FILED: May 31, 2000
CITY OF SALEM,
an Oregon Municipal corporation,
Respondent,
v.
STEVEN P. SALISBURY,
GEORGE R. FINCH, and THEODORE J. KISTNER,
Appellants,
and
SALEM POLICE EMPLOYEES' UNION,
by and through Terry Locke,
Intervenor-Appellant.
Appeal from Circuit Court, Marion County.
Richard Barber, Judge.
Argued and submitted October 6, 1999.
J. Michael Alexander argued the cause and filed the briefs for appellants Steven P. Salisbury and Theodore J. Kistner. With him on the briefs was Burt, Swanson, Lathen, Alexander & McCann, P. C.
Aaron E. Clingerman argued the cause and filed the briefs for appellant George R. Finch. With him on the briefs was Law Offices of Michael B. Dye.
Daryl S. Garrettson argued the cause and filed the briefs for intervenor-appellant Salem Police Employees' Union. With him on the briefs was Hoag, Garrettson, Goldberg, Fenrich & Makler.
Joseph D. Robertson argued the cause for respondent City of Salem. With him on the brief were Kim E. Hoyt, and Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P. C.
Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.
EDMONDS, P. J.
Reversed and remanded with instructions to dismiss claims for declaratory relief as to issues involving collective bargaining agreement and for further proceedings not inconsistent with this opinion.
EDMONDS, P. J.
This case involves a declaratory judgment proceeding under ORS chapter 28 brought by the City of Salem (city) seeking a determination of its statutory and contractual obligation to supply uninsured motorists benefits to its police officers. Defendants and intervenor, Salem Police Employees' Union (union), appeal from the trial court's grant of the city's motion for summary judgment. ORCP 47. Defendants include Officers Steven Salisbury and Theodore Kistner, members of the union, and Officer George Finch, who is not a union member. We reverse.
The underlying facts are not disputed. Defendants, acting as police officers, were injured in traffic accidents involving drivers operating uninsured vehicles. Defendants filed workers' compensation claims for their injuries, and those claims have been closed. In addition, defendants filed claims, as insureds, with the city, which is self-insured, asserting that the city was required to furnish them with uninsured motorist coverage.
In its second amended complaint, the city seeks declarations (1) that defendants' claims against it are barred by ORS 656.018 (the exclusive remedy provision of the workers' compensation law); (1) (2) that, in the event the claims are not barred by that statute, the city can elect the coverage limit set forth in ORS 806.070 and offset from the amounts payable under that statute the amounts paid to defendants under their workers' compensation claims; and, (3) that if the court finds that the city is obligated under the collective bargaining agreement with the union to provide coverage, that the city can offset those amounts by the amounts paid on the workers' compensation claims.
After the city filed its complaint, but before the trial court ruled on the city's motion for summary judgment, the union filed a grievance under the collective bargaining agreement. In response to the grievance, an arbitrator ruled that the city was required to furnish benefits to injured union members. In addition, the city and the union stipulated that the arbitrator would retain jurisdiction over any dispute about amounts to be paid to the injured officers. In the circuit court proceeding, the city moved for summary judgment. In contravention to the summary judgment motion, all defendants argued that ORS 278.215 requires the city to provide them uninsured motorist benefits to whatever extent their damages are not compensated by workers' compensation benefits. The union and defendants Salisbury and Kistner also asserted that the circuit court did not have jurisdiction to decide the issue of what was required under the collective bargaining agreement and the city's complaint should be dismissed. In addition, they argued that, under the collective bargaining agreement with the city, the city is required to provide uninsured motorist coverage for union members.
The trial court rejected defendants' arguments and entered summary judgment for the city on its first claim, declaring that
"any and all claims, other than claims under ORS Chapter 656, that the defendants and other members of the intervenor would otherwise have against the City arising out of injuries allegedly sustained by defendants in uninsured or underinsured motor vehicle accidents are barred by ORS 656.018."
Also, the trial court dismissed as moot the city's second and third claims for relief.
Initially, we discuss the claims for declaratory judgment as they pertain to defendants Salisbury and Kistner. As they did below, those defendants assert that the Employment Relations Board (ERB) has exclusive jurisdiction over the issue of whether the city is obligated under the collective bargaining agreement to provide uninsured motorist coverage. ERB has the duty of hearing and deciding all unfair labor practice complaints concerning public employers. Trout v. Umatilla Co. School Dist., 77 Or App 95, 98, 712 P2d 814 (1985), rev den 300 Or 704 (1986). ORS 243.672 provides, in relevant part:
"(1) It is an unfair labor practice for a public employer or its designated representative to do any of the following:
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"(g) Violate the provisions of any written contract with respect to employment relations including an agreement to arbitrate or to accept the terms of an arbitration award, where previously the parties have agreed to accept such awards as final and binding upon them."
