No. 215 April 10, 2024 753

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Erika L. PIERCE, 

Personal Representative of 

the Estate of Patricia Ann Stout, Deceased,

Plaintiff-Appellant,

v.

BEST WESTERN INTERNATIONAL, INC., 

a foreign corporation, 

and BWI Licensing, INC.,

a foreign corporation,

Defendants,

and

CONNOR ENTERPRISES, INC., 

dba New Oregon, Inc., an Oregon corporation,

Defendant-Respondent.

Multnomah County Circuit Court

21CV14212; A177997

Kathleen M. Dailey, Judge.

Argued September 20, 2023.

Travis Eiva argued the cause and filed the briefs for 

appellant.

Rebecca A. Watkins argued the cause for respondent. 

Also on the brief were Christine R. Olson and SBH Legal.

Before Shorr, Presiding Judge, Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Affirmed.
754 Pierce v. Best Western Int.
Cite as 331 Or App 753 (2024) 755

MOONEY, J.

Plaintiff appeals from a limited judgment dismissing defendant Connor Enterprises, Inc., from this matter, 

following an opinion and order granting defendant’s motion 

to dismiss pursuant to ORCP 21 A.1

 Plaintiff asserts that 

the trial court erred in concluding that the action against 

defendant was barred by the workers’ compensation statutes, because such an application of the law leaves plaintiff without a remedy and thus violates Article I, section 10, 

of the Oregon Constitution. We conclude that this issue is 

resolved by controlling Oregon Supreme Court case law, and 

we therefore affirm.

The relevant facts are procedural and undisputed. 

Plaintiff is the personal representative of her deceased 

mother’s estate. The deceased, Stout, was employed by 

defendant, and suffered a fatal on-the-job accident in 2019. 

Plaintiff brought an action against defendant for negligence, Employer’s Liability Law claims, and premise liability, asserting that Stout’s three adult children suffered 

profound injuries from the loss of their mother’s society and 

companionship upon her death.2

Defendant filed a motion to dismiss for lack of jurisdiction, arguing that the action was barred by statutes 

making workers’ compensation the exclusive remedy for 

such claims, and which do not name adult, non-dependent 

children as beneficiaries. Plaintiff opposed the motion to 

dismiss, arguing that the workers’ compensation exclusivity statute is unconstitutional as applied to this situation, 

because it deprived Stout’s children of a remedy for their 

loss. The trial court granted defendant’s motion and issued 

a limited judgment dismissing defendant from the action. 

On appeal, the parties renew the same arguments they 

raised below.

1 Connor Enterprises, Inc., doing business as New Oregon, Inc., is the only 

defendant in this appeal. Other defendants were named in the initial complaint 

who were not dismissed from the action in the same order and limited judgment. 

Therefore our use of “defendant” in this opinion refers only to Connor Enterprises.

2 The complaint alleged additional damages, including for Stout’s pain and 

suffering for the time between the accident and her death; necessary medical 

expenses for the same period; lost earnings; and funeral expenses. The appeal 

before us is limited to arguments concerning the adult children’s claims.
756 Pierce v. Best Western Int.

We review a trial court’s ruling on a motion to dismiss under ORCP 21 for errors of law. Strizver v. Wilsey, 210 

Or App 33, 35, 150 P3d 10 (2006), rev den, 342 Or 474 (2007) 

(citing Granewich v. Harding, 329 Or 47, 51, 985 P2d 788 

(1999)). “We assume the truth of all allegations in the pleading and view the allegations, as well as all reasonable inferences, in the light most favorable to the nonmoving party.” 

Id. We review the constitutionality of a statute as a matter 

of law. See generally, Kilminster v. Day Management Corp., 

323 Or 618, 623-28, 919 P2d 474 (1996) (assessing the constitutionality of a provision of the Workers’ Compensation Act).

ORS 656.018 provides that the Workers’ 

Compensation Act is “exclusive and in place of all other liability” arising out of workplace injuries or similar conditions 

sustained by subject workers in the course of employment, 

and that the rights given under the Act are “in lieu of any 

remedies [the worker and beneficiaries] might otherwise 

have” for such injuries. ORS 656.018(1)(a), (2). That “exclusive remedy” statute has been summarized to mean that 

“[a] worker who is injured in the course and scope of employment is entitled to receive, from the worker’s employer, only 

the remedies provided for in the Act.” Kilminster, 323 Or at 

624. The Workers’ Compensation Act further provides that, 

in the event of a worker’s death, an employer is responsible for disposition of the body and funeral expenses, and 

that monthly benefits are only available to specific beneficiaries, including a surviving spouse, minor children until 

they reach the age of 19, and some other limited dependents. 

