50 Trial Lawyer • Winter 2023 DECISIONS OF THE OREGON COURT OF APPEALS ORS 36.105 does not allow a court to vacate a private arbitration award on the ground that the arbitrators committed manifest disregard of the law. Floor Solutions, LLC v. Johnson, 322 Or App 417 (2022); Hellman, J. The employee was represented by Cody Hoesly. The defendant employee worked for the plaintiff employer as CEO and salesperson. The employer fired the employee, asserting the employee committed theft and other misconduct that constituted “cause” for firing the employee under the employee’s employment agreement, which “cause” disentitled the employee to payment of wages. The employer then sued the employee for breach of contract and breach of fiduciary duty and sought a preliminary injunction enjoining the employee from competing with the employer. The trial court denied the injunction and granted the parties’ stipulated motion to abate and transfer the matter to arbitration pursuant to the employment agreement. The arbitrators issued an award in favor of the employee, finding that he did not commit any misconduct and that he was entitled to all of his wages plus interest, penalties, and attorney fees. The employee filed a motion in the court case to confirm the arbitration award. The employer, by contrast, moved to vacate the award under ORS 36.705(1)(d) on the ground that the arbitrators had exceeded their powers by committing “manifest disregard of the law” in rendering their award. The trial court confirmed the award. The employer appealed. The Court of Appeals affirmed, holding that the Oregon Legislature adopted the Revised Uniform Arbitration Act (RUAA), which rejected the “manifest disregard” standard and did not codify the standard as a basis to vacate an arbia claim for relief, and the district court certified two questions to the Oregon Supreme Court: (1) whether a claim under the VPA is available against a public body under the Oregon Tort Claims Act (OTCA); and (2) whether a violation of Oregon’s mandatory childabuse reporting law serves as a basis for statutory liability. With respect to the first question, the court concluded that a statutory claim under Oregon’s VPA is a “tort” within the meaning of the OTCA. Thus, the court explained, a VPA claim is available against a public body, through the OTCA, when the claim is based on the acts or omissions of officers, employees or agents of the public body acting within the scope of their employment or duties. With respect to the second question, the court explained that “statutory liability” arises under Oregon law when the Legislature intends to create a statutory private right of action that will exist independently of any common-law negligence claim for the same conduct. The court then considered whether the plaintiff had established two threshold requirements for his claim of statutory liability: (1) that a statute imposed a duty on the defendants; and (2) that the Legislature expressly or impliedly intended to create a private right of action for violation of that duty. After reviewing the text of the statutes that the plaintiff alleged the defendants had violated (ORS 419B.015, 419B.020, 419B.023, and 419B.028), the court concluded those statutes plausibly imposed duties on the defendants with respect to the law enforcement response to an existing report of child abuse. But after further review of the text, context and legislative history of those statutes, the court held the Legislature did not intend to create a statutory private right of action to address violations of those duties. Sheets Continued from p 49
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