The collective bargaining agreement between the union and the city provides that unresolved grievances are subject to arbitration and that "[t]he decision(s) of the arbitrator shall be binding on both parties to this contract." As defined in the agreement, a grievance is "a dispute regarding the meaning or interpretation of a particular clause of this contract or regarding an alleged violation of this contract." The agreement also provides that "changes in existing conditions of employment relating to wages, hours, and working conditions shall be subject to mutual agreement before becoming effective."
The arbitrator found that "[p]rior to 1992, the City maintained a UM [uninsured motorist] policy covering unit employees to a maximum combined limit of $50,000." She concluded, "[t]he former uninsured motorist insurance policy of $50,000 was a benefit covered by the Existing Conditions Article of the Contract." Also, we are mindful of the fact that ERB has exclusive jurisdiction over the interpretation of the parties' contract and the issues involving arbitration under the contract. Reinwald v. Dept. of Employment, 148 Or App 75, 80, 939 P2d 86 (1997). In addition, ERB also has exclusive jurisdiction over any unfair labor practice, although the circuit court may have jurisdiction to enforce remedies "beyond those that ERB can order." Id.
Here, the city proceeded to circuit court for declaratory relief without engaging in the procedures established by the collective bargaining agreement. Because ERB has exclusive jurisdiction over the issue regarding the meaning of the collective bargaining agreement, the city could not circumvent the exercise of that jurisdiction by obtaining a judgment in circuit court for declaratory relief. Therefore, the trial court should have dismissed the city's claim for a declaration regarding defendants Salisbury's and Kistner's ability to recover uninsured motorist benefits under the collective bargaining agreement.
The remainder of our opinion focuses on the issues presented on appeal as they relate to the ability of defendants to make claims for uninsured motorist coverage under ORS 278.215, apart from any rights under the collective bargaining agreement. On review of a summary judgment, we determine whether there exists any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. ORCP 47 C (1997). (2) We review the record in the light most favorable to defendants, the nonmoving parties. Id. Whether summary judgment is permissible in this case involves the interpretation of several statutes. The first level of statutory analysis requires us to examine the text and context of the statutes for evidence of the legislature's intent.
We begin with ORS 278.215, which provides:
"(1) Any insurance or self-insurance provided by moneys from the Insurance Fund for or on account of the operation of motor vehicles within the state's or public body's control, shall provide the uninsured motorist coverage required under ORS 742.500 to 742.504 and, except as specified in ORS 278.205, may provide the personal injury protection benefits required under ORS 742.520 to 742.542.
"(2) Any local public body, as defined in ORS 30.260, which establishes a self-insurance fund under ORS 30.282 for or on account of the operation of motor vehicles within the local public body's control, shall provide the uninsured motorist coverage required under ORS 742.500 to 742.504 and may provide the personal injury protection benefits required under ORS 742.520 to 742.542.
"(3) The uninsured motorist coverage provided under this section shall be excess over any other collateral benefits to which an injured person is entitled, including, but not limited to, other uninsured motorist coverage, insurance benefits, governmental benefits or gratuitous benefits."
The city does not dispute that it is required to provide uninsured motorist coverage under ORS 278.215. Instead, it argues that the coverage required by the statute is applicable only to "non-employees injured in an uninsured motorist accident" and that the workers' compensation law provides the exclusive remedy to city employees injured under the same circumstances.
ORS 278.215 requires that a public body "shall provide the uninsured motorist coverage required under ORS 742.500 to 742.504." ORS 742.504 provides, in relevant part:
"Every policy * * * shall provide uninsured motorist coverage which in each instance is no less favorable in any respect to the insured or the beneficiary than if the following provisions were set forth in the policy. However, nothing contained in this section shall require the insurer to reproduce in such policy the particular language of any of the following provisions:
"(1)(a) The insurer will pay all sums which the insured * * * shall be legally entitled to recover as general and special damages from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of such uninsured vehicle. Determination as to whether the insured * * * is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured and the insurer, or, in the event of disagreement, may be determined by arbitration as provided in subsection (10) of this section.
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"(2) As used in this policy:
"(a) 'Insured,' when unqualified, means when applied to uninsured motorist coverage:
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"(C) Any other person while occupying an insured vehicle provided the actual use thereof is with the permission of the named insured.
"(b) 'Insured vehicle,' except as provided in paragraph (c) of this provision, means:
"(A) The vehicle described in the policy or a newly acquired or substitute vehicle, as each of those terms is defined in the public liability coverage of the policy, insured under the public liability provisions of the policy; or
"(B) A nonowned vehicle operated by the named insured or spouse if a resident of the same household; provided the actual use thereof is with the permission of the owner of such vehicle and such vehicle is not owned by nor furnished for the regular or frequent use of the insured or any member of the same household.
