Rivera v. Perlo Construction, LLC ( 2024 )

No. 832 November 20, 2024 307
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Rafael Castillo RIVERA,
an individual,
Plaintiff-Appellant,
v.
PERLO CONSTRUCTION, LLC,
a domestic limited liability company et al.,
and State Accident Insurance Fund Corporation,
a state agency; Donna C. Wicher, PHD PC;
Dr. Donna C. Wicher, an individual; and Integrity Medical
Evaluations, Inc., a domestic corporation,
Defendants-Respondents.
Multnomah County Circuit Court
21CV45221; A179793
Benjamin N. Souede, Judge.
Argued and submitted May 15, 2024.
Quinn E. Kuranz argued the cause for appellant. Also on
the briefs was The Office of Q.E. Kuranz, AAL, LLC.
Rebecca A. Watkins argued the cause for respondent
SAIF. Also on the brief was Randi J. Ensley.
Amanda Bryan argued the cause for respondents Donna
C. Wicher, Ph.D., P.C. and Dr. Donna C. Wicher. Also on the
brief were Jacqueline Tokiko Mitchson, John M. Kreutzer,
Amanda Bryan, and Bullivant Houser Bailey, PC.
Kim E. Hoyt argued the cause for respondent Integrity
Medical Evaluations, Inc. Also on the brief was Ashley L.
Brown.
Before Aoyagi, Presiding Judge, Egan, Judge, and Kistler,
Senior Judge.*
______________
* Egan, J., vice Jacquot, J.
308 Rivera v. Perlo Construction, LLC
KISTLER, S. J.
Limited judgments reversed and remanded.
Cite as 336 Or App 307 (2024) 309
KISTLER, S. J.
Plaintiff appeals limited judgments dismissing
three defendants in this employment discrimination case.
The trial court ruled that plaintiff’s claims against those
defendants came within the exclusive jurisdiction of the
workers’ compensation system. We reverse the limited judg-
ments and remand for further proceedings.
Because this appeal arises from defendants’ motions
to dismiss, we take the facts from plaintiff’s second amended
complaint (the complaint).1 Plaintiff is originally from Chile,
and his primary language is Spanish. In Oregon, he worked
as a laborer for Perlo, a construction company. On Perlo’s
jobsite, the other employees repeatedly harassed plaintiff,
improperly touched him, and attempted to intimidate him
because of his nationality and limited English skills. When
plaintiff reported those incidents to his supervisors and
Perlo’s risk management director Wood, they dismissed his
complaints. They concluded, without an adequate investi-
gation, that either the conduct had not occurred or that the
sort of harassment plaintiff reported was par for the course
on construction sites.
“As a result of the workplace harassment, mistreat-
ment, assault, and discrimination [that plaintiff suffered
at Perlo], [p]laintiff began experiencing emotional distress
symptoms from his dormant PTSD.”2 Those symptoms led to
plaintiff’s filing a workers’ compensation claim “indicating
that he was suffering from PTSD” caused by the working
conditions at Perlo. After SAIF denied plaintiff’s workers’
compensation claim, he brought this employment discrim-
ination action against Perlo, Wood, and three other defen-
dants involved in processing his workers’ compensation
claim: SAIF, which provided workers’ compensation insur-
ance to Perlo; Integrity Medical Evaluations, Inc., which
arranges medical examinations of claimants; and Wicher,
a doctor who examined plaintiff. Given the issues raised on
1
In describing the facts, we set out the historical facts alleged in the com-
plaint and assume they are true. In considering the parties’ arguments, we draw
all reasonable inferences from the allegations of historical fact in plaintiff’s favor.
2
Plaintiff alleged that he had experienced PTSD 10 years earlier as a result
of human trafficking.
310 Rivera v. Perlo Construction, LLC
appeal, we focus on how, according to the complaint, defen-
dants SAIF, Integrity, and Wicher processed plaintiff’s
workers’ compensation claim.
After SAIF received plaintiff’s workers’ compensa-
tion claim, it directed one of its investigators to look into the
claim. During her investigation, the investigator left a voice
message on a potential witness’s phone saying that she had
uncovered “evidence that Perlo employees [had] harassed
[p]laintiff.” That message found its way to Perlo and Wood,
who allegedly “had a great deal of influence at SAIF.” Wood
complained to SAIF, which initially replaced the investi-
gator and later fired her “because of her investigation into
[p]laintiff’s claims.”3
On July 23, 2020, SAIF denied plaintiff’s workers’
compensation claim. Four days later, Wicher issued a letter
opinion based on her review of plaintiff’s file. She concluded
that the working conditions at Perlo were not the major con-
tributing cause of his PTSD. According to the complaint,
the file that Wicher reviewed was incomplete, and the rea-
soning in her letter opinion deficient. The complaint alleged
that Wicher’s opinion reflected a larger practice in which
workers’ compensation insurers “hire certain doctors to per-
form a biased evaluation of a claimant and write a report,
denying or challenging the claimant’s purported workplace
injury.”
