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Toohey v. Aviation Adventures, LLC

Court of Appeals of Oregon

March 4, 2015

Toni L. TOOHEY, individually, and as Personal Representative of the Heirs and the Estate of Frank R. Toohey, Deceased. Plaintiff-Appellant,
v.
AVIATION ADVENTURES, LLC; et al., Defendants, and WYNDHAM WORLDWIDE CORPORATION; Wyndham Resort Development Corporation; and Nancy MacDonald, Personal Representative of the Estate of Jason Ketcheson, Defendants-Respondents

Argued and Submitted March 1, 2013

Page 458

Clatsop County Circuit Court. 092441.

Affirmed.

Louis S. Franecke argued the cause for appellant. With him on the briefs was Franecke Law Group.

Stephen F. Deatherage argued the cause for respondents. With him on the brief were John A. Bennett, Evelyn English Winters, and Bullivant Houser Bailey PC.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 459

[269 Or.App. 418] ARMSTRONG, P. J.

Frank Toohey died in a crash of a private airplane along with the pilot of the plane, Jason Ketcheson. Both Toohey and Ketcheson worked for Wyndham Resort Development Corporation (Wyndham)--Ketcheson was a salesman in Wyndham's Seaside office and Toohey was his supervisor. Ketcheson and Toohey were flying to Klamath Falls for a Wyndham sales-training meeting when the plane crashed shortly after takeoff in Seaside. The estate and heirs of Toohey (plaintiff) brought this action against the estate of Ketcheson (defendant) asserting tort claims for wrongful death. After a bifurcated bench trial that addressed Toohey's and Ketcheson's employment status at the time of the crash, the trial court determined that both Toohey and Ketcheson were Wyndham workers who were acting in the course of their employment at the time of the crash and that Toohey's injury arose out of that employment. As a result, the trial court concluded that plaintiff's claims against defendant were barred under the exclusive-remedy provision in Oregon's Workers' Compensation Law and entered a limited judgment dismissing those claims.[1] We conclude that the trial court did not err and affirm.

Because it informs our discussion, we begin with an overview of the Workers' Compensation Law's exclusive-remedy provisions, which immunize an employer or coworker from tort claims brought by an injured employee. Generally, the Worker's Compensation Law provides the exclusive basis for liability for a complying employer for an injury of a worker that " aris[es] out of and in the course of employment" (a compensable injury).[2] ORS 656.018(1)(a). A worker with

Page 460

a compensable injury cannot seek a remedy against the employer [269 Or.App. 419] under any other law or common law, " except to the extent the worker is expressly given the right under [the Workers' Compensation Law] to bring suit against the employer" for the injury.[3] ORS 656.018(2). That immunity also extends to an employee of the employer ( viz., a coworker) who may be responsible for the worker's injury, unless a statutory exception applies.[4] ORS 656.018(3); Dehiya v. Spencer, 221 Or.App. 539, 544, 191 P.3d 730 (2008) (" [I]f a worker's injury is compensable under the Workers' Compensation Law, then that remedy is exclusive, and the worker cannot seek a tort remedy against a fellow employee instead." ). One of those exceptions is " [i]f the negligence of [the coworker] is a substantial factor in causing the injury * * * and the negligence occurs outside of the capacity that qualifies the person for exemption under this section," viz., outside of the coworker's employment for the employer. ORS 656.018(3)(d).

Plaintiff has not challenged on appeal the trial court's conclusion that Toohey's injury arose out of and in the course of his employment, and thus we proceed on the basis that it did.[5] Instead, plaintiff contends that the trial court erred in determining that Ketcheson's negligence [269 Or.App. 420] occurred within his employment for Wyndham, such that the exclusive-remedy provision immunized defendant from plaintiff's wrongful death claims.

With that background in place, we turn to the facts and the trial court's ruling. Because the trial court acted as the factfinder below, we review the court's findings for any evidence to support them and its conclusions for legal error. Allco Enterprises v. ...


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