Dial Temporary Help Service, Inc. v. DLF International Seeds, Inc.

287 P.3d 1202, 252 Or. App. 376
CourtCourt of Appeals of Oregon
DecidedOctober 16, 2012
Docket083421; A145062
StatusPublished
Cited by4 cases

This text of 287 P.3d 1202 (Dial Temporary Help Service, Inc. v. DLF International Seeds, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dial Temporary Help Service, Inc. v. DLF International Seeds, Inc., 287 P.3d 1202, 252 Or. App. 376 (Or. Ct. App. 2012).

Opinion

ARMSTRONG, P. J.

Plaintiff appeals a judgment in defendant’s favor, assigning error to the trial court’s grant of summary judgment to defendant and denial of summary judgment to plaintiff.1 We affirm.

Plaintiff contracted to supply defendant with temporary workers. The contract, which plaintiff drafted, provides, as relevant:

“4. Operation of Machinery and Motor Vehicles: It is agreed by [defendant] that [plaintiff’s] employees are not authorized to operate machinery, automotive or truck equipment without first obtaining written approval from [plaintiff].
“5. Insurance Coverage: It is understood and agreed that insurance furnished by [plaintiff] does not cover liability for injury or damages caused by the operation by [plaintiff’s] employees of [defendant’s] equipment, vehicles, automobiles or trucks. It is further agreed that [defendant] accepts full responsibility for bodily injury, property damages, fire, theft, collision or public liability damage resulting from violation of paragraph #4 * *

Pursuant to the parties’ contract, one of plaintiff’s temporary workers was assigned to work at defendant’s seed warehouse. At the direction of defendant’s shift supervisor, the worker turned off a seed blender and went into a pit beneath the blender to remove debris from it. The worker did not employ any lock-out procedures to prevent the blender from being turned on. As he was cleaning the blender, the worker opened an access door and reached into the blender to loosen material that was packed in it. While the worker’s hand was in the blender, another person turned the blender on, which caused the blender to amputate the worker’s hand.

[378]*378The worker filed a workers’ compensation claim for his injuries, which was processed by plaintiff’s insurer, SAIF Corporation. Plaintiff’s insurance policy with SAIF contained a retrospective premium endorsement under which SAIF charged plaintiff a basic premium, which was less than the standard premium, plus a percentage of the amount that SAIF paid or expected to pay on workers’ compensation claims to which the policy applied. As a result of the worker’s claim, SAIF required plaintiff to pay a retrospective premium of $241,000.

Plaintiff sued defendant for breach of the parties’ contract, seeking to recover as damages the $241,000 retrospective premium that it had paid to SAIF, on the ground that defendant had breached paragraph four of the contract by allowing the worker to operate the seed blender, which breach had caused plaintiff to be liable for the retrospective premium. Defendant answered and asserted as an affirmative defense that, pursuant to ORS 656.018 of Oregon’s Workers’ Compensation Law, it was immune from liability to plaintiff.

Plaintiff moved for partial summary judgment in its favor on defendant’s affirmative defense, contending that ORS 656.018 did not immunize defendant against plaintiff’s breach-of-contract claim. Defendant responded to plaintiff’s motion and filed a cross-motion for summary judgment in its favor on plaintiff’s claim. Defendant contended that it was entitled to summary judgment for three, independent reasons: (1) plaintiff could not recover as damages the $241,000 that it had paid to SAIF because the parties’ contract limited defendant’s liability for a breach of paragraph four to the cost of indemnifying plaintiff against liability for injuries and damages to others as a result of the unauthorized operation of machinery or vehicles by plaintiff’s employees, and the retrospective premium payment is not such a cost; (2) the worker’s injury was not caused by the worker operating the blender and, consequently, defendant had not breached the contract; and (3) the Workers’ Compensation Law immunized defendant against plaintiff’s claim.

The trial court concluded that the worker’s injury had not been caused by his operation of the blender and, [379]*379hence, was not the result of a breach by defendant of the parties’ contract. Consequently, the court granted defendant’s summary judgment motion and denied plaintiff’s motion.

Plaintiff appeals. Because we conclude that it is dispositive and requires us to affirm the judgment in this case, we write to address only whether the contract permits plaintiff to recover as damages for breach of paragraph four the $241,000 retrospective premium that it paid to SAIF, and we will assume, for the sake of our analysis, that the worker’s injury occurred as a result of his operation of the seed blender.

The parties offer competing constructions of their contract. Plaintiff contends that the contract imposes no limit on the damages for which defendant is liable for a breach of the prohibition in paragraph four against the unauthorized operation of machinery or vehicles by plaintiff’s employees. Conversely, defendant contends that the contract limits damages for such a breach to the cost to indemnify plaintiff against liability for injuries and damages to others resulting from the operation of machinery and vehicles by plaintiff’s employees.

We conclude that defendant’s proposed construction of the contract is at least a plausible construction of it. Paragraph five of the contract specifies that the insurance that plaintiff provides in conjunction with providing temporary workers to defendant “does not cover liability for injury or damages caused by the operation by [plaintiff’s] employees of [defendant’s] equipment, vehicles, automobiles or trucks.” That provision can reasonably be understood to distinguish between liability insurance for injuries and damages caused to others by plaintiff’s employees when they are operating defendant’s equipment and vehicles, which plaintiff does not provide, and workers’ compensation insurance, which plaintiff does provide for its employees and which, by its nature, covers its employees without regard to the work that they are doing. Paragraph five goes on to provide that defendant “accepts full responsibility” for the harm caused by plaintiff’s employees as a result of a violation of paragraph four — that is, harm caused by the operation without plaintiff’s approval of machinery or [380]*380vehicles by plaintiff’s employees, for which plaintiff has not provided insurance.

In light of those provisions, the requirement in paragraph four that defendant obtain written approval from plaintiff in order for plaintiff’s employees to be authorized to operate machinery or vehicles can be understood to reflect a concern with the risk to others caused by the operation of machinery or vehicles by plaintiff’s employees, for which plaintiff does not provide insurance and which is not reflected in the cost paid by defendant for the services of plaintiff’s employees. By requiring defendant to obtain written approval from plaintiff authorizing plaintiff’s employees to operate machinery or vehicles, plaintiff can assess the risk of liability to others from its employees’ operation of machinery or vehicles and can determine whether to include the cost of insuring against that risk as a condition of its approval.

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Cite This Page — Counsel Stack

Bluebook (online)
287 P.3d 1202, 252 Or. App. 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dial-temporary-help-service-inc-v-dlf-international-seeds-inc-orctapp-2012.