On August 12, 2020, Wicher examined plaintiff in
person. She administered a standard psychological test and
conducted an in-person interview. Later that day, Wicher
issued a 15-page draft report and a nine-page final report.
In her reports, Wicher concluded that plaintiff’s work at
Perlo was not the cause of his PTSD. Her report also noted
that plaintiff was “making threats toward Perlo and SAIF
employees” but added that plaintiff “ ‘did not appear to be
actively at risk of harm to himself or others at the time of
the examination.’ ” Wicher transmitted the draft report to
3
The complaint alleges that the investigator sued SAIF for retaliating
against her and for employment discrimination. Our court recently resolved the
investigator’s claims. See Cuddington-Placido v. SAIF, 335 Or App 663, ___ P3d
___ (2024). That decision plays no role in our resolution of this appeal, as the
remainder of our opinion makes clear.
Cite as 336 Or App 307 (2024) 311
Integrity, which forwarded it to SAIF.4 According to the
complaint, Wicher’s “report was a sham and failed to prop-
erly evaluate Plaintiff’s condition and the causes of [his]
condition.”
On August 19, 2020, plaintiff’s counsel notified
SAIF that plaintiff was asserting “claims against SAIF for
aiding, abetting, inciting, compelling, or coercing unlaw-
ful employment discrimination, including SAIF’s actions
in interfering with the investigation into [plaintiff’s] work-
place discrimination and harassment claims.” The same
day, plaintiff’s counsel notified Perlo and Wood that plaintiff
was asserting employment related claims against them and
others who “may be implicated in the tortious, unlawful or
discriminatory conduct and treatment of [plaintiff] in con-
nection with his work at Perlo.”
Five days later, “SAIF contacted Wood to inform
Wood and Perlo that Integrity was contacting the Oregon
State Police because of allegations Dr. Wicher made in the
August 12, 2020, IME report.” Two days after SAIF con-
tacted Wood, SAIF sent a “heavily redacted” copy of Wicher’s
draft report to Perlo’s attorney. The redacted copy of Wicher’s
report that SAIF sent Perlo included the threats that plain-
tiff had made against Perlo’s employees but omitted Wicher’s
observation that plaintiff “did not appear to be actively at risk
of harm to himself or others at the time of the [August 12]
examination.”5 Approximately two weeks later, Perlo’s attor-
ney sent plaintiff a termination letter for making “statements
that threaten[ed] physical violence towards Perlo personnel.”
As noted, plaintiff brought this action against Perlo,
Wood, SAIF, Integrity, and Wicher. The complaint alleged,
among other things, that Perlo had subjected plaintiff to
4
The complaint refers primarily to Wicher’s draft report. Although her final
report is six pages shorter than her draft report, the complaint does not allege
how the two reports differ or if any difference is material.
5
One paragraph in the complaint differs in some respects from the allega-
tions noted above. It appears to allege (it could be clearer) that “Integrity/Dr.
Wicher” reported plaintiff’s threats against Perlo’s employees to the Oregon
State Police. That paragraph alleges that, in addition to reporting plaintiff’s
threats to the state police, Integrity/Wicher told the police about “Wicher’s obser-
vation that Plaintiff ‘did not appear to be actively at risk of harm to himself or
others’ ”—a detail that SAIF allegedly omitted from the redacted report it for-
warded to Perlo’s attorney.
312 Rivera v. Perlo Construction, LLC
discrimination because of his race and national origin.
Plaintiff claimed that Perlo had retaliated against him for
reporting his coworkers’ discriminatory conduct and for
filing a workers’ compensation claim. He also alleged that
Perlo had unlawfully denied him certain statutory rights,
such as disability protections and rights arising under the
Oregon Family Leave Act. Finally, plaintiff alleged that
SAIF, Integrity, and Wicher had aided and abetted Perlo’s
employment law violations, without alleging which viola-
tions defendants had aided and abetted or the theories on
which plaintiff’s aiding and abetting claims rested.6
SAIF, Integrity, and Wicher moved to dismiss plain-
tiff’s claims against them. Essentially, each defendant’s
motion started from the proposition that plaintiff’s claims
against them arose solely from their actions in processing
his workers’ compensation claim. It followed, they argued,
that the workers’ compensation system either provided the
exclusive remedy for those actions or had exclusive juris-
diction over plaintiff’s claims against them. Alternatively,
defendants argued that their actions processing plaintiff’s
claims did not aid and abet Perlo’s discriminatory conduct
or at least that plaintiff had not pleaded ultimate facts
showing that they did. Finally, SAIF attached a copy of a
disputed claim settlement (DCS) to its motion and argued
that the DCS barred plaintiff’s claims against it.
