UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

KENNETH TEEM, personal representative for 

Luby C. Teem, deceased,

Plaintiff, 

v.

CHANCE E. DOUBRAVSKY; and DENNIS 

E. BEEKS, dba DENNIS E. BEEKS 

TRUCKING,

Defendants.

Case No. 3:15-cv-00210-ST

FINDINGS AND 

RECOMMENDATION

STEWART, Magistrate Judge:

INTRODUCTION

In August 2013, defendant, Chance E. Doubravsky (“Doubravsky”), was driving a 

commercial log truck owned by defendant, Dennis E. Beeks, dba Dennis E. Beeks Trucking 

(“Beeks”), when the truck tipped, spilling logs into the roadway that struck the vehicle driven by 

Luby C. Teem (“Mrs. Teem”), killing her. Plaintiff, Kenneth Teem (“Teem”), the personal 

representative for the estate of his late wife, filed this wrongful death action under ORS 30.020 

against defendants in Multnomah County Circuit Court on October 16, 2014. Notice of Removal 

(docket #1), Ex. 1. 

1 – FINDINGS AND RECOMMENDATION

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On February 6, 2015, defendants timely removed the case to this court based on diversity 

jurisdiction under 28 USC § 1332 because defendants are both citizens of Washington, Mrs. 

Teem was a citizen of Oregon before her death,0 F

1 and Teem alleges damages in excess of 

$75,000.00. Notice of Removal, p. 3.1F

2

 

Teem has filed a Motion for Remand (docket #6), contending that 28 USC § 1445(c) 

precludes removal to federal court of civil actions arising under state workers’ compensation 

laws.2F

3

 For the reasons set forth below, Teem’s Motion to Remand should be denied. 

ALLEGATIONS

On behalf of Mrs. Teem’s beneficiaries, this action is brought “pursuant to ORS 30.020,” 

Oregon’s wrongful death statute. 3F

4

 Id, ¶ 3. On or about August 19, 2013, at the request of her

employer, Legacy Auto Group, Inc. (“Legacy”), Mrs. Teem was driving a 1999 Mercedes Benz 

320 sedan (“Mercedes”) from a dealership in La Grande, Oregon to another in Fife, Washington. 

Complaint, ¶ 8. She was driving westbound on Oregon Road 204. Id, ¶ 9. At the same time, 

Doubravsky was driving Beeks’s commercial log truck eastbound on Oregon Route 204 when 

the truck tipped over, causing the load of logs to break loose and cascade across the westbound 

1 “[T]he legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the 

decedent.” 28 USC § 1332(c)(2). 

2 Under 28 USC § 1446(b)(3), grounds for removal were created on January 29, 2015, by the state court’s dismissal 

of State of Oregon, less than 30 days before defendants removed the case. Notice of Removal, Ex. 2. Defendants 

received notice of the dismissal that same day. Id, p. 3. 

3 Teem also filed a Motion for Summary Judgment (docket #4), which the court stayed by Order dated February 12, 

2015 (docket #7).

4 ORS 30.020 provides as follows:

When the death of a person is caused by the wrongful act or omission of another, the personal 

representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, 

surviving parents and other individuals, if any, who under the law of intestate succession of the state of the 

decedent's domicile would be entitled to inherit the personal property of the decedent, . . . may maintain an 

action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, 

against the wrongdoer for an injury done by the same act or omission.

2 – FINDINGS AND RECOMMENDATION

 

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lane. Id. One or more logs impacted the Mercedes that Mrs. Teem was driving, and another log 

penetrated the windshield, entering the cabin above the steering wheel. Id. As a direct and 

foreseeable result of the accident, Mrs. Teem sustained multiple injuries that were ultimately 

fatal. Id, ¶ 11. At the time of the accident, Doubravsky was acting in the course and scope of his 

employment with Beeks. Id, ¶ 10. 

At that time and prior to her death, Mrs. Teem experienced conscious physical and 

mental pain and suffering, disability, and stress, resulting in non-economic damages not to 

exceed $1,500,000.00. Id, ¶ 11. Mrs. Teem’s estate has incurred necessary charges for medical 

services, burial services, and memorial services in an amount not to exceed $100,000.00 and lost 

wages and income in an amount not to exceed $100,000.00. Id, ¶¶ 12-13. In addition, Mrs. 

Teem’s spouse and children have suffered from the loss of society, support, companionship and 

services in an amount not to exceed $2,500,000.00. Id, ¶ 14. 

