Adams v. Transamerica Insurance Group

GILLETTE, J.,

specially concurring.

I concur in the result reached by the majority and in much of its opinion. However, I hold a different view as to some of the questions discussed, and I specifically disagree with part of the position taken by the dissent. Accordingly, I take this opportunity to state my separate views:

POSTURE OF THE CASE

This case is, in reality, an appeal from an order of the Workers’ Compensation Board. Such appeals are governed by ORS 656.298(1). They may only be taken by a 'party' and they come to this court. "Party”, as defined in ORS 656.005(22), cannot include plaintiff here. 1

With this much the majority appears to agree, but it then goes on to discuss the case as if there were some way plaintiff here might still collaterally attack the Board’s order. With respect, I disagree. The Board’s order is final; it cannot be disturbed. 2 Any analysis arrived at determining whether the Board’s order was correct is therefore beside the point. I would not go on to discuss what lawsuits plaintiff might bring against other parties. 3

*777 THE BOARD AS A NECESSARY PARTY

It also seems to me to be important to discuss, however briefly, the dissent’s suggestion that the Board was a necessary party in this case. It was not. It had decided a matter and the time for appeal from its decision had passed. It had no more interest in the matter it had decided than a trial court would have in separately appearing in the appeal of a tort action it had decided.

The dissent’s reliance upon Pike v. Allen International Ltd., 287 Or 55 , 597 P2d 804 (1979), also seems to me to be misplaced. That case held that the Oregon Liquor Control Commission was a necessary party to a declaratory judgment proceeding in which the central issue was the meaning of a statute the commission was obliged to interpret and enforce. Recognition of an agency’s interest as an administrator obligated to enforce a statute and to promulgate rules pursuant to that statute is a far cry from suggesting that the same agency has some further interest after it had made a routine quasi-judicial decision.

With the foregoing reservations, I concur in the result reached by the majority.

TONGUE, J.

This is an action for a declaratory judgment that an order made by the Workers’ Compensation Board was void. The Workers’ Compensation Board was not made a party defendant.

The majority may be correct in holding that plaintiff had no standing to bring this action. The question of standing, however, does not go to the jurisdiction of the court. Objections to standing may be waived. No objection was made by any party to the standing of the plaintiff to bring this case, either in the trial court or in this court. Also, as recognized by the majority, the insurer had standing and also desired to have the *778 validity of the settlement agreement decided by the court. Thus, neither party has had an opportunity to be heard on the question which has been decided by the majority, sua sponte, as the basis for its opinion in this case.

Also, and with all due respect to the majority, I am of the opinion that this court has no jurisdiction to decide whether plaintiff had standing to bring this action because the trial court had no jurisdiction to determine the validity of that order by the Workers’ Compensation Board in its absence as a party to this case.

ORS 28.110 provides:

"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.” (Emphasis added)

In addition, ORS 28.060 provides:

"The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

In Stanley, Adm. v. Mueller; 211 Or 198 , 315 P2d 125 (1957), the court considered these statutory provisions at some length and held (at 202):

"In our opinion the mandatory 'shall’ in this statute should be given its ordinary effect by the courts. We think that under this provision the courts have no authority to make a declaration unless all persons 'who have or claim any interest which would be *779 affected by the declaration’ are parties to the proceeding. Otherwise, there is no 'justiciable controversy’ within the meaning of the statute.”

See also Annot. 71 ALR 2d 723 (1960).

The Oregon Supreme Court recently reaffirmed this rule in Pike v. Allen International Ltd., 287 Or 55, 59-60 , 597 P2d 804 (1979), and held that it is applicable in a case in which a declaratory judgment is sought to declare invalid an order by a state administrative agency which had not been made a party to the proceeding. 1

The Workers’ Compensation Board is a state agency which clearly has an "interest which would be affected” by an action for declaratory judgment brought for the purpose of seeking a decision declaring that the Board had "no authority to act” when it issued the order in question. In addition, the Board has acted on the specific matter in controversy in this case.

It follows, in my opinion, that because no "justiciable controversy” was presented by this complaint within the meaning of the Uniform Declaratory Judgments Act, the circuit had no jurisdiction to enter its decree in this case. It also follows, in my opinion, that this court also has no jurisdiction to undertake to determine whether plaintiff had standing to bring this action.

In such a case this court has jurisdiction only to decide, in its discretion, whether to dismiss the proceeding or to remand the case to the circuit court with *780 leave to allow the absent party to be made a party to the proceeding. Pike v. Allen International Ltd., supra; 1 Anderson, Actions for Declaratory Judgments, § 168, pp 325-28 (1951); 22 Am Jur 2d, Declaratory Judgment, § 80, pp 943-44 (1965). See also Stanley, Adm. v. Mueller, supra, at 210.

Finally, the Workers’ Compensation Law provides procedures for obtaining review of orders by the Workers’ Compensation Board. Aggrieved persons may request a hearing (See ORS 656.283), or in appropriate cases appeal Board orders to the Court of Appeals. (See ORS 656.298). Plaintiff has sought neither remedy nor offered any explanation why he has not done so.

Until 1977 all appeals from orders by the Workers’ Compensation Board were taken to the circuit courts. ORS 656.298 was amended by the legislature in 1977, substituting the Court of Appeals as the appellate tribunal. 1977 Or Laws, ch 804, § 11. Under the terms of ORS 656.298, this court now has exclusive jurisdiction over all appeals from orders by the Workers’ Compensation Board. It follows that the circuit courts now have no jurisdiction over appeals from orders by the Board to determine the validity of such orders. This is a further reason, in my opinion, why both the circuit court and this court had no jurisdiction in this case.

For these reasons I must dissent from an opinion which assumes jurisdiction in this case.

This is the short answer to the dissent’s argument that plaintiff has not sought to appeal the Board order to this court "nor offered any explanation why he has not done so.”

It is for this reason that the dissent is incorrect in suggesting that, because the insurer now wished to have the settlement agreement declared valid, the court had jurisdiction to hear this case. The insurer was a party to the Board proceeding, and is bound by it.

I do note, however, that plaintiff may now be foreclosed from bringing a proceeding under any other theory. See Gittlesohn v. City of Cannon Beach, 44 Or App 247 , 605 P2d 743 (1980); Dean v. Exotic Veneers, Inc., 271 Or 188 , 531 P2d 266 (1975).

See cases and authorities cited in Pike v. Allen International Ltd., 287 Or 55, 60, n. 3 , 597 P2d 804 (1979), as follows:

"* * * courts in other states construing the Uniform Declaratory Judgments Act have held the word 'person’ to include states, state agencies and state subdivisions. See, e.g., St. Paul Fire & Mar. Ins. Co. v. State, Dept. of Nat. Res., 25 Ohio Misc 26, 265 NE 2d 814, 817-18 (1970); City of Lincoln v. First Nat. Bank, 146 Neb 221, 19 NW 2d 156, 158 (1945); State v. General American Life Ins. Co., 132 Neb 520, 272 NW 555, 557-58 (1937). See also Anderson, Actions for Declaratory Judgments, 2d ed., 349, § 179 (1951), and Cabell et al v. Cottage Grove et al, 170 Or 256, 261 , 130 P2d 1013 (1943).”