Plaintiff responded that the exclusive remedy pro-
visions of ORS 656.018 were limited to workplace injuries
covered by the workers’ compensation statutes and did not
limit claims for aiding and abetting employment discrim-
ination. Most of plaintiff’s response to defendants’ plead-
ing arguments focused on the proposition that defendants
could be liable for aiding and abetting Perlo’s employment
discrimination, without specifying the theory or theories on
which his aiding and abetting claims were based. Finally,
after noting briefly that the DCS was not properly before
6
Plaintiff’s complaint also alleged that SAIF, Integrity, and Wicher had vio-
lated various employment discrimination statutes that apply only to plaintiff’s
employer. Plaintiff later explained that he was not claiming that SAIF, Integrity,
and Wicher were his employer or that they had independently violated those stat-
utes. Rather, he was claiming only that defendants had aided and abetted Perlo’s
employment discrimination.
Cite as 336 Or App 307 (2024) 313
the court on SAIF’s motion to dismiss, plaintiff argued at
greater length that the DCS resolved only his workers’ com-
pensation claims.
After considering the parties’ arguments, the trial
court ruled that it lacked jurisdiction to decide plaintiff’s
aiding and abetting claims. Focusing initially on plaintiff’s
claims against SAIF, the court observed that “[a]ll of the * * *
allegations against Defendant SAIF revolve around SAIF’s
investigation and processing of Plaintiff’s worker’s compen-
sation claim.” The court reasoned that plaintiff’s allegations
against SAIF constituted “matters concerning a claim” over
which the workers’ compensation system has exclusive juris-
diction. See SAIF v. Harris, 66 Or App 165, 672 P2d 1384(1983) (inferring from the structure of the workers’ com-
pensation statutes that the workers’ compensation system
has exclusive jurisdiction over matters concerning a claim).
Citing Gordineer v. Bellotti, 100 Or App 102, 105-06, 785
P2d 362 (1990), the court concluded that it lacked jurisdic-
tion to decide plaintiff’s aiding and abetting claims against
SAIF. The court added, without further explanation, that
plaintiff’s claims against Integrity and Wicher failed for the
same reason.
Having concluded that it lacked jurisdiction, the
court did not decide whether, as defendants argued alter-
natively, plaintiff’s complaint failed to state claims for aid-
ing and abetting Perlo’s tortious conduct. Rather, the court
observed that any further amendment of the complaint
appeared futile and dismissed plaintiff’s claims against
SAIF, Integrity, and Wicher with prejudice.
On appeal, the parties focus on three issues. First,
even if the workers’ compensation system has exclusive
jurisdiction over matters concerning a claim, does that bar
plaintiff from pursuing a separate action against defen-
dants for aiding and abetting Perlo’s employment discrim-
ination? Second, if plaintiff can pursue his aiding and abet-
ting claims, does his complaint state claims against each
defendant for aiding and abetting Perlo’s tortious actions?
Finally, does the DCS bar plaintiff’s aiding and abetting
claims against SAIF, Integrity, or Wicher?
314 Rivera v. Perlo Construction, LLC
We begin with the last issue. If the DCS resolves
plaintiff’s aiding and abetting claims against defendants,
then it would eliminate the need to consider the first two
issues that plaintiff raises on appeal. In considering that
issue, we begin with a procedural question. Plaintiff’s com-
plaint does not refer to the DCS or set out its terms. Rather,
SAIF’s argument is based on documents that it attached to
its motion to dismiss. Procedurally, the initial question is
whether those documents were properly before the court on
a motion to dismiss.
A motion to dismiss for failure to state a claim for
relief is limited to the allegations in the complaint. Deep
Photonics Corp. v. LaChapelle, 282 Or App 533, 548, 385 P3d
1126 (2016), rev den, 361 Or 524 (2017). ORCP 21 A(2)(b),
however, permits specific motions to dismiss based on facts
that do not appear on the face of the pleadings. The Supreme
Court and we have sometimes considered motions to dismiss
that are not specifically listed in ORCP 21 A(2)(b), even when
those motions are based on facts outside the complaint. See
Black v. Arizala, 337 Or 250, 261-66, 95 P3d 1109 (2004)
(forum selection clause); Curzi v. Oregon State Lottery, 286
Or App 254, 257, 398 P3d 977, rev den, 362 Or 175 (2017) (tort
claim notice).7 Alternatively, we have reasoned that a motion
to dismiss based on facts outside the pleadings can be viewed
as the functional equivalent of a summary judgment motion.
