FILED: October 16, 2002
DAVID R. DAY,
Appellant,
v.
ADVANCED M&D SALES, INC.,
an Oregon corporation,
Respondent.
Appeal from Circuit Court, Multnomah County.
Jeffrey M. Kilmer, Judge.
Argued and submitted June 6, 2002.
Robert A. Miller argued the cause for appellant. With him on the briefs was Law Office of Robert A. Miller.
Lisa E. Lear argued the cause for respondent. With her on the brief were David R. Rocker, Ronald J. Clark, and Bullivant Houser Bailey, PC.
Before Edmonds, Presiding Judge, and Armstrong, Judge, and Warren, Senior Judge.
EDMONDS, P. J.
Affirmed.
EDMONDS, P. J.
Plaintiff appeals from a summary judgment in favor of defendant, ORCP 47, on his claims for negligence and violations of the Employer Liability Law. ORS 654.305 - 654.335. Defendant moved for summary judgment on the ground that plaintiff's claims are barred by the "exclusive remedy" provision of the Workers' Compensation Law, ORS 656.018. The trial court held that plaintiff is judicially and equitably estopped from denying that he is a covered worker under defendant's workers' compensation insurance and that, because plaintiff is a covered worker, ORS 656.018 bars his civil action. (1) We affirm.
The following facts are undisputed. Before to his injury, plaintiff was an independent floor installation contractor who carried his own workers' compensation insurance coverage. He also worked for defendant as a salesman and was paid on commission. During the times he worked for defendant in his salesperson capacity, he was covered by defendant's workers' compensation policy. In October 1998, defendant held a seminar at which a laminate floor was installed in defendant's showroom. Plaintiff attended the seminar in his capacity as a salesperson. After the seminar ended, defendant asked plaintiff and other independent floor installation contractors to finish the floor. Plaintiff's hand was seriously injured in the process of finishing the floor installation.
After discussions with defendant about the possibility of plaintiff's injury being covered by defendant's workers' compensation policy, plaintiff and defendant agreed that plaintiff would file a claim with defendant's insurance carrier. A workers' compensation claim form for coverage, referred to as Form 801, was then completed. Plaintiff filled out and signed the top section of the form, and defendant completed the employer section and submitted it to its insurer. On plaintiff's portion of the form, the following appears:
1. Worker's legal name (first, m.i., last):David R. Day 2. Home [phone]:
[omitted] 3. Date of Birth:
7-19-52 4. Social Security Number (see back of form): [omitted] 5. Worker's street address:
[omitted] 6. Male Female 7. Education []: 8. Hospitalized overnight as inpatient? If emergency room only, mark "NO," Yes No 9. Nature of injury/disease []:
R. Hand R for[e]finger severed 10. Name and City of Hospital:
Ema[n]uel Hosp. 11. Body Part(s) affected: Left
Right Hand Right 12. Name of address of health insurance provider: Blue Cross 13. Date of injury/disease:
10-16-98 14. Time of injury:
3:00 p.m. 15. Has body part been injured before? (If yes, explain)
Yes No 16. Full name, address and phone no. of attending physician:
Dr. Fortes, See Attach
(503) 935-5724
17. Describe accident fully (please
print): Hand came into
contact with table saw
blade
18. By my signature I am giving NOTICE OF CLAIM and authorizing medical providers and other custodians of claim records to release relevant medical records. I certify that the above information is true to the best of my knowledge and belief (see paragraphs 3 and 4 on the back). By my signature I also authorize the use of my SSN as described in paragraph 2 on the back. * * * X [signed by plaintiff] "
Also, plaintiff filled out the following supplemental form, which was then attached to the
801 form:
"Employer: Advanced M & D Sales Job Title: Salesman
"* * * * *
"Who is your direct supervisor? Joe White
"Specific duties you perform in your job: selling "
Defendant's insurer investigated and determined that plaintiff was a covered worker and entitled to benefits. It accepted plaintiff's claim and paid out $24,817 in benefits for his injury. As of February 14, 2000, claimant's workers' compensation claim had yet to be closed.In early 2000, plaintiff attempted to withdraw his workers' compensation claim with defendant's insurer, which he believed was a predicate to pursuing a civil claim against defendant. In a letter dated February 14, 2000, the insurer declined to allow plaintiff to withdraw his claim. It later suspended plaintiff's benefits based on his failure to attend a scheduled medical examination. Plaintiff then filed the complaint in this action.
Defendant moved for summary judgment on the grounds of judicial and equitable estoppel, arguing that
"[o]nly employees not covered by the workers' compensation act may bring an action under the Employer's Liability Act. * * *
"* * * * *
"[Plaintiff] made a claim for workers' compensation benefits on the basis that he was a 'worker' within the meaning and intent of the workers' compensation law. [He] received benefits under the law based on this position. [He] cannot now assert that he is not a 'worker' subject to the workers' compensation statutory system."
In response to defendant's motion, plaintiff argued that equitable estoppel applies only when there has been a false representation that is relied on by the defendant, and that he had made no false representations to defendant. Further, plaintiff argued, judicial estoppel could not bar plaintiff's claims in this case because there was no "final determination of the Workers' Comp claim." The trial court rejected plaintiff's arguments and entered judgment for defendant. On appeal, plaintiff reiterates the arguments that he made to the trial court. Because we uphold the trial court's summary judgment on the basis of equitable estoppel we do not address the issue regarding judicial estoppel.
With reference to equitable estoppel, plaintiff argues on appeal that he never made a false representation to defendant. He explains that "[p]laintiff, [d]efendant and [defendant's insurer] were aware of the same facts as to how and where [p]laintiff was injured." For equitable estoppel to apply, there must be (1) a false representation, (2) made with knowledge of the facts, (3) with the intent that the other party rely, (4) when the other party was ignorant of the truth, and (5) the other party must have been induced to rely upon the representation to his detriment. Coos County v. State of Oregon, 303 Or 173, 180-81, 734 P2d 1348 (1987). Equitable estoppel has also been recognized as applicable "where an individual accepts the benefits of a particular transaction or state of affairs." Hess v. Seeger, 55 Or App 746, 762, 641 P2d 23, rev den, (1982). For an estoppel based on the acceptance of benefits,
"it is essential that the party against whom estoppel is invoked should have acted with knowledge of his rights, and that the party claiming estoppel was without knowledge or means of knowledge of the facts on which he bases his claim of estoppel, that he was influenced by and relied on the conduct of the person sought to be estopped, and that he changed his position in reliance thereon to his injury."
Id. (quoting 5 Thompson on Real Property