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Capital Credit And Collection Service, Inc. v. Kerr Contractors, Inc.

Court of Appeals of Oregon

October 17, 2018

CAPITAL CREDIT AND COLLECTION SERVICE, INC., Plaintiff-Respondent,
v.
KERR CONTRACTORS, INC., Defendant-Appellant. CAPITAL CREDIT AND COLLECTION SERVICE, INC., Plaintiff-Respondent,
v.
COLUMBIA NORTHWEST RECYCLING, INC., Defendant-Appellant. CAPITAL CREDIT AND COLLECTION SERVICES, INC., Plaintiff-Respondent,
v.
CRESTLINE CONSTRUCTION COMPANY, LLC, Defendant-Appellant.

          Submitted February 5, 2018

          Marion 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 16CV13072)

          Joseph Yazbeck, Jr., D. Brent Carpenter, and Jordan Ramis PC fled the briefs for appellants.

          [294 Or.App. 487] Michael J. Kavanaugh fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         In this 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.

          [294 Or.App. 488] AOYAGI, J.

         In this breach of contract action, the trial court granted summary judgment in favor of plaintiff, and defendant[1] 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.

         Summary 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.

         Oregon 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 penalties ...

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