Black v. Arizala, 182 Or App 16, 22-23, 48 P3d 843 (2002),
aff’d on other grounds, 337 Or at 272 (2004).
In this case, plaintiff has focused, both before the
trial court and on appeal, on the merits of SAIF’s argument
that the DCS bars his aiding and abetting claims. So do we.
That is, we assume that, to the extent SAIF’s motion to dis-
miss is based on the DCS, it is the functional equivalent of a
summary judgment motion. We accordingly begin with the
text of the DCS, which provides that, in return for SAIF’s
promise to pay an agreed sum,
“claimant hereby accepts the payment of this sum in full
settlement of all issues raised [sic] arising out of the denied
7
In Black and Curzi, the Supreme Court and we appear to have viewed
motions to dismiss based, respectively, on a forum selection clause and a tort
claim notice defense as sufficiently close to a motion to dismiss for lack of juris-
diction to come within ORCP 21 A(2)(b).
Cite as 336 Or App 307 (2024) 315
treatment, condition(s), disability, injury, or occupational
disease including interest accrued or benefits pending
appeal.”
On appeal, SAIF argues that claim preclusion bars
plaintiff from relitigating whether SAIF’s actions in pro-
cessing his workers’ compensation claim aided and abetted
Perlo’s employment discrimination. SAIF’s claim preclusion
argument is at odds with our decision in Fleming v. SAIF, 302
Or App 543, 461 P3d 261 (2020). In that case, we reaffirmed
that “a DCS does not give rise to claim preclusion or issue
preclusion.” Id. at 549.8 Rather, as we explained in Gilkey v.
SAIF, 113 Or App 314, 832 P2d 1252, rev den, 314 Or 573(1992), a DCS only binds the parties to that agreement to
the issues that the DCS resolved. See id. at 317 (holding that
the DCS in that case established that, as between the par-
ties to the agreement, an earlier injury “cannot be regarded
as having contributed to [the] claimant’s present condition”).
Following Gilkey, we held in Fleming that a DCS does not
give rise to nonmutual issue preclusion. 302 Or App at 549.
It follows from Gilkey and Fleming that the DCS in
this case has no preclusive effect on plaintiff’s aiding and
abetting claims against Integrity and Wicher. They were
not parties to the agreement. Arguably, the DCS could have
resolved plaintiff’s aiding and abetting claims against SAIF
to the extent that the parties intended to do so.9 However,
we have examined the three documents that SAIF attached
to its motion to dismiss, and we cannot say that those doc-
uments reflect an unambiguous intent to resolve plaintiff’s
aiding and abetting claims against SAIF. In short, we can-
not say, on this record, that the DCS provides an alternative
basis for affirming the trial court’s ruling granting defen-
dants’ motions to dismiss.10
8
The court reasoned that the board’s approval of a DCS based on a fairness
review does not convert the board’s approval into an agency order that can have
preclusive effect. See Fleming, 302 Or App at 549 (disagreeing with the dissent-
ing opinion’s view on that point).
9
We say “arguably” because plaintiff contends that the DCS did not and
could not have resolved anything other than workers’ compensation claims. It is
sufficient in this case to hold only that the DCS did not unambiguously resolve
plaintiff’s aiding and abetting claims.
10
We note separately that a critical passage in the DCS appears to be missing
a word. The DCS states that plaintiff accepts SAIF’s promise to pay a specified
316 Rivera v. Perlo Construction, LLC
We accordingly turn to the primary issue on which
the trial court based its ruling—that the workers’ compensa-
tion system has exclusive jurisdiction over matters concern-
ing a claim. We note, as an initial matter, that the question
whether the workers’ compensation system provides the exclu-
sive remedy for a claim is separate from the question whether
it has exclusive jurisdiction over matters concerning a claim.
See Kahn v. Providence Health Plan, 335 Or 460, 465, 71 P3d
63 (2003) (distinguishing comparable substantive and pro-
cedural limitations in ORS 656.260). More importantly, the
Supreme Court explained in Kahn that we had incorrectly
dismissed a medical malpractice claim based on the workers’
compensation system’s exclusive jurisdiction over the medi-
cal decision that gave rise to that claim, although the court
went on to uphold our decision based on a related but separate
substantive statutory limitation on liability. Id. at 465-66.
