Moustachetti v. State

DEITS, J.,

concurring in part; dissenting in part.

I agree with the majority that the summary judgment for the individual defendants should be reversed, but for a different reason from the majority’s. I would hold that the Oregon Tort Claims Act (OTCA) itself does not provide immunity for intentional acts that are outside the scope of an individual defendants’ employment. Because of that, I believe that there are questions of fact concerning whether the individual defendants were acting outside the scope of their employment, and accordingly, summary judgment for them was not appropriate. In my view, however, summary judgment was properly granted to the defendant State of Oregon because, under my reading of the pertinent statutes, the state did have immunity.

ORS 30.265(3)(a) provides:

“(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:

“(a) Any claim for injury to * * * any person covered by any workers’ compensation law.”

The majority concludes that, because plaintiffs tort claim is putatively not covered by the workers’ compensation law,¹ ORS 30.265(3)(a) does not provide immunity to any of the defendants. In effect, the majority disregards the OTCA immunity provision and makes its analysis of the workers’ compensation law the sole basis for deciding whether defendants have immunity from this OTCA claim.

The majority is wrong for a number of reasons. First, the majority’s conclusion is contrary to the plain language of ORS 30.265(3)(a). That statute provides that public bodies and their officers, employees and agents are immune from liability for claims for injury to “any person covered by any workers’ compensation law.” Plaintiff acknowledges that he is a “person covered by the workers’ compensation law.” The majority recognizes that the statute gives immunity from claims by persons covered by workers’ compensation. However, it concludes that, contrary to the plain words of the statute, what the legislature really meant to say is that immunity is available only when a person’s claim is covered by the workers’ compensation law.

The majority decides that it is necessary here to construe the immunity provision of the OTCA and ORS 656.156(2), the exception to immunity in the workers’ compensation law, together. Interestingly, however, it does not look to or rely on the language or legislative history of the OTCA provision, but looks exclusively at the language and purposes of the workers’ compensation law. Perhaps because of that, the majority’s conclusion is completely inconsistent with the language of the OTCA. The immunity provided in ORS 30.265 applies to any claims for on-the-job injuries to “any person covered by any workers’ compensation law.” (Emphasis supplied.) The language of the statute does not limit the grant of immunity only to tort claims for injuries that are covered by workers’ compensation.

The majority concludes that its reading of the OTCA immunity provision is compelled by ORS 656.156(2), the workers’ compensation law provision that excepts an employer’s intentional acts from the exclusive remedy and immunity provisions of that law:

‘ ‘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.)

The majority appears to reason that, because plaintiffs claim against his employer comes within the language of ORS 656.156(2) and, if the employer were a private one rather than the state, it would therefore not be immune from a tort action, a parallel reading must be given to ORS 30.265(3)(a), despite the fact that its language is very different from that of ORS 656.156(2) and clearly vests the state with immunity from claims by persons covered by the workers’ compensation law. That effort to give the two statutes a parallel interpretation is inappropriate because, in addition to the clear difference in their relevant language, there is no parallel in the purposes of the two statutes: ORS 30.265(3)(a) is one of the OTCA provisions that narrows the circumstances under which the state consents to be sued, while ORS 656.156(2) carves out an exception within the workers’ compensation law itself to the general rule of that law that makes workers’ compensation an employee’s exclusive remedy and immunizes the employer from other remedies.

Given the fact that the ORS 30.265(3)(a) and ORS 656.156(2) have different purposes and contexts, there is no reason to strain their language, as the majority does, to make them say the same thing. The assumption that they were meant to coincide is wholly unwarranted and, by their clear terms, they do not coincide. ORS 30.265(3)(a) immunizes the defendants to whom it applies from any action for an injury to a person covered by workers’ compensation. Plaintiff is covered and he, in fact, received compensation for his injuries. It is immaterial that his claim might be actionable under a different statute that applies to different parties and circumstances. The majority’s reading of the OTCA seems to be based on its policy decision that workers should be entitled to the same remedies against public and private employers. That may or may not be a good policy decision, but it is not one that the legislature chose to make in its adoption of the OTCA. I would hold that the summary judgment for the state was properly granted.

With respect to the individual defendants, however, I would hold that ORS 30.265(3)(a) does not provide immunity for intentional tortious conduct that falls outside “the scope of their employment or duties.” We have answered the analogous question under ORS 30.265(3)(c), the “discretionary acts.” immunity provision. In Crosby v. SAIF, 73 Or App 372, 376, 699 P2d 198 (1985), we rejected the defendant state agency’s argument “that intentional torts that involve unlawful conduct can be immune under ORS 30.265(3)(c).” See also Clackamas Co. Fire Protection v. Bureau of Labor, 50 Or App 337, 353, 624 P2d 141, rev den 291 Or 9 (1981). The purposes of paragraphs (a) and (c) of the immunity statute are not precisely the same. See note 2, infra. However, their similarities are greater than their differences. To enjoy immunity under any of the paragraphs in ORS 30.265(3), public employees must have acted “within the scope of their employment or duties.”

As a general proposition in employment law, an employee’s intentional torts that, inter alia, are not aimed at serving the employer and are not of a kind that the employee was hired to perform are not within the scope of employment. Chesterman v. Barmon, 305 Or 439, 442, 753 P2d 404 (1988); Dunn v. Gracia, 95 Or App 150, 768 P2d 419, rev den 307 Or 719 (1989). I would hold that that general proposition is applicable in determining whether a public officer, employee or agent is immune under ORS 30.265(3)(a).² The structure of the Oregon Tort Claims Act supports that conclusion. Under ORS 30.285(1), public bodies have a duty to indemnify and defend officers, employees and agents for tort claims arising out of “the performance of duty.” However, subsection (2) makes the public body’s duty of defense and indemnification inapplicable in cases of “willful or wanton neglect of duty.” In Stevenson v. State of Oregon, 290 Or 3, 13, 619 P2d 247 (1980), the court characterized that statutory language as encompassing claims “based on aggravated misconduct.” It would make no sense, and I decline to ascribe to the legislature the intent, to immunize under ORS 30.265(3) conduct that ORS 30.285(2) makes ineligible for the other protections of the OTCA.

Under my reading of the statute, there are questions of fact as to whether the individual defendants were acting within the scope of their employment or duties and, therefore, whether they are immune under ORS 30.265(3)(a). I agree with the majority that the summary judgment for those defendants was error. However, because the statute does not make the immunity of public bodies contingent on the scope of employment test, I would hold that the summary judgment for the state was proper.

1 In fact, under usual workers’ compensation parlance, the claim is covered. Plaintiffs argument and the majority’s turn on the proposition, discussed below, that the claim is not compensable to the extent of the damages he sustained and that ORS 656.156(2) would allow him to bring a tort “claim” against his employer for damages in excess of the recovery he could obtain through a “claim” under the workers’ compensation law. Therefore, they reason, the tort claim is not covered (or at least not fully) within the meaning of the statute. For purposes of my discussion only, I accept that proposition.

2 Arguably, as we suggested in Crosby, the test for discretionary acts immunity for intentional misconduct should be even more stringent. In addition to the scope of employment question, immunity under ORS 30.265(3)(c) may also turn on the proposition that there can be no discretion to act unlawfully.