CAPITAL CREDIT AND COLLECTION SERVICE, INC., Plaintiff-Respondent,
KERR CONTRACTORS, INC., Defendant-Appellant. CAPITAL CREDIT AND COLLECTION SERVICE, INC., Plaintiff-Respondent,
COLUMBIA NORTHWEST RECYCLING, INC., Defendant-Appellant. CAPITAL CREDIT AND COLLECTION SERVICES, INC., Plaintiff-Respondent,
CRESTLINE CONSTRUCTION COMPANY, LLC, Defendant-Appellant.
Submitted February 5, 2018
County Circuit Court 16CV13072; 15CV17953; Washington County
Circuit Court C153238CV; Audrey J. Broyles, Judge Pro
Tempore. (Judgment in 15C V179 53) Eric Butterfeld, Judge.
(Judgment in C153238CV) Donald D. Abar, Judge. (Judgment in
Yazbeck, Jr., D. Brent Carpenter, and Jordan Ramis PC fled
the briefs for appellants.
Or.App. 487] Michael J. Kavanaugh fled the brief for
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
breach of contract case, defendant challenges the trial
court's grant of summary judgment in favor of plaintiff.
Defendant participated in a workers' compensation and
employers' liability coverage pooling arrangement
operated by Oregon Employers Trust, Inc. (OET). In 2013, OET
imposed an assessment on current and former participants,
including defendant. Defendant did not pay the assessment,
and OET assigned its claim to plaintiff, which filed this
action. The trial court granted summary judgment to plaintiff
on the grounds that the governing contract unambiguously
permitted OET to impose the assessment on defendant. On
appeal, defendant argues that the contract is ambiguous and
that, because the contract relates to insurance, it must be
construed in defendant's favor as not permitting the
assessment. Specifically, defendant argues that the contract
is ambiguous as to the scope of OET's “sole
discretion” to impose assessments and as to the
difference between “cancellation” and
“termination” of the contract for purposes of
assessment. Held: The trial court did not err in granting
summary judgment in favor of plaintiff. The contract is not
ambiguous in either of the regards asserted by defendant.
Or.App. 488] AOYAGI, J.
breach of contract action, the trial court granted summary
judgment in favor of plaintiff, and defendant appeals the
resulting judgment. Defendant contends that the contract at
issue is ambiguous as a matter of law, that it must be
construed against plaintiff because it is an insurance
contract, and that the trial court erred in granting summary
judgment in favor of plaintiff. We conclude that the contract
is unambiguous and that the trial court did not err.
Accordingly, we affirm.
judgment is appropriate when no genuine issue of material
fact exists for trial and the moving party is entitled to
prevail as a matter of law. ORCP 47 C. The parties agree that
their dispute turns on purely legal aspects of contract
interpretation. There are no disputed facts.
Employers Trust, Inc. (OET) operated a workers'
compensation and employers' liability coverage pooling
arrangement, which is essentially a form of insurance.
Approximately 285 companies participated in OET's pool
during the time period relevant to this appeal. Defendant
joined the pool on October 1, 2010. At that time, defendant
entered into a Workers' Compensation and Employers
Liability Self-Insured Group Coverage Pooling and Indemnity
Agreement (Pooling Agreement), which governed the terms of
defendant's participation. Part Six, Condition G, of the
Pooling Agreement, titled "Assessments," provides:
"[OET's] Board of Directors may, in its sole
discretion, at any time impose assessments upon you and our
other Participants or former Participants subject to
assessment. Assessments may also be imposed upon order of the
Director of the Department of Consumer and Business Services
Workers' Compensation Division for the State of Oregon.
[294 Or.App. 489] "Further, I (We) understand and agree
that should I (We) terminate from the group that I (We) will
continue to be jointly and severally liable for the payment
of any compensation due to a subject worker and other amounts
due to the Department of Consumer and Business Services,
Workers' Compensation Division when such compensation and
other amounts arise out of a period when I (We) was (were) a
participant(s) of the group.
"It is further understood and agreed that if an order is
issued by the Department of Consumer and Business Services,
Workers' Compensation [Division] declaring the group to
be in noncompliance under the provision of ORS 656.017, that
I (We) shall be jointly and severally liable for any civil