48 Trial Lawyer • Spring 2022 compromised and settled. The court concluded, in the “unique posture” of this case, the plaintiff provided a cognizable basis for relief under ORCP 71 and the general judgment of dismissal should be reversed. ORS 656.019 is a procedural statute which neither sets forth an exception to employer immunity under the workers’ compensation scheme nor provides the worker with a substantive right to bring a negligence action against the employer. Bundy v. Nustar GP LLC, 317 Or App 193 (2022), James, P.J. Carl Post represented the plaintiff. Jim Coon filed an amicus brief for OTLA. The plaintiff suffered injuries after being exposed to dangerous levels of diesel, gasoline and ethanol fumes when working as a terminal operator. After receiving workers’ compensation for those injuries, additional medical conditions arose from the same incident. The plaintiff’s claim for further compensation was denied on the basis that the earlier exposure “was not the major contributing cause of the subsequent conditions.” In this civil action, the plaintiff made several attempts to allege a claim against the employer that would fall within an exception to immunity ordinarily afforded to employers under ORS 656.018. After the Oregon Supreme Court remanded this case to the trial court in the first appeal, the plaintiff sought to file a Fourth Amended Complaint, arguing that ORS 656.019(1)(a) sets forth an exception to immunity and affords him a substantive right to bring this action. The defendant objected, arguing that the statute addresses only the timing of an injured worker’s negligence claim which, in turn, must be authorized under some other source of law. The trial court agreed with the defendant, granted the defendant’s motion to dismiss the Fourth Amended Complaint and entered a final judgment dismissing the claims. The plaintiff commenced this second appeal, arguing only that ORS 656.019 creates a substantive exception to ORS 656.018. The Court of Appeals determined that the text of ORS 656.019(1)(a) expressly sets forth a procedural limitation on claims that must be authorized elsewhere. The Legislature’s intent is further clarified in ORS 656.019(1)(b), which unambiguously states, “Nothing in this subsection grants a right for a person to pursue a civil negligence action that does not otherwise exist in law.” The court concluded that ORS 656.019 is a procedural statute governing the timing of an otherwise authorized negligence action and does not itself set forth that authorization. Because the plaintiff made no further constitutional arguments regarding his right to bring the claim, the Court of Appeals rejected the plaintiff’s statutory argument and affirmed the trial court’s judgment. Fee paid for ATV permit for use on state lands is not a charge for permission to use the land for purposes of excepting the state’s immunity from suit. Stedman v. State, 316 Or App 203 (2021), DeVore, P.J. Melissa Hopkins represented the plaintiff. In third amended complaint, beneficiaries of estate sufficiently alleged a direct breach of contract claim against fiduciary of trust; beneficiaries failed to allege sufficient facts for direct breach of contract claim against trustee’s attorneys, or sufficient facts for negligence and indirect breach of contract claims against attorneys for trustee, attorneys for court-appointed special fiduciary, or against court-appointed special fiduciary. Moyer v. Columbia State Bank, 316 Or App 393 (2021), Shorr, J. John W. Stephens represented plaintiffs. Under ORS 653.295(4)(b), once an employee takes affirmative steps to manifest an intention to treat a noncompetition agreement as void, it is the employer’s burden to prove that the agreement is enforceable. Oregon Psychiatric Partners, LLP v. Kelley Henry, 316 Or App 726 (2022); Aoyagi, J. The plaintiff was represented by Wm. Randolph Turnbow. Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-2224424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 707 SWWashington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermandahab.com or 503228-6474. Sheets Continued from p 47
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