The Complaint alleges that Mrs. Teem’s death was caused in whole or substantial part by 

the negligence of Doubravsky (First Claim) and Beeks (Second Claim) on several grounds, 

including the failure to maintain a proper lookout, the failure to maintain proper control over the 

truck, traveling at an excessive speed, the failure to properly maintain and repair the brakes and 

brake linings on the truck, and the failure to train Doubravsky in operation of the truck. Id, 

¶¶ 16, 19–20. The Third Claim alleging negligence by the Oregon Department of Transportation

(id, ¶¶ 22–25) was dismissed in state court prior to removal. Notice of Removal, Ex. 2. 

STANDARDS

Civil actions filed in state court may be removed if the federal court has original 

jurisdiction over the action. 28 USC § 1441(a). The Ninth Circuit strictly and narrowly 

construes the removal statute and “any doubt about the right of removal requires resolution in 

3 – FINDINGS AND RECOMMENDATION

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favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F3d 1241, 1244 (9th Cir 2009), 

quoting Gaus v. Miles, Inc. 980 F2d 564, 566 (9th Cir 1992). The party seeking removal 

“‘always has the burden of establishing that removal is proper.’” Id, quoting Gaus, 980 F2d at 

566.

FINDINGS

Arguing that this action arises under the Oregon Workers’ Compensation Law, 

ORS 656.001–.855, Teem seeks remand to state court pursuant to 28 USC § 1445(c) which bars 

the removal of a state court action “arising under the workmen’s compensation laws of such 

State.” This court finds that this action does not allege claims “arising under” the Oregon 

Workers’ Compensation Law.

Because the removal statutes are intended to have uniform nationwide application, the 

issue of whether Teem’s claims “arise under” Oregon’s Workers’ Compensation Law is a matter 

of federal law. See Grubbs v. Gen. Elec. Credit Corp., 405 US 699, 705 (1972) (federal law 

governs construction of removal statutes). “‘[A] state could not prevent the removal of a tort 

case by labeling its common law of torts a workers’ compensation law.’” Arthur v. E.I. DuPont 

de Nemours & Co., 58 F3d 121, 125 (4th Cir 1995), quoting Spearman v. Exxon Coal USA, Inc., 

16 F3d 722, 724 (7th Cir 1994). “Likewise, a state ‘could not encourage removal of a tort case 

by labeling a claim arising under its workers’ compensation laws an independent common-law 

tort.’” Id, quoting Spearman, 16 F3d at 724. Instead, § 1445(c) “must be construed as setting up 

its own criteria, irrespective of local law, for determining in what instance suits,” may not be 

removed. Shamrock Oil & Gas Corp. v. Sheets, 313 US 100, 104 (1941) (citation omitted).

The Ninth Circuit has offered guidance on how to determine whether an action arises 

under a state’s workers’ compensation scheme for the purpose of original jurisdiction. U.S. Fid. 

4 – FINDINGS AND RECOMMENDATION

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& Guar. Co. v. Lee Invs. LLC, 641 F3d 1126, 1132 (9th Cir 2011) (a claim does not “arise under” 

a workers’ compensation law if it “did not involve an adjudication of the Employee’s workers’

compensation benefits”). However, the Ninth Circuit has not directly addressed when a removed 

action involves claims “arising under” a state workers’ compensation law in § 1445(c). 

Other circuits agree that “arising under” in § 1445(c) has the same meaning as “arising 

under” in 28 USC § 1331 governing federal question jurisdiction. Reed v. Heil Co., 206 F3d 

1055, 1059 (11th Cir 2000); Humphrey v. Sequentia, Inc., 58 F3d 1238, 1245–46 (8th Cir 1995); 

Jones v. Roadway Express, Inc., 931 F2d 1086, 1092 (5th Cir 1991). To determine whether a 

claim arises under federal law for the purpose of applying the federal jurisdictional statutes, 28 

USC §§ 1331 and 1441, the United States Supreme Court has stated that: 

a right or immunity created by the Constitution or laws of the United 

States must be an element, and an essential one, of the plaintiff’s cause of 

action. The right or immunity must be such that it will be supported if the 

Constitution or laws of the United States are given one construction or 

effect, and defeated if they receive another.

Gully v. First Nat’l Bank, 299 US 109, 112 (1936). 

District courts have adopted this framework to analyze claims allegedly “arising” under 

state workers’ compensation laws. Hanna v. Fleetguard, Inc., 900 F Supp 1110, 1116 (ND Iowa 

1995); see also Beaver v. NPC Int’l Inc., 451 F Supp2d 1196, 1200 (D Or 2006) (“a claim will 

arise under Oregon’s workers’ compensation laws only if it is necessary to interpret those laws to 

resolve the claim”). 

