Bundy v. Nustar GP, LLC

277 Or.App. 785

373 P.3d 1141

Danny BUNDY, Plaintiff–Appellant,

v.NUSTAR GP, LLC ; and Shore Terminals, LLC, Defendants–Respondents.

110810280

A152918.

Court of Appeals of Oregon.

Argued and Submitted Sept. 16, 2014.

Decided April 27, 2016.

Carl Post, Portland, argued the cause and filed the briefs for appellant.

Thomas W. Sondag argued the cause and filed the brief for respondents. With him on the brief was Lane Powell PC.

Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and TOOKEY, Judge.

HADLOCK, C.J.

Plaintiff appeals the dismissal of a lawsuit that he brought against defendants after he was exposed to fuel vapors during his employment. We reject without discussion plaintiff's assignments of error two through ten, in which he challenges the trial court's dismissal of his original complaint. We write to address plaintiff's challenge to (1) the trial court's dismissal of his third amended complaint, and (2) the trial court's denial of his motion for leave to file a fourth amended complaint. With respect to the first of those rulings, plaintiff argues that the court erred in granting defendants' dismissal motion because he stated a claim for deliberate intention to injure against defendant NuStar GP LLC, under ORS 656.156(2). With respect to the second ruling, plaintiff contends that the court erred in refusing to allow him to file a fourth amended complaint because that proposed pleading stated claims for negligence against NuStar as permitted by ORS 656.019 ; he argues further that the trial court's refusal to allow him to assert those claims against NuStar violated his rights under the remedy clause of Article I, section 10, of the Oregon Constitution, as construed by the Supreme Court in Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001). We conclude that the trial court did not err with respect to either ruling, and, accordingly, we affirm.

I. LEGAL BACKGROUND

To provide context for the procedural history of this case, we begin with a brief overview of the applicable legal concepts. Under the workers' compensation law, “[w]orkers who are injured in the course and scope of employment are entitled to receive certain benefits from their employers, and, with some notable exceptions, those benefits are exclusive of all other remedies that would otherwise be available to the worker.” Hanson v. Versarail Systems, Inc., 175 Or.App. 92, 95, 28 P.3d 626 (2001). The exclusive remedy bar is found in ORS 656.018,¹ and is available to an employer to raise as a defense to a claim brought against it by an employee. See Olsen v. Deschutes County, 204 Or.App. 7, 21, 127 P.3d 655, rev. den., 341 Or. 80, 136 P.3d 1123 (2006) (discussing burden on the employer to plead and prove exclusivity bar when raised as an affirmative defense). Thus, “[t]he workers' compensation statutory scheme operates as a substitute for civil claims that an employee could assert against his or her employer in an action at common law and provides liability ‘coverage’ against the risks that arise from those kinds of claims.” Stone v. Finnerty, 182 Or.App. 452, 458, 50 P.3d 1179, adh'd to as modified, on recons., 184 Or.App. 111, 55 P.3d 531 (2002), rev. den., 335 Or. 422, 69 P.3d 1233 (2003) (emphasis omitted).

Two statutory exceptions to the exclusive remedy bar are at issue in this case. The first of those exceptions is found in ORS 656.156(2), which permits an employee to bring an action against his employer for an injury that is covered by the workers' compensation law if the injury “results to [the] worker from the deliberate intention of the employer of the worker to produce such injury.” ORS 656.156(2).² The second exception is found in ORS 656.019, which the legislature passed after the Supreme Court issued Smothers. That statute permits an employee to bring a negligence action against his employer “for a work-related injury that has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker's injury only after an order determining that the claim is not compensable has become final.” ORS 656.019(1)(a).

II. PROCEDURAL HISTORY OF THIS CASE

With that legal context in place, we turn to the background facts and procedural history of this case. Because this case comes to us from a dismissal of plaintiff's complaint, we assume the truth of all allegations in the pleading and view the allegations, and inferences that may be drawn from the allegations, in the light most favorable to plaintiff, the nonmoving party. L.H. Morris Electric v. Hyundai Semiconductor, 187 Or.App. 32, 35, 66 P.3d 509 (2003).

