Opinion
No. 15,129-L, CA 13805
Argued and submitted October 8, 1979
Affirmed November 26, 1979 Reconsideration denied March 6, 1980 Petition for review allowed April 22, 1980
Appeal from Circuit Court, Malheur County.
F. J. Yraguen, Judge.
Carl Burnham, Jr., Ontario, argued the cause for appellants. On the briefs were Cliff S. Bentz and Yturri, Rose Burnham, Ontario.
William A. McCurdy, Boise, Idaho, argued the cause for respondent. On the brief were Jeremiah A. Quane; Quane, Smith, Howard Hull; J. Burdette Pratt, Boise, and Henigson, Stunz, Fonda Pratt, Nyssa.
Before Joseph, Presiding Judge, and Lee and Richardson, Judges.
JOSEPH, P.J.
Affirmed.
This is a companion case to Ore-Ida Foods v. Gonzalez, 43 Or. App. 393, 602 P.2d 1132 (1979), and arises out of the death of Hilario Gonzalez while he was in the course and scope of his work as an employee of Ore-Ida. Plaintiffs are obligated to pay workers' compensation benefits to Donna Lee Burzota under ORS 656.226, but because she and the deceased were not married the plaintiffs cannot utilize the subrogation provisions of ORS 656.591 and 656.593. Plaintiffs instituted this action on a theory that defendant tortiously injured the employer by causing the death of its employee. The trial court sustained a demurrer, and plaintiffs appeal.
If plaintiffs' action is regarded as one for wrongful death, it is barred by the rule that there is no common law cause of action for death ( Richard v. Slate, 239 Or. 164, 396 P.2d 900 (1964); Goheen v. General Motors Corp., 263 Or. 145, 502 P.2d 223 (1972)), and they are not within the class of those who have a statutory action for wrongful death. Jones v. Jones, 270 Or. 869, 530 P.2d 34 (1974). If it is viewed as a negligence action arising out of a breach of a standard of care owed an employer by third parties the action is barred by the rule that an employer may not recover for injuries to an employee caused by the negligence of a third person, unless the injury was intentional. Snow v. West, 250 Or. 114, 440 P.2d 864 (1968); Wampler v. Palmerton, 250 Or. 65, 439 P.2d 601 (1968).
Affirmed.
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