S055500, Opinion — Behurst v. Crown Cork & Seal USA, Inc.

29
On certified question of United States District Court for District of Oregon;
certification order dated November 23, 2007; certification accepted January 23;
argued and submitted on December 9, 2008, certified question answered
March 5, 2009
Mia BEHURST,
as personal representative of the
Estate of Tara Lynne Hall, deceased,
Plaintiff,
v.
CROWN CORK & SEAL USA, INC.,
a Delaware corporation,
aka Crown Cork & Seal Company, Inc.;
and Ameco Corporation,
a Wisconsin corporation,
Defendants.
(US District Court No. 04-CV-1261-HA; SC S055500)
203 P3d 207

30 	Behurst v. Crown Cork & Seal USA, Inc.
CJS, Workmen's Compensation§ 926.
En Banc
Mark Morrell, Portland, argued the cause and filed the
brief for plaintiff.
Thomas W. Sondag, Lane Powell PC, Portland, argued the
cause and filed the brief for defendants. With him on the brief
were Vicki L. Smith and Stephanie L. V. Hendricks.
DURHAM,J.
The certified question is answered.

Cite as 346 Or 29 (2009) 	31
DURHAM,J.
This case is before this court on a certified question
of Oregon law from the United States District Court for the
District of Oregon. Plaintiff is the personal representative of
the estate of Tara Lynne Hall, decedent. After plaintiffs
decedent was killed in the course of her employment with
defendant, plaintiff filed an action for wrongful death, alleg-
ing that defendant had caused decedent's death by deliberate
intention. 	Defendant 	responded 	that 	Oregon's 	Workers'
Compensation Law, ORS chapter 656, barred the action. The
federal 	district court now asks this court to determine
whether ORS 656.156(2) allows the personal representative
of a deceased worker to bring an action for intentional wrong-
ful death against the worker's employer, when the only ben-
eficiaries of the claim are the worker's nondependent par-
ents. For the following reasons, we hold that ORS 656.156(2)
removes the exclusive liability bar in ORS 656.0lB(l)(a) to
plaintiffs action for wrongful death under ORS 30.020(1).
Before addressing the facts of this case, we summa-
rize the relevant provisions of the Workers' Compensation
Law and Oregon's wrongful death statute. ORS 656.017
requires a subject employer to provide compensation for a
workers' work-related injuries, among other duties. ORS
656.0lB(l)(a) provides that, if the employer complies with
those duties, it will not be liable for other claims brought by
workers for injuries incurred in the course of employment:
"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 work-
ers, the workers' beneficiaries and anyone otherwise enti-
tled 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."
ORS 656.156(2) removes the exclusive liability bar
set by ORS 656.018(1)(a), if the employer injures or kills a
worker by "deliberate intention":

32 	Behurst v. Crown Cork & Seal 	Inc.
"If injury or death results to a worker from the deliber-
ate intention of the employer of the worker to produce such
injury or death, the worker, the widow, widower, child or
dependent of the worker may take under this chapter, and
also have cause for action against the employer, as if such
statutes had not been passed, for damages over the amount
payable under those statutes."
ORS 30.020 provides, in part, that a decedent's per-
sonal representative may maintain an action against the per-
son who caused the decedent's death, if the decedent would
have had the right to maintain such an action, for the benefit
of named persons, including surviving parents:
"(1) 	When the death of a person is caused by the
wrongful act or omission of another, the personal represen-
tative of the decedent, for the benefit of the decedent's surviv-
ing spouse, surviving children, surviving parents and other
individuals, if any, who under the law of intestate succes-
sion of the state of the decedent's domicile would be entitled
to inherit the personal property of the decedent, and for the
benefit of any stepchild or stepparent whether that step-
child or stepparent would be entitled to inherit the personal
property of the decedent or not, may maintain an action
against the wrongdoer, if the decedent might have main-
tained an action, had the decedent lived, against the wrong-
doer for an injury done by the same act or omission. * * *
"* * * * *
"(2) 	In an action under this section damages may be
awarded in an amount which:
"(a) 	Includes reasonable charges necessarily incurred
for doctors' services, hospital services, nursing services,
other medical services, burial services and memorial serv-
ices rendered for the decedent;
"(b) 	Would justly, fairly and reasonably have compen-
sated the decedent for disability, pain, suffering and loss of
income during the period between injury to the decedent
and the decedent's death;
"(c) 	Justly, fairly and reasonably compensates for
pecuniary loss to the decedent's estate;
"(d) 	Justly, fairly and reasonably compensates the
decedent's spouse, children, stepchildren, stepparents and