There is no dispute that Teem is entitled to recover workers’ compensation benefits 

through the insurance purchased by Mrs. Teem’s employer. However, the claims in this action 

do not seek to recover workers’ compensation benefits against Mrs. Teem’s employer, but seek 

5 – FINDINGS AND RECOMMENDATION

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damages from third parties. Pursuant to ORS 656.154, a worker or her beneficiary has the right 

to sue a third party for injuries caused to the worker during the course and scope of employment:

If the injury to a worker is due to the negligence or wrong of a third person 

not in the same employ, the injured worker, or if death results from the 

injury, the spouse, children or other dependents, as the case may be, may 

elect to seek a remedy against such third person.

If an injured worker or her beneficiary elects to sue a third person to recover damages,

then the employer’s workers’ compensation insurer has a lien against that cause of action for any 

benefits paid on behalf of the employer. ORS 656.576-.596.

Teem argues that his claims in this action arise under the Oregon Workers’ 

Compensation Law because ORS 656.154, which permits an injured worker “to seek a remedy 

against” a third party, provides the exclusive remedy for injured workers, However, Teem’s 

argument is premised on a misinterpretation of the Oregon Workers’ Compensation Law. 

In 1958 when Congress passed § 1445(c), “the ordinary meaning of ‘workmen’s 

compensation laws’ in 1958 was this: a statutorily created insurance system that allows 

employees to receive fixed benefits, without regard to fault, for work-related injuries.” Arthur, 

58 F3d at 125 (claim brought subject to a “deliberate intention” exception was not a claim 

“arising under” West Virginia’s workers’ compensation system). The provision relied on by 

Teem, ORS 656.154, is embedded in the Oregon Workers’ Compensation Law along with other 

provisions that provide employees with fixed benefits, without regard to fault, for work-related 

injuries. See, e.g., ORS 656.012(2), .017. Similar to these other provisions, ORS 656.154 has 

the objective of compensating employees for their physical injuries and lost wages from workrelated accidents. Yet, despite its objective and placement in Oregon’s statutory scheme, ORS 

656.154 “has none of the administrative, no-fault characteristics associated with a workers’ 

6 – FINDINGS AND RECOMMENDATION

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compensation claim.” Arthur, 58 F3d at 127. A claim against a third party would require a 

determination of fault, and the award would be based on that fault, instead of a fixed amount.

Contrary to Teem’s argument, ORS 656.154 does not create his claims, but specifically 

excludes his claims from the Oregon Workers’ Compensation Law. His claims were instead 

created by Oregon’s wrongful death statute, ORS 30.020, and common law negligence. Both 

types of claim existed long before the Oregon Workers’ Compensation Law was enacted in 

1965. ORS 656.001. A wrongful death statute in Oregon was first passed in 1862. Greist v. 

Phillips, 322 Or 281, 294 (1995). By 1862, a common law negligence right of action was well 

established. Because Teem’s claim has been compensable in Oregon since 1862, it could not 

have been created in 1965.

ORS 656.154 simply reiterates the employee’s right to obtain a remedy under tort law 

outside the workers’ compensation system. It does not change the character of a negligence 

claim under Oregon law or supplant it with a statutory claim. As explained by the Oregon 

Supreme Court, “the Workers’ Compensation Act does not give decedent or plaintiff a statutory 

right to bring a negligence-based wrongful death action.” Kilminster v. Day Mgmt. Co., 323 Or 

618, 626, 919 P2d 474, 479 (1996). There is no precedent to suggest that an employee would, by 

accepting compensation for her injuries from her employer, lose her right to bring a common law 

or statutory wrongful death action against the third party who caused her injuries. This 

interpretation of ORS 656.154 as recognizing the existence of an employee’s preexisting right 

against third parties does not render the section meaningless. 

Another district court has reached the same conclusion. In Bonney v. Canadian Nat’l 

R.R. Co., 100 FRD 388 (D Me 1983), the personal representative of an employee who was 

insured under the Maine Workers’ Compensation Act sued a third-party for wrongful death in 

7 – FINDINGS AND RECOMMENDATION

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state court. After the defendant removed the case to federal court, the plaintiff filed a motion to 

remand under § 1445(c). Denying that motion, the court reasoned as follows:

The Maine Workers’ Compensation Act, however, does not create 

the legal liability of a third-person for injury to an insured 

employee. This is necessarily so because under the workers’ 

compensation statute, an employee injured under circumstances 

creating in some person other than his or her employer a legal 

liability to pay damages in respect thereto does not, by claiming 

and accepting compensation from his or her employer, lose his or 

her right to bring a common law action against such other person. 

The employee loses such right only as to his or her employer.