Following Kahn, we discuss those two doctrines separately.
In this case, SAIF relies on a substantive limita-
tion on liability found in ORS 656.018. Subsection (1)(a) of
that statute provides that the liability of every employer
that complies with ORS 656.017 “is exclusive and in place
of all other liability arising out of injuries, diseases, symp-
tom complexes or similar conditions arising out of and in the
course of employment that are sustained by subject work-
ers.” ORS 656.018(1)(a). Subsection (3) extends that substan-
tive exemption from liability to the employer’s workers’ com-
pensation insurer. ORS 656.018(3). Although Integrity and
Wicher assert on appeal that ORS 656.018 applies to them,
they never explain why that is so.11 And, in the trial court,
they relied on the related but separate proposition that the
workers’ compensation system has exclusive jurisdiction
over matters concerning a claim.12
sum “in full settlement of all issues raised arising out of the denied treatment,
condition(s), disability, injury, or occupational disease.” As a grammatical matter,
one would have expected the word “and” or “or” between “raised” and “arising
out of.” The parties have not addressed that point in their arguments on appeal.
11
ORS 656.018(3) extends the exemption from liability set out in ORS
656.018(1) to the employer’s insurer and the insurer’s “contracted agent.” The
Supreme Court has interpreted the term “contracted agent” narrowly, Nicholson
v. Blachly, 305 Or 578, 753 P2d 955 (1988), and Wicher and Integrity do not argue
that either of them is SAIF’s contracted agent.
12
Wicher did rely on a statute, implemented by rule, that grants substan-
tive immunity to medical service providers who transmit medical reports to the
Cite as 336 Or App 307 (2024) 317
In considering whether ORS chapter 656 provides
either the exclusive remedy for plaintiff’s aiding and abet-
ting claims or gives the workers’ compensation system the
exclusive jurisdiction over those claims, we begin with our
cases. We then turn to the gloss that the Supreme Court’s
decision in Kahn put on our cases.
The parties rely primarily on two cases: Palmer v.
Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988), and
Gordineer. Palmer was an exclusive remedy case. In Palmer,
the plaintiff’s supervisor sexually harassed the plaintiff at
work, which led to her filing two claims: a workers’ compen-
sation claim for stress and a gender discrimination claim in
circuit court. Id. at 472. In circuit court, the employer argued
that the plaintiff’s employment discrimination claim should
be dismissed because ORS 656.018 provided the “exclusive
remedy” for her workplace injuries. Id. at 473. We disagreed.
We explained that the supervisor’s sexual harass-
ment violated two separate statutory rights and resulted in
two distinct injuries to (1) the right provided in ORS chapter
656 to be compensated for certain workplace injuries and
(2) the right provided in ORS chapter 659 to be free from
gender discrimination in the workplace. Id. at 473-75. We
concluded that the legislature did not intend to preclude a
worker who had sustained a compensable workplace injury
from recovering for a violation of the separate, distinct stat-
utory right to be free from gender discrimination. Id. at 475.
That was true even though the same set of acts gave rise to
both the employee’s workers’ compensation and employment
discrimination claims. See Merten v. PGE, 234 Or App 407,
414-16, 228 P3d 623, rev den, 348 Or 669 (2010).13
worker’s employer. Wicher and plaintiff have engaged in a protracted debate
about whether Wicher is a medical service provider. That debate seems beside
the point. Plaintiff has not alleged that either Wicher or Integrity transmitted a
medical report to his employer. Rather, he alleged that SAIF did.
13
On appeal, defendants argue that plaintiff did not preserve his claim that
the same set of acts can give rise to workers’ compensation and employment dis-
crimination claims. However, in responding to the motions to dismiss, plaintiff
argued that ORS 656.018 provides the exclusive remedy for bodily injuries that
arise out of and in the course of work, but not for workplace injuries to other
protected rights. He also told the trial court during the hearing on defendants’
motions that the same act can result in a workers’ compensation claim and an
employment discrimination claim. Although plaintiff did not cite Palmer in the
318 Rivera v. Perlo Construction, LLC
Gordineer relied on a related but separate doc-
trine—that the workers’ compensation system has “exclu-
sive jurisdiction” over “matters concerning a claim.” See
100 Or App at 105-06. In Gordineer, the employee brought
a declaratory judgment action in circuit court to establish
that his employer had committed fraud when she testified at
his workers’ compensation hearing; specifically, he sought to
establish that the Workers’ Compensation Board (the board)
had erroneously relied on his employer’s fraudulent testi-
mony when it reduced his temporary total disability award.