Cite as 346 Or 29 (2009)
parents for pecuniary loss and for loss of the society, com-
panionship and services of the decedent; and
"(e) 	Separately stated in finding or verdict, the puni-
tive damages, if any, which the decedent would have been
entitled to recover from the wrongdoer if the decedent had
lived."
(Emphasis added.)
33
In Kilminster v. Day Management Corp., 323 Or 618,
919 P2d 474 (1996), this court held that ORS 656.156(2)
removes the exclusive liability bar in ORS 656.018 to an
action by the personal representative of a deceased worker
against an employer for the worker's wrongful death, if the
personal representative claims that the death resulted from
the employer's deliberate intention. Id. at 629. The interpre-
tive problem that this case poses, and which Kilminster did
not resolve, arises from the legislature's use of distinctive ter-
minology in ORS 656.156(2). ORS 656.156(2) lists several
persons who have an action against an employer for deliber-
ately killing a worker, but that list omits a "parent" of the
worker. 1 By contrast, ORS 30.020(1) expressly mentions
"surviving parents" as persons for whose benefit a personal
representative may bring a wrongful death action. We must
determine whether the omission of nondependent "parents"
from ORS 656.156(2) undermines plaintiff's right to bring
this action under ORS 30.020(1) on behalf of decedent's sur-
viving parents.
We turn to the facts of this case, which are not in dis-
pute. Plaintiff Behurst is the mother of decedent and, as
noted, is the personal representative of decedent's estate.
Decedent was killed while working at a can-making plant
owned and operated by defendant Crown. At the time of her
death, decedent did not have a spouse, child, or dependents
as those terms are defined under the Workers' Compensation
Law. In the certification order, the district court noted that
"[i]t is undisputed that decedent's non-dependent parents are
the only potential beneficiaries of any recovery in the subject
lawsuit."
1 We recognize that a worker's parent may qualify as a "dependent of the
worker" under ORS 656.156(2), but this case does not present that circumstance.
Decedent's surviving parents were not her dependents.

34 	Behurst v. Crown Cork & Seal USA, Inc.
Plaintiff filed this action for wrongful death, alleging
that defendant had caused decedent's death by deliberate
intention. 2 The case subsequently was removed to the federal
district court. Defendant moved for summary judgment,
arguing that ORS 656.018 barred the action, because plain-
tiff was not a spouse, child, or dependent of decedent.
The district court initially denied defendant's motion
for summary judgment, holding that, 	under Kilminster,
plaintiff was authorized to bring the action as decedent's per-
sonal representative. After further argument, however, the
district court certified the following question to this court:
"Does ORS 656.156(2) provide a cause for action to non-
dependent parents, or to a personal representative seeking
compensation for those parents as beneficiaries, of someone
who died on-the-job?"
We accepted the certified question.
The answer to the certified question depends on the
legislative intent behind ORS 656.156(2) and ORS 30.020.
ORS 656.156(2) does not provide a cause of action to nonde-
pendent parents or, for that matter, to any person. Rather,
that statute states that a worker, spouse, child, or dependent
may "take under this chapter" and also may "have cause for
action against the employer, as if such statutes had not been
passed * * * ." (Emphasis added.) The phrase, "have cause for
action," if read in isolation, might signify a grant of a sub-
stantive right to bring an action. But the phrase, "as if such
statutes had not been passed," clarifies that matter. The leg-
islature intended to remove a statutory obstacle to the initi-
ation of an action, not to authorize a new basis for civil liabil-
ity that the law does not already recognize. The phrase "such
statutes" can only refer back to the phrase "this chapter,"
meaning the Workers' Compensation Law. Accordingly, ORS
656.156(2) necessarily assumes that the designated per-
sons-workers, 	spouses, 	children, 	and 	dependents-may
pursue an action against an employer based on some other
source of law, 	as if the exclusive liability bar in ORS
2 Plaintiff also asserted claims of wrongful death by negligence and product lia-
bility against Ameco Corporation, which had installed the machine that killed
decedent. The district court granted summary judgment to Ameco on those claims.
Ameco does not appear before this court, and we do not consider those claims.

