stating that “if the Workmen's Compensation Board had allowed plaintiff’s claim and had made an award of compensation ... plaintiff would clearly have been barred from filing the present action”
How later courts described this case
- stating that “if the Workmen's Compensation Board had allowed plaintiff’s claim and had made an award of compensation ... plaintiff would clearly have been barred from filing the present action”
- "[T]he doctrine of election of remedies does not become conclusive upon the receipt of any benefit by the plaintiff or the suffering of any detriment by the defendant, but only where plaintiff has been benefitted by being 'unjustly enriched' or by acquiring some 'unfair advantage' over defendant or when defendant has been actually misled by plaintiff's conduct or has suffered detriment in reliance upon or as the result of such conduct so as to involve an inequitable result.... [T]he trend of decisions [is] to limit the doctrine of election of remedies so as not to become an 'instrument of injustice,' and so as to become an application of the doctrine of estoppel." (emphasis in original; citations omitted)
Written by the judges who cited it.
The opinion
McALLISTER, J.,
concurring.
I concur in the result in this case, but I am unable to understand the need for the majority’s lengthy discussion of the doctrine of election of remedies. In my opinion it is quite clear that this case involves no problem of election. As we said in Bandy v. Norris, Beggs & Simpson, 222 Or 1, 19 , 342 P2d 839 , 351 P2d 445 (1960):
_ “* * ® Further, the matter of election of remedies is not involved here, since plaintiff, if she *50 accepted the benefits of the Workmen’s Compensation Law, was without any other remedy * * *.”
Similarly, if plaintiff in this case was an employee at the time of the accident, or if that question has been foreclosed by his acceptance of compensation benefits, compensation is his only remedy. ORS 656.018(2). The doctrine of election of remedies only applies when a party has more than one remedy actually available. Ladd v. General Insurance Co., 236 Or 260, 264-265 , 387 P2d 572 (1964).
In Bandy we held that acceptance of a compensation award established the fact that plaintiff was a covered employee. In this case plaintiff has accepted funds from the Compensation Department, and Bandy would control were it not for the intervening enactment of ORS 656.289(4). At the time Bandy was decided the Compensation Act contained no provision for payment of compensation without a determination that a claimant was a covered employee. ORS 656.289 (4), however, applies to cases in which the compensability of the claim is in dispute. Its procedures may be invoked without a determination that a claimant is in fact entitled to an award. Bandy , therefore, does not control; we must look to the agreement itself to determine whether a settlement under ORS 656.289 (4) forecloses any issue of fact.
The statute authorizes “such disposition of the claim as is considered reasonable.” That disposition in this case was embodied in a “stipulation” which expressly provided that neither party made any admission on the question of employment status. Moreover, plaintiff’s claim for compensation was to remain in a “denied” status. From the terms of the stipulation it seems quite clear that plaintiff and the Compensation *51 Department did not intend any determination that plaintiff’s claim was a compensable one.
For much the same reasons, plaintiff is not estopped to claim that he was not an employee at the time of the accident. The stipulation clearly left that question open. Nothing in the terms of the stipulation, or in the Board’s order approving the settlement, could have led defendants to believe plaintiff had agreed to forego his tort remedies. Nor is there anything in the record to indicate that defendants have in any way changed their position or suffered any detriment in reliance on plaintiff’s participation in the settlement agreement. Two of the essential elements of an estoppel are missing. Donahoe v. Eugene Planing Mill, 252 Or 543 , 450 P2d 762 (1969).
For these reasons, I agree that plaintiff is not barred from prosecuting this action.