Any suit for personal injuries or consequent wrongful death 

brought by an employee against a third-party tortfeasor is therefore 

brought under Maine’s substantive law governing tort-related 

causes of action. An action for wrongful death does not arise out 

of or under the Worker’s Compensation Act.

Id at 390 (citations omitted).

Just as in Bonney, the claims in this case for negligence against parties other than the 

employer should be excluded from the Oregon Workers’ Compensation Law. The provision 

allowing the claim, ORS 656.154, is not a “workmen’s compensation law” as intended by 

§ 1445(c), but instead reinforces and reiterates the common law. 

To support his argument, Teem points to ORS 656.018(7), which specifically refers to an 

“exclusive remedy”:

The exclusive remedy provisions and limitation on liability provisions of 

this chapter apply to all injuries and to diseases, symptom complexes or 

similar conditions of subject workers arising out of and in the course of 

employment whether or not they are determined to be compensable under 

this chapter.

Read in context, this provision does not assist Teem. It is the last subpart of 

ORS 656.018, which concerns the exclusive liability of the employer to the injured employee. 

Nearly every subpart refers specifically to the employer’s liability and has nothing to do with the 

8 – FINDINGS AND RECOMMENDATION

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liability of any third party. See Kilminster, 323 Or at 624, 919 P2d at 477 (the exclusive remedy 

provision of ORS 656.018 precludes a wrongful death claim against the employer).

Teem also cites ORS 656.012(2)(e), one of the legislative findings and policy goals 

behind the Oregon Workers’ Compensation Law, that it provides “the sole and exclusive source 

and means” for injured workers to “seek and qualify for remedies.” That statute does not require 

remand. As stated in ORS 656.012(1)(c), “[a]n exclusive, statutory system of compensation will

provide the best societal measure of those injuries that bear a sufficient relationship to

employment to merit incorporation of their costs into the stream of commerce.” By providing an 

exception in ORS 656.154 for claims against third parties, the Oregon Legislature decided that 

such claims did not “bear a sufficient relationship to employment” to merit inclusion in the 

“exclusive, statutory system.” 

Teem also argues that resolution of this action will require the court to examine and 

construe several provisions of the Oregon Workers’ Compensation Law. He first points to ORS 

656.578 which provides that:

If a worker of a noncomplying employer receives a compensable injury in 

the course of employment, or if a worker receives a compensable injury 

due to the negligence or wrong of a third person (other than those exempt 

from liability under ORS 656.018), entitling the worker under ORS 

656.154 to seek a remedy against such third person, such worker or, if 

death results from the injury, the other beneficiaries shall elect whether to 

recover damages from such employer or third person.

ORS 656.580(2) creates a lien against the employee’s cause of action against the 

employer or a third party. ORS 656.583(1) allows the employer’s workers’ compensation 

insurer to require the employee to exercise his right under ORS 656.578. Teem argues that 

Legacy’s workers’ compensation insurer (SAIF) has a lien against any and all non-economic 

damages awarded in this action. Although true, the determination of the amount of that lien is 

9 – FINDINGS AND RECOMMENDATION

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not the right or immunity referred to by the Supreme Court in Gully, 299 US at 112, as arising 

under federal law. 

Whether defendants were negligent and caused injury to Mrs. Teem turns on whether 

they owed a duty to Mrs. Teem and breached that duty in driving and maintaining the truck that 

caused the accident. Determination of the applicability ORS 656.578, ORS 656.580(2), and 

ORS 656.583(1) regarding the rights of SAIF are not essential to Teem’s claim. These sections 

create a right of action for SAIF to enforce its lien against any damages awarded in this case. 

But SAIF is not a party to this case, and those statutes will not be construed until that right is 

enforced.

Teem also seeks summary judgment that the alleged noneconomic damages are not 

subject to a cap under ORS 31.710(1) because his claims derive from the Oregon Workers’ 

Compensation Law. However adjudication of this motion will require construction of the phrase 

“subject to” used in ORS 31.710, not any provision of the Oregon Workers’ Compensation Law.

Accordingly, § 1445(c) does not bar removal to this court. 

RECOMMENDATION

For the reasons stated, Teem’s Motion to Remand (docket #6) should be DENIED.

SCHEDULING ORDER

These Findings and Recommendations will be referred to a district judge. Objections, if 

any, are due Tuesday, May 26, 2015. If no objections are filed, then the Findings and 

Recommendations will go under advisement on that date.

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10 – FINDINGS AND RECOMMENDATION

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If objections are filed, then a response is due within 14 days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendations will go under advisement.

DATED May 6, 2015.

s/ Janice M. Stewart

Janice M. Stewart

United States Magistrate Judge

11 – FINDINGS AND RECOMMENDATION

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