In his original complaint, plaintiff alleged the following background facts that led to his claimed injury. Plaintiff worked as a terminal operator at a terminal operated by his employer, defendant NuStar, and defendant Shore Terminals, LLC. In April 2008, Jordan Technologies personnel inspected the vapor recovery unit (VRU) in the terminal that was located by the truck rack. Jordan Technologies reported that the vent valve was worn or impaired; however, defendants did not repair or replace the valve. On October 10, 2008, problems arose with the same VRU. Jordan Technologies personnel temporarily fixed the unit that day but planned to return on October 13 to permanently fix it.

Plaintiff arrived for work on the night of October 11—before the planned permanent fix of the VRU—and smelled fumes. Around 11:45 p.m., plaintiff noticed stronger fumes and also observed that the VRU had shut down. Plaintiff took a reading of the area and measured combustible gasses at 100 percent of the lower explosive limit (LEL) and 10,000 parts per million (PPM).

About 12:30 a.m., plaintiff contacted his supervisors—the terminal manager, Hudiburgh, and the operations supervisor and former terminal manager, Dungan—to report the problem. Dungan told plaintiff to stop loading trucks, continue taking measurements, and keep the VRU running.

Hudiburgh arrived at the terminal about an hour later and instructed plaintiff to continue taking measurements until about 10:00 a.m. Hudiburgh also instructed plaintiff to load an ethanol truck in the early morning for about 15 minutes, despite the improperly functioning VRU. Because plaintiff was required to monitor the VRU without proper safety equipment, he “inhaled dangerous and potentially deadly amounts of hydrocarbons.”

As established by evidence submitted by plaintiff in support of his motion for leave to file a fourth amended complaint, but not alleged in his complaint, plaintiff filed a workers' compensation claim, which was accepted in November 2008 for a non-disabling “exposure to gasoline vapors on 10/12/08.” Plaintiff conceded to the trial court that he had received benefits for the accepted condition, but the record does not contain any evidence of what those benefits were. Between February 2009 and September 2010, plaintiff requested that the claim acceptance include the new or omitted conditions of irritant bronchitis and post traumatic stress disorder (PTSD), and to include as consequential conditions somatization disorder and undifferentiated somatoform disorder. NuStar denied each of those four requests. In September 2011, an administrative law judge (ALJ) affirmed the denials, concluding that plaintiff had not established the compensability of irritant bronchitis, under ORS 656.266(1), because his condition was actually tracheitis, had not established that he had PTSD, and had not established that the work incident was a major contributing cause of his somatization disorder and undifferentiated somatoform disorder, under ORS 656.802(2) and (3). The Workers' Compensation Board adopted and affirmed the ALJ's order in March 2012.

Plaintiff also had filed a claim against NuStar and Shore Terminals in federal district court for “intentional harm,” based on the workplace incident. The federal court dismissed that case for lack of diversity jurisdiction in February 2011. Plaintiff then filed his original complaint in this action alleging negligence and negligence per se claims against both NuStar and Shore Terminals and reasserting his “intentional harm” claim against NuStar. The trial court granted defendants' motion to dismiss plaintiff's negligence and negligence per se claims with prejudice, concluding that they were barred by the statute of limitations and the workers' compensation exclusive remedy bar, ORS 656.018. The trial court also granted NuStar's motion to dismiss, with leave to replead, plaintiff's intentional harm claim for failure to state a claim, ORCP 21 A(8). The court concluded that plaintiff had failed to allege specific facts of the employer's deliberate intention to injure, as required by ORS 656.156(2). Plaintiff filed a second amended complaint, adding allegations for his deliberate-intention-to-injure claim against NuStar. However, the trial court again dismissed that claim for failure to state a claim, with leave to replead, because plaintiff had failed to state ultimate facts that met the requirements for the claim, as discussed in Hanson, which would include facts that the actor “was wielding the whole executive power of the corporation.”

In his third amended complaint, plaintiff added many new allegations. As relevant, those additional allegations fall into two categories—(1) assertions relating to Dungan's and Hudiburgh's authorization to act on behalf of NuStar and (2) assertions relating to Dungan's, Hudiburgh's, and NuStar's knowledge that requiring employees, including plaintiff, to work without access to required safety equipment of respirators and self-contained breathing apparatuses was certain to cause injury.

As to the first category of allegations—Dungan's and Hudiburgh's authorization to act on NuStar's behalf—plaintiff alleged that (1) Dungan's and Hudiburgh's alleged conduct “was on behalf and for the benefit of” NuStar; (2) “[b]ased on information and belief,” NuStar...