Cite as 346 Or 29 (2009) 	35
656.018(1)(a) did not exist, as long as they allege that the
employer caused a worker's injury or death by deliberate
intention. 	This 	court 	implicitly 	recognized 	as 	much 	in
Kilminster when it stated that ORS 656.156(2) "removes the
bar that otherwise would prevent a worker from maintaining
an action for damages against the employer***." 323 Or at
629 (emphasis added).
The question, then, is whether ORS 656.156(2) lifts
the procedural bar set out in ORS 656.018(l)(a) for a personal
representative seeking compensation for parents as benefici-
aries. Kilminster answers that question, at least in part. In
that case, the parents of a deceased worker brought claims
for 	intentional 	wrongful 	death 	against 	the 	worker's
employer. The decedent's father also joined as a plaintiff in
his capacity as the personal representative of the decedent's
estate. The employer argued that ORS 656.156(2) did not
permit the father to bring a wrongful death action as a per-
sonal representative because a "personal representative" was
not listed among the parties to which ORS 656.156(2) per-
mits an action. This court rejected that argument, noting
that ORS 656.156(2) authorizes the personal representative
to vindicate the statutory rights of the "worker" under that
statute by commencing an action against the employer:
"That statute thus removes the bar that otherwise
would prevent a worker from maintaining an action for
damages against the employer, even though the worker is
dead. Logically, the only party who can pursue that action,
and thereby effectuate the substantive right afforded the
deceased worker by ORS 656.156(2), is the worker's per-
sonal representative. Plaintiff is a person who may bring a
claim, 	the 	bar to which has been removed by ORS
656.156(2), in the circumstances."
Id. Accordingly, this court held that ORS 656.156(2), by
removing the exclusive liability bar, clears the way for the fil-
ing of an action by the personal representative on behalf of
the deceased worker against the worker's employer for inten-
tional wrongful death.
Defendant, however, presents two arguments as to
why Kilminster should not control the outcome of this case.

36 	Behurst v. Crown Cork & Seal USA, Inc.
First, defendant asserts that, although ORS 656.156(2) per-
mits a personal representative to bring an action, the repre-
sentative may do so only for the benefit of the persons named
in that provision. Defendant asserts that, because the only
possible beneficiaries of plaintiffs wrongful death action are
decedent's nondependent parents, ORS 656.156(2) does not
eliminate the exclusive liability bar to plaintiff's action. Defen-
dant stresses that that statute does not provide that nondepen-
dent parents may "take under this chapter" or ''have cause for
action." Second, defendant contends that, under the wrongful
death statute, the cause of action belongs to the beneficiaries of
the action-in this case, decedent's parents-and, thus, is not
the cause of action of a "worker" under ORS 656.156(2).
We reject defendant's first argument. Defendant
gives insufficient interpretive weight to a key term in ORS
656.156(2): "worker." The legislature did not qualify that
statutory term or otherwise indicate in text that the deceased
worker's cause of action against the employer is limited, as
long as the claim satisfies the "deliberate intention" criterion.
It is that right of the worker that the personal representative
enforces in bringing a wrongful death action against the
employer under ORS 30.020(1). As this court stated in Storm
v. McClung, 334 Or 210, 223, 47 P3d 476 (2002), "the wrong-
ful death statute places a decedent's personal representative
in the decedent's shoes, imputing to the personal represen-
tative whatever rights, and limitations to those rights, that
the decedent possessed."
The proper question, therefore, is not whether ORS
656.156(2) lists "parents" as potential claimants under that
statute. Rather, the question is whether parents are among
those persons on whose behalf a personal representative may
institute an action for the deliberate wrongful death of a
worker under ORS 30.020. The answer is yes. ORS 30.020(1)
authorizes an action for wrongful death on behalf of"surviv-
ing parents" if the decedent might have maintained an action
against the wrongdoer for the same injurious act or omission.
ORS 30.020(2)(d) authorizes an award of damages in a
wrongful death action to compensate "decedent's * * * par-
ents for pecuniary loss and for loss of the society, companion-
ship and services of the decedent;***." If the personal rep-
resentative's wrongful death claim satisfies the deliberate
intention criterion, the claim is one that "the decedent might

