Farmers Insurance Group v. SAIF Corp.

724 P.2d 799, 301 Or. 612, 1986 Ore. LEXIS 1480
CourtOregon Supreme Court
DecidedSeptember 3, 1986
DocketWCB 80-03994, 82-05466, 82-00902; CA A34131; SC S32512
StatusPublished
Cited by9 cases

This text of 724 P.2d 799 (Farmers Insurance Group v. SAIF Corp.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers Insurance Group v. SAIF Corp., 724 P.2d 799, 301 Or. 612, 1986 Ore. LEXIS 1480 (Or. 1986).

Opinions

PETERSON, C. J.

The claimant is a widow who filed a workers’ compensation claim with the State Accident Insurance Fund (SAIF) and petitioner, Farmers Insurance Group (Farmers) in late 1981, following her husband’s death from a condition later determined to be asbestos-related and attributable to his work. Farmers and SAIF had workers’ compensation policies covering her husband’s employer for different periods of time during which he could have been exposed to asbestos. Both Farmers and SAIF denied the claim.

One issue at the hearing was which insurer was responsible to pay benefits. On March 14, 1983, the referee issued an Opinion and Order holding that SAIF was “liable”. The Opinion and Order made no provision for attorney fees but did contain the following notice:

“NOTICE TO ALL PARTIES: If you are dissatisfied with this Order, you may, not later than thirty (30) days after the mailing date on this Order, request a review by the Workers’ Compensation Board, 480 Church Street, S.E., Salem, Oregon 97310. Any such request for review shall be mailed to the Board at the above address with copies of such request mailed to all other parties to this proceeding. Failure to mail such a request for review within thirty (30) days after the mailing date of this Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER.

“Entered at Portland, Oregon on March 14,1983.”

Accompanying the Opinion and Order was a letter dated March 14,1983, from the referee to the attorneys for the parties, explaining:

“The enclosed Opinion and Order does not make an award for attorneys’ fees. The failure was intentional. I was unable to determine what the fee should be.
* * * *
“I desired to publish the Opinion and Order on the merits within the statutory time
[615]*615“This letter is to advise both of you that I desire a conference regarding the fees.
“I assured [SAIF’s attorney] on March 11 by phone, and by this letter confirm that SAIF’s right of appeal time shall run from the publication of the supplemental attorney fee Order, which will be after the proposed conference.
“I request, therefore, that no appeal be taken from the Order of today.
“ I represent that the Supplemental Order shall issue prior to the expiration of 30 days from today.”[2]

On April 5, 1983, the referee issued a Supplemental Order reciting the issuance of the March 14 order and that “[t]he matter of attorneys’ fees was deferred,” and ordered SAIF to pay attorney fees of $5,800.

The April 5,1983, Supplemental Order provided:

“An Opinion and Order was issued in the above matter on March 14, 1983. The matter of attorneys’ fees was deferred and, following a conference call with attorneys Murphy and Sawyer, and correspondence from both attorneys, dated, respectively, March 30,1983, and March 29,1983, the hearing was again closed, this time on March 31,1983 upon receipt of the last of the two letters.”

The Supplemental Order concerned only the award of attorney fees. It did not purport to republish, incorporate or reconsider the March 14 opinion and order that decided the other issues in the case. It contained a notice identical to the notice contained in the March 14 order.

One or more of the parties either were not sent or did not receive a copy of the April 5 supplemental order. A third order was issued on June 1,1983, purporting to make that date the effective date for review rights. The June 1 order read in full as follows (omitting only the “NOTICE TO ALL PARTIES” language that was identical to the notices contained in the two earlier orders):

“It appearing that one or more parties and/or attorneys [616]*616either were not sent or did not receive copies of the Suppla-mental (sic) Order of April 5,1983 in the above matter, and it further appearing that review rights were thus prejudiced:
“IT IS HEREBY ORDERED that review rights are effective the date of this Order.”

SAIF filed a request for review with the Workers’ Compensation Board (Board) on June 3, 1983. Farmers moved to dismiss the request for review insofar as untimely. The Board denied the motion to dismiss.

The Board ruled:

“By order dated March 14, 1983, the Referee found that the claim was timely filed and that SAIF was the responsible party. In a letter which accompanied the order, the Referee advised the parties that he intended to hold a conference call concerning an award of attorney fees. In his letter, the Referee confirmed his representation to SAIF’s counsel that SAIF’s appeal rights would run from the date of his supplemental order. The Referee specifically requested that no appeal be taken from his March 14,1983 order.
“A Referee may reopen the record and reconsider his decision before a notice of appeal is filed or, if none is filed, before the appeal period expires. Reconsideration may be made upon the Referee’s own motion. OAR 436-83-480(1).
We find the Referee’s letter, which accompanied his March 14 order constituted a motion to reconsider his March 14 order, as well as an order abating it.
“In a Supplemental Order, dated April 5, 1983, attorney fees were awarded. The Supplemental Order specifically referred to the March 14 order. Therefore,pursuant to the dictates of the April 5 order and the intentions expressed in the Referee’s March 14 letter, appeal rights commenced from the date of the Supplemental Order.”

The Board ordered:

“The Referee’s order dated June 1, 1983, which incorporates by reference his orders of March 14, 1983 and April 5, 1983, is affirmed in part and reversed in part. That portion which found that the SAIF Corporation was the responsible party is reversed. SAIF’s denial is reinstated and affirmed. Farmers Insurance’s denial dated June 16, 1982 is set aside and the claim is remanded to Farmers for further processing. The remainder of the Referee’s order is affirmed. Claimant’s [617]*617counsel shall receive $300 for services on Board review to be paid by Farmers Insurance.”

Farmers sought judicial review in the Court of Appeals. It affirmed the Board on the jurisdiction issue and the effect of the March 14, April 5 and June 1 orders as affecting timely review and affirmed on the merits. Farmers petitioned for review.

ORS 656.289(1) (set forth in footnote 1) requires the referee to make an order “not later than 30 days after the hearing.” ORS 656.289(3) states that the referee’s “order is final unless, within 30 days after the date on which a copy of the order is mailed to the parties, one of the parties requests review by the board under ORS 656.295.”

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Bluebook (online)
724 P.2d 799, 301 Or. 612, 1986 Ore. LEXIS 1480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-insurance-group-v-saif-corp-or-1986.