 back into flight without logging the removal of the replacement part. Defendant had actual knowledge at [that] time that the part was defective and that had plaintiff obeyed, plaintiff and defendant would have been in violation of FAA regulations. Further, defendant from Oregon concurrently ordered plaintiff to no longer, in the future, replace defective parts and to, in further violation of FAA regulations, falsely certify that he had inspected and made all repairs and replacement of such parts necessary to make the aircraft airworthy."
When plaintiff refused to comply with those orders, and particularly refused to acquiesce in violations of FAA regulations, "defendant, while in Oregon," fired him.
Plaintiff sued defendant for wrongful discharge and breach of contract. Defendant moved under ORCP 21 to dismiss plaintiff's wrongful discharge claim on two alternative theories: (1) The Federal Aviation Act preempts plaintiff's common law wrongful discharge claim; and (2) even if plaintiff's claim is not preempted by federal law, it is legally insufficient under Oregon law. The trial court, without specifying its grounds in its order, granted defendant's motion, and plaintiff subsequently voluntarily dismissed his breach of contract claim without prejudice. This appeal ensued.
We do not know the basis for the trial court's dismissal. However, because both grounds that defendant argued below are properly before us as alternative bases for affirmance, we must consider whether either supports dismissal. Because defendant's preemption argument implicates our jurisdiction, we address it first. See Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or. 533, 537, 577 P.2d 477 (1978).
In Cipollone v. Liggett Group, Inc., 505
Page 1 2 3 4 5 Oregon Personal Injury Attorneys
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