Cite as 346 Or 29 (2009) 	37
have maintained***[,] had the decedent lived, against the
wrongdoer ***."ORS 30.020(1). Accordingly, the personal
representative's claim for wrongful death for the benefit of
decedent's parents properly vindicates the worker's right to
an action under ORS 656.156(2).
Defendant raises other contextual arguments, but
they do not persuade us to a different conclusion. For exam-
ple, defendant notes that ORS 656.005(2) defines a "benefi-
ciary" as "an injured worker, and the husband, wife, child or
dependent of a worker, who is entitled to receive payments
under this chapter." 3 Defendant treats that provision as evi-
dence of a legislative intent to permit actions for the benefit
of only persons expressly named in ORS 656.156(2). That
argument ignores the difference between recovery "under
this chapter"-i.e., receipt of statutory benefits under ORS
chapter 656-and recovery through an action brought by a
personal representative of a deceased worker under ORS
30.020(1). ORS 656.156(2) clearly addresses the former when
it identifies the parties who may "take under this chapter." It
says nothing regarding the latter. 4
Defendant also accuses the plaintiff of attempting to
"supersede" the list of parties who may file an action under
ORS 656.156(2) with the list of beneficiaries provided in ORS
30.020(1). Defendant notes correctly that, in 1913, when ORS
656.156(2) was enacted, 5 Oregon's wrongful death statute did
3 ORS 656.005 provides, in part:
"(2) 'Beneficiary' means an injured worker, and the husband, wife, child or
dependent of a worker, who is entitled to receive payments under this chapter.
'Beneficiary' does not include:
"(a) A spouse of an injured worker living in a state of abandonment for
more than one year at the time of the injury or subsequently. A spouse who has
lived separate and apart from the worker for a period of two years and who has
not during that time received or attempted by process oflaw to collect funds for
support or maintenance is considered living in a state of abandonment.
"(b) A person who intentionally causes the compensable injury to or death
of an injured worker."
4 Defendant also points to ORS 656.204, which governs the distribution of com-
pensation payments and medical benefits upon a worker's death. Defendant
asserts that that statute allocates all such benefits "to the spouse, child, or depend-
ent of the worker, and to no one else." Assuming without deciding that defendant's
construction of ORS 656.204 is correct, it does not persuade us that ORS 656.204
has any bearing on who may benefit from an action that is based on laws outside
the scope of the Workers' Compensation Law, such as ORS 30.020(1).
5 General Laws of Oregon, ch 112, § 22, p 204 (1913). As this court has noted,
the operative wording of ORS 656.156(2) "has remained unchanged since adoption

38 	Behurst v. Crown Cork & Seal USA, Inc.
not operate for the benefit of the decedent's family or depend-
ents. Instead, the statute allowed a decedent's personal rep-
resentative to bring a claim on behalf of the decedent's estate
and to administer any damages recovered as personal prop-
erty of the decedent. 6 See Carlson v. Short Line Ry. Co., 21 Or
450, 458-59, 28 P 497 (1892) (describing claims brought
under wrongful death act). Defendant asserts that, when the
1913 Legislative Assembly enacted the Workers' Compensa-
tion Law, it understood that a personal representative would
bring a wrongful death action on behalf of a worker's estate,
not on behalf of the parties named in the present version of
ORS 30.020(1).
Whether or not that assertion is true, it misses the
larger point. Nothing in the statutory text of ORS 656.156(2)
supports defendant's contention that the 1913 Legislative
Assembly intended to limit the parties who may benefit from
a legal action, as opposed to the parties who may bring the
action. The persons who were most likely to benefit from a
decedent's estate in 1913-and thus, to benefit from a wrong-
ful death action-are the same persons who are named as
beneficiaries under the present wrongful death statute:7 the
decedent's surviving spouse, children, stepchildren, parents,
of the [Workers' Compensation Law]." Kilminster u. Day Management Corp., 323
Or 618, 919 P2d 474 (1996).
6 Lord's Oregon Laws, title V, ch VI,§ 380 (1910), provided:
"When the death of a person is caused by the wrongful act or omission of
another, the personal representatives of the former may maintain an action at
law therefor against the latter, ifthe former might have maintained an action,
had he lived, against the latter, for an injury done by the same act or omission.
Such action shall be commenced within two years after the death, and dam-
ages therein shall not exceed $7,500, and the amount recovered, if any, shall be
administered as other personal property of the deceased person."
7 In 1910, ifa decedent died intestate, his or her personal property would have
been divided as follows. First, an allowance would have been made to a widow "for
the use and support of herself and minor children* * *."Then, the decedent's debts
and administration expenses would have been paid. The residue would have been
left to the decedent's widow or husband, if they had no children. If there were chil-
dren, the widow or husband would have received half of the residue. Any remaining
personal property would have been divided according to the law of intestate succes-
sion for real property. Lord's Oregon Laws, title XLVUI, ch VI, § 7349 (1910).
Under the real property statute, children took first, then the spouse, then the
father of the decedent, then the brothers and sisters, and so on through the dece-
dent's lineal descendants or kindred. In the absence of lineal descendants or kin-
dred, the property escheated to the state. Lord's Oregon Laws, title XLVIII, ch VI,
§ 7348 (1910).