Id. at 104. We explained that the employee sought to use the
declaratory judgment action “to overturn a [final] workers’
compensation decision, and the trial court was correct in
holding that the remedies in the workers’ compensation law
are exclusive.” Id. at 106.
As we read Palmer and Gordineer, they are consis-
tent.14 Palmer holds that the exclusive remedy provided in
ORS 656.018 for “injuries, diseases, symptom complexes
or similar conditions arising out of and in the course of
employment” does not preclude an employee from bringing
an employment discrimination claim against her employer
based on an injury to a separate, distinct legal right, even
when the two claims arise from the same set of facts. And,
if the exclusive remedy provision in ORS 656.018(1) does not
preclude an employee from bringing an employment dis-
crimination claim in circuit court, it follows that the board’s
exclusive jurisdiction over matters concerning a claim does
not preclude the circuit court from hearing the employment
discrimination claim.
Gordineer stands for a more limited proposition.
It holds that the workers’ compensation system’s exclusive
jurisdiction over matters concerning a claim prevents an
employee from bringing a declaratory judgment action in cir-
cuit court to collaterally challenge the board’s final decision
adjudicating a workers’ compensation claim. In the same
vein, our other exclusive jurisdiction cases have held that
attempts to obtain or retain workers’ compensation benefits
trial court, his arguments were sufficient to preserve the issue. State v. Walker,
350 Or 540, 551, 258 P3d 1228 (2011).
14
There may be some tension between the reasoning in Gordineer and
Merten. However, Palmer, which is directly on point, is consistent with Gordineer.
Cite as 336 Or App 307 (2024) 319
must be pursued within the workers’ compensation system.
See, e.g., Speciality Risk Services v. Royal Indemnity Co., 213
Or App 620, 627, 164 P3d 300 (2007) (discussing exclusive
jurisdiction cases); Hayden v. Workers’ Compensation Dept.,
77 Or App 328, 331, 713 P2d 612 (1986) (exclusive juris-
diction over offsets to permanent total disability awards);
Harris, 66 Or App at 168-69 (exclusive jurisdiction to decide
whether SAIF could recoup a permanent partial disability
award paid to the worker).
The Supreme Court’s decision in Kahn confirms
that defendants’ reliance on our exclusive jurisdiction cases
is misplaced. In Kahn, a workers’ compensation insurer
entered into an agreement with a managed care organiza-
tion (MCO) pursuant to ORS 656.260 to permit the MCO
to decide the appropriate medical treatment for accepted
workers’ compensation claims. See 335 Or at 462. The
MCO initially denied the plaintiff’s request for surgery to
treat her accepted back condition but approved her request
several months later. Id. at 463-64. After the surgery, the
plaintiff filed a medical malpractice claim against the MCO
to recover for the pain and suffering that she experienced
during the period in which the MCO had denied surgery. Id.
at 464.
The trial court dismissed the plaintiff’s medi-
cal malpractice claim, and we affirmed. We relied on ORS
656.260(6) (2003), amended by Or Laws 2005, ch 26, § 8;
renumbered as ORS 656.260(7) (2007), which provided that
the MCO’s decision regarding the appropriate medical treat-
ment was “ ‘subject solely to review by the director’ ” of the
Department of Consumer and Business Services. Kahn v.
Providence Health Plan, 170 Or App 602, 605, 13 P3d 556
(2000) (quoting that statute; emphasis added). We explained
that the statute gave the director sole authority to review
the MCO’s decision and, in doing so, divested the circuit
court of authority to consider the plaintiff’s medical mal-
practice claim challenging the same decision. Id.On review, the Supreme Court ruled that we had
“incorrectly treated the provisions of ORS 656.260(6) [(2003)]
as dispositive.” Kahn, 335 Or at 465. The court explained
that that statute was “procedural” and described the route
320 Rivera v. Perlo Construction, LLC
a claimant had to follow to obtain administrative review of
the MCO’s decision. Id. The court reasoned that the statute
was “not substantive; it [did] not forbid actions such as the
one that [the] plaintiff [had] brought here.” Id. The court
went on, however, to identify another statute that specifi-
cally prohibited “an action for civil damages” based on the
MCO’s decision. Id. Given that substantive limitation, the
court agreed that we had reached the right result, albeit for
the wrong reason. Id.If the director’s “sole” authority to review a MCO’s
treatment decision in Kahn did not preclude the employee
in that case from bringing a medical malpractice action
against the MCO to challenge that decision, it is difficult to
see why our exclusive jurisdiction cases divested the circuit
court of jurisdiction to decide plaintiff’s employment dis-
crimination claims in this case. Our exclusive jurisdiction
cases are “procedural” in the same way that the statute on
which we relied in Kahn was.