"(c) 'Insured vehicle' does not include a trailer of any type unless such trailer is a described vehicle in the policy.
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"(i) 'Occupying' means in or upon or entering into or alighting from.
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"(k) 'Vehicle' means every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, but does not include devices moved by human power or used exclusively upon stationary rails or tracks.
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"(4)(a) * * *
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"(c) This coverage does not apply so as to inure directly or indirectly to the benefit of any workers' compensation carrier, any person or organization qualifying as a self-insurer under any workers' compensation or disability benefits law or any similar law or the State Accident Insurance Fund Corporation.
" * * * * *
"(7)(a) The limit of liability stated in the declarations as applicable to 'each person' is the limit of the insurer's liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to 'each accident' is the total limit of the company's liability for all damages because of bodily injury sustained by two or more persons as the result of any one accident.
"(b) Any payment made under this coverage to or for an insured shall be applied in reduction of any amount which the insured may be entitled to recover from any person who is an insured under the bodily injury liability coverage of this policy.
"(c) Any amount payable under the terms of this coverage because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by:
"(A) All sums paid on account of such bodily injury by or on behalf of the owner or operator of the uninsured vehicle and by or on behalf of any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under the bodily injury liability coverage of the policy; and
"(B) The amount paid and the present value of all amounts payable on account of such bodily injury under any workers' compensation law, disability benefits law or any similar law.
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"(9)(a) Except as provided in paragraph (c) of this subsection, with respect to bodily injury to an insured while occupying a vehicle not owned by a named insured under this coverage, the insurance under this coverage shall apply only as excess insurance over any other insurance available to such occupant which is similar to this coverage, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.
"(b) With respect to bodily injury to an insured while occupying or through being struck by an uninsured vehicle, if such insured is an insured under other insurance available to the insured which is similar to this coverage, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance or such other insurance, and the insurer shall not be liable under this coverage for a greater proportion of the damages than the applicable limit of liability of this coverage bears to the sum of the applicable limits of liability of this insurance and such other insurance.
"(c) With respect to bodily injury to an insured while occupying any motor vehicle used as a public or livery conveyance, the insurance under this coverage shall apply only as excess insurance over any other insurance available to the insured which is similar to this coverage, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance." (Emphasis added.)
ORS 656.018 provides, in relevant part:
"(1)(a) The liability of every employer who satisfies the duty required by ORS 656.017 (1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers, the workers' beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such conditions or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such conditions, except as specifically provided otherwise in this chapter.
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"(c) Except as provided in paragraph (b) of this subsection, all agreements or warranties contrary to the provisions of paragraph (a) of this subsection entered into after July 19, 1977, are void.
"(2) The rights given to a subject worker and the beneficiaries of the subject worker under this chapter for injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment are in lieu of any remedies they might otherwise have for such injuries, diseases, symptom complexes or similar conditions against the worker's employer under ORS 654.305 to 654.335 or other laws, common law or statute, except to the extent the worker is expressly given the right under this chapter to bring suit against the employer of the worker for an injury, disease, symptom complex or similar condition.
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"(6) Nothing in this chapter shall prohibit payment, voluntarily or otherwise, to injured workers or their beneficiaries in excess of the compensation required to be paid under this chapter.
"(7) The exclusive remedy provisions and limitation on liability provisions of this chapter apply to all injuries and to diseases, symptom complexes or similar conditions of subject workers arising out of and in the course of employment whether or not they are determined to be compensable under this chapter." (Emphasis added.)
Also, we consider in the first level of analysis the prior enacted versions of the operative statutes as context for the existing statutes as well as the preexisting common law and statutory frameworks within which the laws were enacted in our effort to discern the legislature's intent. State v. Webb, 324 Or 380, 390, 927 P2d 79 (1996); Goodyear Tire & Rubber Co. v. Tualatin Tire and Auto, 322 Or 406, 416-17, 908 P2d 300 (1995), on recons 325 Or 46, 932 P2d 1141 (1997). The statutory predecessors of ORS 742.500 through 724.504 were initially enacted in 1959 as former ORS 736.317 and were replaced by ORS 743.786 through 743.792 (1967). Or Laws 1959, ch 413; Or Laws 1967, ch 482. In 1959, ORS 736.317 required insurance policies to provide uninsured motorist coverage on vehicles, with the exception of motor trucks "where the insured has employes who operate the motor trucks and such employes are covered by workmen's compensation." ORS 736.317(3) (emphasis added).
In 1965, the legislature made workers' compensation insurance coverage compulsory, whereas previously it had been voluntary. As part of the statutory scheme, the legislature enacted an exclusive remedy provision and the existing language found in ORS 656.018(2) that "[t]he rights given to a subject worker * * * are in lieu of any remedies * * * against the workman's employer under * * * other laws, common law or statute * * *." Or Laws 1965, ch 285,