Ore-Ida Foods, Inc. v. Indian Head Cattle Co.

JOSEPH, P.J. This is a companion case to Ore-Ida Foods v. Gonzalez, 43 Or App 393, 602 P2d 1132 (1979), and arises nt of the death of Hilario Gonzalez while he was in íe course and scope of his work as an employee of re-Ida. Plaintiffs are obligated to pay workers’ com-jnsation benefits to Donna Lee Burzota under ORS 56.226, but because she and the deceased were not iarried the plaintiffs cannot utilize the subrogation rovisions of ORS 656.591 and 656.593. Plaintiffs in-ituted this action on a theory that defendant torti-ísly injured the employer by causing the death of its nployee. The trial court sustained a demurrer, and aintiffs appeal. If plaintiffs’ action is regarded as one for wrongful ;ath, it is barred by the rule that there is no common w cause of action for death (Richard v. Slate, 239 Or 164, 396 P2d 900 (1964); Goheen v. General Motors Corp., 263 Or 145, 502 P2d 223 (1972)), and they are )t within the class of those who have a statutory action for wrongful death. Jones v. Jones, 270 Or 869, 530 P2d 34 (1974). If it is viewed as a negligence action arising out of a breach of a standard of care owed an aployer by third parties the action is barred by the lie that an employer may not recover for injuries to i employee caused by the negligence of a third person, unless the injury was intentional. Snow v. West, 250 Or 114, 440 P2d 864 (1968); Wampler v. Palmerton, 250 Or 65, 439 P2d 601 (1968). Affirmed.