That said, we do not view the Supreme Court’s deci-
sion in Kahn as calling into question the specific holdings in
our exclusive jurisdiction cases. The Supreme Court’s deci-
sion in Kahn, however, does confirm our conclusion that our
exclusive jurisdiction cases do not sweep as broadly as defen-
dants and the trial court understood. And, as explained
above, our decision in Palmer establishes that the substan-
tive limitation on liability in ORS 656.018 does not bar
plaintiff from pursuing claims against SAIF (and by impli-
cation Integrity and Wicher) for aiding and abetting Perlo’s
alleged employment discrimination. The trial court erred in
dismissing plaintiff’s aiding and abetting claims based on
the workers’ compensation system’s exclusive jurisdiction.
The primary question that remains is whether the
complaint states aiding and abetting claims against SAIF,
Integrity, or Wicher. See Hernandez v. Catholic Health
Initiatives, 311 Or App 70, 80, 490 P3d 166 (2021) (liabil-
ity for aiding and abetting employment discrimination is
not limited to employers and employees). Although the trial
court did not reach that issue, it could provide an alterna-
tive ground for upholding the trial court’s judgment. On
that issue, defendants note that they were responsible for
Cite as 336 Or App 307 (2024) 321
processing plaintiff’s workers’ compensation claim. They
argue that the fact that they processed his claim and denied
it, even if they did so erroneously, is not sufficient to state a
claim against them for aiding and abetting Perlo’s employ-
ment discrimination. In their view, any assistance their
actions provided Perlo was merely incidental and did not
give rise to aiding and abetting liability.
Procedurally, defendants argue, and we agree, that
plaintiff’s allegation that they “aided and abetted” Perlo’s
employment discrimination is, without more, not sufficient
to state an aiding and abetting claim. That allegation, by
itself, merely states a legal conclusion. See Gafur v. Legacy
Good Samaritan Hospital, 344 Or 525, 529, 185 P3d 446
(2008) (disregarding conclusions of law alleged in the com-
plaint). Oregon’s code pleading rules require greater partic-
ularity. See McDowell Welding & Pipefitting v. US Gypsum
Co., 345 Or 272, 283-84, 193 P3d 9 (2008) (requiring that
ultimate facts be alleged with particularity to plead a spe-
cific defense); cf. Crosby v. SAIF Corp., 73 Or App 372, 374-75,
699 P2d 198 (1985) (concluding that an allegation that SAIF
and the plaintiff’s employer “met and agreed” to deprive the
plaintiff of a workers’ compensation benefit was sufficient to
plead an actionable conspiracy).
Arguably, it is possible to go through the complaint
and determine whether any of the allegations is sufficient to
establish that SAIF, Integrity, or Wicher went beyond their
ordinary role in processing plaintiff’s workers’ compensation
claim or that they did so in a way that aided and abetted one
or more of Perlo’s alleged discriminatory acts. It does not
appear, however, that at any stage of this litigation the par-
ties have correctly focused on the minimum standards that
a civil aiding and abetting claim must meet, which poses
an issue for determining the sufficiency of the aiding and
abetting allegations.
With that preface, we first set out the minimum
standard that, as a matter of Oregon common law, an aiding
and abetting claim must meet. We then note cases in which
we and the Supreme Court have either required greater spec-
ificity or recognized a qualified privilege in instances that
are arguably comparable to this case. Finally, we explain
322 Rivera v. Perlo Construction, LLC
why, with the pleadings and arguments in this rudimentary
state, we decline to reach the sufficiency of plaintiff’s allega-
tions as an alternative ground for affirming the trial court’s
limited judgments.
The Oregon Supreme Court has clarified when, as
a matter of Oregon common law, one person may be held
civilly liable for another’s tortious conduct. Granewich v.
Harding, 329 Or 47, 53-54, 985 P2d 788 (1999). More spe-
cifically, the court explained in Granewich that section 876
of Restatement (Second) of Torts (1979) reflects Oregon com-
mon law. Id. That section provides:
“ ‘For harm resulting to a third person from the tortious
conduct of another, one is subject to liability if he
“ ‘(a) does a tortious act in concert with the other or
pursuant to a common design with him, or
“ ‘(b) knows that the other’s conduct constitutes a
breach of duty and gives substantial assistance or encour-
agement to the other so to conduct himself, or
“ ‘(c) gives substantial assistance to the other in
accomplishing a tortious result and his own conduct, sepa-
rately considered, constitutes a breach of duty to the third
person.’ ”
Id. (quoting Restatement § 876).
