US Bancorp v. Mulrooney

107 P.3d 673, 198 Or. App. 93
CourtCourt of Appeals of Oregon
DecidedMarch 2, 2005
Docket01-09466, 01-08222; A122702
StatusPublished
Cited by1 cases

This text of 107 P.3d 673 (US Bancorp v. Mulrooney) 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
US Bancorp v. Mulrooney, 107 P.3d 673, 198 Or. App. 93 (Or. Ct. App. 2005).

Opinion

HASELTON, P. J.

Petitioner US Bancorp seeks review of an order of the Workers’ Compensation Board (the board) setting aside petitioner’s denial, and reinstating SAIF Corporation’s (SAIF) denial, of claimant’s compensable injury. Claimant cross-petitions for review of the board’s denial of attorney fees. As described below, we sustain the board’s determination that, at the time of his injury, claimant was not employed by SAIF’s insured. Accordingly, we affirm on the petition for review. Because claimant’s alleged entitlement to attorney fees is without merit, we affirm on the cross-petition without further discussion.

The pertinent facts are largely undisputed. In the early 1990s, Bula Arveson established the Bula Buck Arveson Trust to assist in the management of her affairs, see ORS 128.009(1), (3)(x), and to administer and distribute her estate after her death. Arveson was both the trustor and the initial trustee and, in a subsequent amendment to the trust document, she named US Bancorp as successor trustee in the event of her death, resignation, or incapacity. In June 1998, due to her advancing age and various health problems, Arveson resigned as trustee. Throughout the period between June 1998 and Arveson’s death in 2001, representatives of US Bancorp, as trustee of the Bula Buck Arveson Trust, managed Arveson’s financial affairs.

Among other things, the trustee coordinated payment of Arveson’s premiums to SAIF for workers’ compensation insurance. Arveson had obtained a workers’ compensation policy with SAIF in August 1997 to cover her in-home health care employees.1 The trustee also transferred funds from the trust to Arveson’s private checking account each month in order to cover payroll expenses. Once sufficient funds were deposited into Arveson’s checking account, a payroll service would issue to each employee a personal check signed by Arveson.

[96]*96By early 2000, Arveson, then in her late nineties, was blind due to macular degeneration and had a staff of about 10 caregivers devoted solely to providing her round-the-clock care. Beginning in February 2000, Arveson employed claimant as a member of her full-time health care staff. Claimant, a chiropractic physician, ultimately supervised the staff and coordinated Arveson’s health care needs. With claimant’s help, Arveson was eventually able to move out of the care facility where she had been living and into a rented apartment. Claimant assisted with finding the apartment, and he personally handled a number of repairs necessary to facilitate Arveson’s needs, such as the installation of heat lamps and extra storage.

Arveson died on July 1, 2001. The following day, claimant spoke with the trustee from US Bancorp. According to claimant,

“in that conversation we — I think we mentioned that, of course, the care givers would not be staying on because there was no care giving to do. And at this time things had changed substantially. We had moved [Arveson out] of assisted living back into independent living. She had her own apartment. So in the discussion we talked about my staying on to assist * * * closing] up the apartment so we could get it back in shape to surrender back to the owners.”

Several weeks later, while working in Arveson’s apartment, claimant fell from a ladder and injured his knee.

Claimant filed a claim with SAIF on July 20, 2001. SAIF denied the claim, asserting that US Bancorp, as insurer for the trustee, was the responsible carrier. Claimant then filed a claim with US Bancorp’s workers’ compensation carrier, Constitution State Service Company (Constitution). Constitution also denied responsibility for the claim.2

A hearing was held before an administrative law judge (ALJ) to determine whether SAIF or Constitution bore [97]*97responsibility for payment of compensation.3 SAIF argued that claimant’s employment contract with Arveson necessarily ended with her death and that, accordingly, when the trustee asked him to “stay on” to help settle Arveson’s affairs, a new employment contract was formed between claimant and the trustee. SAIF did not dispute that coverage under Arveson’s policy continued after her death; instead, SAIF suggested that claimant was no longer Arveson’s employee at the time of his injury. US Bancorp agreed that claimant was employed by the trustee, but argued that “under the terms of the trust, U.S. Bank was operating with the explicit authority of Bula Arveson. In effect, there was a merger of Bula Arveson and the trust for business purposes” such that SAIF’s policy covered both Arveson’s and the trust’s employees.

The ALJ agreed with US Bancorp. In his opinion and order, the ALJ found that Arveson had obtained the policy from SAIF “on her own behalf’ and agreed that claimant was employed by the trust at the time of his injury. However, the ALJ concluded that, although the “employment contract relationship between Bula Arveson and [claimant] was terminated by common law at Bula Arveson’s death,” that fact was “irrelevant” because the contract for workers’ compensation insurance covered trust employees. The contract with SAIF, the ALJ found, “was formed with the disclosed agent of Bula Arveson, the Bula Arveson Trust, and that agent was empowered by Bula Arveson to continue to conduct her financial affairs through the Trust Agreement after her death.” As support for his conclusion, the ALJ noted that SAIF had received premium payments from the trust and had, for a number of years, conducted business relating to Arveson’s policy via the trust. The ALJ also awarded attorney fees to claimant’s attorney pursuant to ORS 656.307(5).

On review, the board reversed. First, the board reviewed the evidence — and, in particular, Arveson’s application with SAIF and the subsequent DCBS acknowledgment letter — and determined that the policy insured Arveson’s employees alone. In so determining, the board [98]*98noted that, although the trust managed Arveson’s financial affairs, the trust remained a “legal entity that is separate from the creator of the trust and its beneficiaries.” The board also held that claimant was not Arveson’s employee at the time of his injury because once Arveson died, claimant could no longer provide services under his employment contract. Citing ORS 656.005(13)(a), the board held that, when the trustee asked claimant to “stay on” to help settle Arveson’s affairs,

“the trust, through its representatives, orally contracted with claimant to pay a remuneration and secured the right to direct and control claimant’s services. We, thus, find that claimant was an employee of the trustee, US Bancorp, at the time of injury.”

On judicial review, US Bancorp again argues that Arveson and the trust were “one entity” insured by SAIF’s policy and that the trustee was not acting as a “separate employer” when he asked claimant to “stay on.” Instead, according to US Bancorp, the trustee extended that invitation as Arveson’s agent and, when claimant agreed, he was essentially continuing his employment for Arveson.

In addition, we understand US Bancorp to raise two related estoppel arguments.

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Bluebook (online)
107 P.3d 673, 198 Or. App. 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bancorp-v-mulrooney-orctapp-2005.