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Giltner v. Commodore Contract Carriers

August 27, 1973


Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge (Judgment). Phillip J. Roth, Judge (Order on attorney fees). No. 372-247.

Keith D. Skelton, Portland, argued the cause and filed the brief for appellant.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison, and Dan O'Leary, Portland.

Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.


Defendant-employer Commodore Contract Carriers appeals from award of workmen's compensation and attorney fees to claimant. It contends: (1) that Nebraska rather than Oregon law is applicable for workmen's compensation determinations in the case; (2) that claimant was an independent contractor and not entitled to coverage under the Oregon law if it is applicable; (3) that the accident in question did not arise out of and in the course of employment; (4) that it was denied due process of law in that claimant's attorney refused to comply with the hearing officer's order providing for the taking of claimant's deposition; and (5) that an allowance of attorney fees made to claimant in the case is not sustainable.

Claimant owned and operated a truck used exclusively for hauling mobile homes from Commodore's affiliated corporation's manufacturing plant at Roseburg, Oregon to destination points outside of Oregon. The arrangement was under a written agreement by which claimant provided the truck and leased it to Commodore. Claimant lived in Portland. When he made trips in compliance with the lease he did so upon being called by Commodore's dispatcher in Roseburg. He would drive the truck from Portland to Roseburg, haul the mobile home to its destination (most often east or north of Oregon) and return to his home in Portland awaiting another call. He was required to make occasional hauls to California, which entailed extra travel in returning with the truck to his home in Portland.

Commodore provided all of the licenses required and placed its name upon the side of the truck. It paid expenses of operation and a minimum of $500 monthly to claimant. Monthly compensation of claimant was arrived at by totalling payments per mile which were scheduled in the lease for actual delivery miles. If this total were less than $500, $500 is what claimant received; if more, he received the total. Claimant could hire other drivers but they were subject to control by Commodore. Claimant could be terminated at any time without notice on several contingencies, including failure to obey "* * * his duties or obligations under this lease * * *." Claimant could terminate his arrangement with 30 days' notice. Commodore provided liability insurance on the trucks and cargo. The equipment was required to be maintained to the standards of Commodore and claimant was required to report immediately to Commodore any accidents, injuries or property damage.

Claimant was injured in an accident on the highway as he was driving the truck to Roseburg in response to the dispatcher's call to pick up a mobile home for delivery. He claimed compensation under Oregon's Workmen's Compensation Law. His claim was denied. Before the first hearing defendant obtained an order from the hearing officer providing for a deposition to be taken of claimant. Claimant's attorney refused to make him available therefor unless a reasonable attorney fee was paid, which was refused and no deposition was taken.

The first determination of the hearing officer was appealed. Then a second hearing was held before the hearing officer as a result of a remand order from the Workmen's Compensation Board. After the second hearing the determinations of the hearing officer remained intact and they were affirmed in succession by the Workmen's Compensation Board and the circuit court.

(1). A provision of the lease agreement between claimant and Commodore provides that it "* * * shall be deemed to have been executed in * * * Nebraska and shall be governed by and construed in accordance with the laws of that State." Defendant contends that this imposes the workmen's compensation law of Nebraska upon the determination of the issues involved. Even if the quoted language can be so construed, we think this contention is untenable. First, ORS 656.027 provides that all workmen (workmen in Oregon) are subject to the Workmen's Compensation Law

"* * * except those nonsubject workmen described in the following subsections:

"* * *

"(5) A workman engaged in the transportation in interstate commerce of goods, persons or property for hire by rail, water, aircraft or motor vehicle, and whose employer has no fixed place of business in this state."

Employer has a fixed place of business in this state, namely, in Roseburg where Commodore's sole Oregon employe, the dispatcher, controls the distribution of the product manufactured there, and also controlled claimant and his vehicle. He is the "nerve center" for the Pacific Northwest of the Nebraska corporation.

Workmen's compensation laws do not set up simply private arrangements between employe and employer. They provide the overall social benefits deriving from a uniform workmen's compensation system. Therefore, as 3 Larson, Workmen's Compensation Law 408.41-408.42, ยง 87.71 (1971) states:

"* * * [T]he public has a profound interest in the matter which cannot be altered by any individual agreements. This is most obvious when such an agreement purports to destroy jurisdiction ...

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