Not every act that aids another’s tortious acts (even
when done knowingly) will give rise to aiding and abetting
liability under section 876. See Twitter, Inc. v. Taamneh,
598 US 471, 489-93, 143 S Ct 1206, 215 L Ed 2d 444 (2023)
(discussing the common-law antecedents of a federal statute
modeled on section 876). In Taamneh, for example, the Court
held that a complaint failed to state a claim that Twitter
had aided and abetted an ISIS terrorist attack even though
Twitter was aware of ISIS’s use of its platform to recruit ter-
rorists and celebrate terrorism.15 Id. at 481, 505. Closer to
15
The Court summarized its reasoning:
“Plaintiffs allege only that defendants supplied generally available vir-
tual platforms that ISIS made use of, and that defendants failed to stop
ISIS despite knowing it was using those platforms. Given the lack of nexus
between that assistance and [a specific ISIS] attack, the lack of any defen-
dant intending to assist ISIS, and the lack of any sort of affirmative and cul-
pable misconduct that would aid ISIS, plaintiffs’ claims fall far short of plau-
sibly alleging that defendants aided and abetted [the specific ISIS] attack.”
Cite as 336 Or App 307 (2024) 323
home, we have held that, in determining whether a lawyer
allegedly aided and abetted a client’s tortious actions, section
876 should be applied “strict[ly] and narrow[ly].” Reynolds v.
Schrock, 197 Or App 564, 575-76, 107 P3d 52 (2005), rev’d on
other grounds, 341 Or 338, 142 P3d 1062 (2006); see Padrick
v. Lyons, 277 Or App 455, 471-72, 372 P3d 528, rev den, 360
Or 26 (2016) (following our decision in Reynolds). On review
in Reynolds, the Supreme Court went further and held that
lawyers representing clients who were allegedly committing
tortious acts have a “qualified privilege”; that is, a lawyer
will be liable for aiding and abetting a client’s torts only
when the “lawyer’s conduct f[alls] outside the permissible
scope of the lawyer-client relationship.” Reynolds, 341 Or at
353.
As noted above, at no point in this case have the
parties focused their arguments on the standards set out
in Granewich. Plaintiff has neither alleged with particu-
larity nor argued whether his aiding and abetting claims
come within a specific subsection or subsections of section
876. Defendants, for their part, have not invoked those
standards in challenging the sufficiency of plaintiff’s alle-
gations, nor have they have argued that those standards
should be strictly and narrowly applied to the extent that
they were processing workers’ compensation claims. Finally,
they have not argued that a qualified privilege should apply,
which would provide additional protection from aiding and
abetting liability.
Perhaps the parties take the position that
Granewich is inapplicable. If that is their position, they have
not explained why that is so. To the extent the parties do
not dispute that Granewich applies, we cannot tell with any
certainty from the pleadings or plaintiff’s arguments which
theory or theories of liability set out in section 876 he bases
his aiding and abetting claims on. Similarly, defendants
have not argued that, in these circumstances, the minimum
standards set out in Granewich should be strictly and nar-
rowly applied, nor have they argued that they are entitled to
598 US at 505. We do not suggest that Taamneh is directly applicable. It illus-
trates, however, the various considerations that, in combination, can inform
whether a complaint states a claim for aiding and abetting under a federal coun-
terpart to section 876(b).
324 Rivera v. Perlo Construction, LLC
a qualified privilege. Given this state of the pleadings and
arguments, we conclude that the better course is to reverse
the limited judgments and remand this case to the trial
court. Plaintiff can decide whether he wants to stand on his
complaint or wants to seek leave to amend. The choice, at
least initially, is his. If he chooses to stand on his complaint,
then the trial court can determine whether the complaint,
as it is currently pleaded, states aiding and abetting claims
against any of the three defendants. If plaintiff seeks leave
to amend, then the trial court can exercise its discretion
whether to allow an amended complaint, and defendants can
respond to any amended complaint that the court allows.16
We recognize that, after concluding that it lacked
jurisdiction, the trial court observed that repleading would
be futile. However, we have reversed the trial court’s juris-
dictional ruling on which that observation apparently
depends; moreover, neither defendants nor plaintiff had
advised the trial court of the Supreme Court’s decision in
Granewich or our and the Supreme Court’s decisions in
Reynolds, all of which potentially bear on whether plaintiff’s
allegations state aiding and abetting claims against defen-
dants. Given that procedural posture, we do not view the
trial court’s observation as necessarily being the last word
on the subject. We accordingly reverse and remand the lim-
ited judgments.
Limited judgments reversed and remanded.
16
We express no opinion on those potential issues.