Cite as 346 Or 29 (2009) 	39
stepparents, "and other individuals, if any, who under the
law of intestate succession * * * would be entitled to inherit
the personal property of the decedent[.]" ORS 30.020(1). If
the 1913 Legislative Assembly intended somehow to prevent
those persons from recovering the proceeds of a decedent's
estate, as opposed to filing an action based on the decedent's
death, it could have done so expressly. It did not do so. The
text and context of ORS 656.156(2) are not ambiguous. They
simply fail to support defendant's first argument.
We answer defendant's second argument-that a
wrongful death action belongs to the beneficiaries, not to the
worker-by pointing to the statutory construction of ORS
656.156(2) that this court adopted in Kilminster. There, the
court recognized the practical problem that arises from
authorizing a worker who has died to pursue an action
against an employer for causing the worker's death by delib-
erate intention. The legislature's solution to that conundrum
was to effectuate the deceased worker's right by authorizing
a personal representative to maintain an action for damages,
"the bar to which has been removed by ORS 656.156(2) * * *."
323 Or at 629. But, as Kilminster also makes clear, the right
of action that the personal representative vindicates in this
context is "the substantive right afforded the deceased
worker by ORS 656.156(2) * * *."Id.
It is true that a wrongful death action is not brought
on behalf of the worker, but on behalf of the beneficiaries
named in ORS 30.020(1) and that any recovery goes to those
beneficiaries, 	not 	to 	the 	worker's 	estate. 	Also, 	ORS
30.020(2)(d) allows an award of damages to compensate the
decedent's "spouse, children, stepchildren, stepparents and
parents" for "pecuniary loss and for loss of the society, com-
panionship and services of the decedent." In other words,
ORS 30.020(2)(d) allows a court to provide recovery to bene-
ficiaries for their injuries resulting from the decedent's death.
Those parts of the statutory text explain why this court has
stated in some of its past decisions that the beneficiaries of a
wrongful death action are the "real parties in interest."
Christiansen v. Epley, 287 Or 539, 545-46, 601 P2d 1216
(1979); accord Neher v. Chartier, 319 Or 417, 426, 879 P2d
156 (1994) ("Under the wrongful death statute, the personal

40 	Behurst v. Crown Cork & Seal USA, Inc.
representative of a decedent's estate does not bring a wrong-
ful death action solely on behalf of the estate, but also for the
benefit of the decedent's surviving parents."). (Internal quo-
tation marks and punctuation omitted.)
Those provisions identify the real parties in interest
in a wrongful death action, but do not alter our previous con-
clusion regarding the nature of the underlying claim in a
wrongful death action. It is the worker's claim that the per-
sonal representative vindicates. Only the worker's personal
representative may maintain an action under ORS 30.020.
The personal representative may maintain only one action
for each decedent, "no matter how many beneficiaries there
be." Greist v. Phillips, 322 Or 281, 289, 906 P2d 789 (1995).
And, as Kilminster confirms, the personal representative's
right to bring a wrongful death action is derivative of the
decedent's own right to do so. Kilminster, 323 Or at 626.
Accordingly, we reject defendant's argument that plaintiffs
action is not an action of the "worker" under ORS 656.156(2).
Finally, defendant asserts that this court erred in
deciding Kilminster and that ORS 656.156(2) does not allow a
worker's personal representative to bring an 	action for
wrongful death because the statutory text does not mention
personal representatives. Defendant asserts that, logically,
the cause of action granted to the worker "must be limited to
one a worker can bring-an action for injury, not death."
We adhere to Kilminster: ORS 656.156(2) provides
that, if an employer causes "injury or death" to a worker by
deliberate intention, "the worker * * * may * * * have cause
for action against the employer, as if such statutes had not
been passed * * *." The statute does not distinguish between
a cause of action for injury and a cause of action for death,
and it does not distinguish between the worker and the other
parties who may "have cause for action." Defendant's argu-
ment would require this court to read into the statute a limi-
tation on the term "worker" that the text, considered in con-
text, does not justify. We decline to do so.
The certified question is answered.