ORS 656.204.

The parties agree that Stout’s children in this matter were not eligible beneficiaries under ORS 656.204, and 

that ORS 656.018 applies to the circumstances, as defendant 

was an employer covered by the Workers’ Compensation Act 

and Stout was injured in the course of her employment. 

Plaintiff argues, however, that ORS 656.018 is unconstitutional as applied to this situation because it operates to 

deprive Stout’s children of a remedy, contrary to Article I, 

section 10, of the Oregon Constitution, which guarantees 

that “every man shall have remedy by due course of law for 
Cite as 331 Or App 753 (2024) 757

injury done him in his person, property, or reputation.” Or 

Const, Art I, § 10.

The Supreme Court has addressed precisely this 

issue in two previous cases, Kilmister and Juarez v. Windsor 

Rock Products, Inc., 341 Or 160, 144 P3d 211 (2006). In 

Kilmister, the court emphasized that “[t]he Article I, section 10, remedy guarantee is implicated only if a person 

suffers injury to person, property, or reputation.” 323 Or 

at 626. The court concluded that the parents of a deceased 

worker had not suffered a “legally cognizable injury to their 

person, property, or reputation” and therefore, application 

of ORS 656.018 to bar their wrongful death action did not 

violate Article I, section 10. Id. at 627. Similarly, in Juarez, 

the court focused on the question of whether “the remedy 

clause protect[s] a claim for ‘loss of society, companionship, 

guidance, emotional support, services and financial assistance,’ brought by a parent and adult children” of a deceased 

worker; the court concluded that it did not. 341 Or at 165. 

The court explained that the claimants in that case, the 

mother and adult children of the worker, had not alleged an 

injury to their persons or reputations, and had not alleged 

that they possessed any property rights in the decedent that 

the defendant’s conduct had infringed. Id. at 169-73.

Plaintiff asserts that Kilminster and Juarez should 

be viewed with a “grain of salt” in light of the Supreme 

Court’s later cases that changed and expanded the method 

for assessing Article I, section 10, challenges, most significantly Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016). 

In Horton, the court considered the constitutionality of the 

damages limit in the Tort Claims Act and whether those 

limits violated the remedy clause. 359 Or at 171. The court 

clarified that Article I, section 10, does not protect only those 

causes of action that pre-existed the constitution’s adoption, 

and it established a new test for assessing the validity of 

legislative limitations on available remedies. Id. at 219-20. 

In doing so, the court explicitly overturned a previous case, 

Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 

(2001). Horton, 359 at 187-88. Plaintiff asserts that Horton

thus calls into question all pre-Horton remedy clause cases, 
758 Pierce v. Best Western Int.

which requires us to “consider whether the newly articulated test causes older cases to be overruled sub silentio.”

However, the court in Horton explicitly limited its 

holding to overruling Smothers and reaffirmed the body of 

its remedy clause cases:

“Given the cases that preceded and were contemporaneous with the adoption of Oregon’s remedy clause cases, 

we cannot say that our decisions, with the exception of 

Smothers, find no support in the text and history of that 

provision and should be overruled. In reaching that conclusion, we need not decide how we would interpret Oregon’s 

remedy clause if we were considering it for the first time. 

Rather, for over 100 years, this court has debated the 

meaning of the clause, the latitude it gives the legislature, 

and the rights it protects. Distilled from that debate are 

a series of decisions that evolved as the legislation they 

considered evolved. We may not toss that considered body 

of decisions aside, as defendant urges[.] * ** Although we 

overrule Smothers, we reaffirm our remedy clause decisions 

that preceded Smothers, including the cases that Smothers

disavowed.”

Id. at 218. Kilminster preceded Smothers. Additionally, in 

its extensive discussion of the remedy clause case law in 

Horton, the court noted the holding from Juarez on two occasions, neither of which appeared to question the conclusions 

found within. Id. at 180, 203.

Therefore, we conclude that we are bound by 

Kilminster and Juarez. Similar to those cases, plaintiff 

has alleged that defendant’s action deprived Stout’s adult 

children of the “society and companionship” of Stout. As 

the Supreme Court stated in Juarez, “[w]e do not doubt the 

importance of that loss to [the children], but it is not a loss of 

any ** * interest for which Article I, section 10, guarantees 

a remedy.” 341 Or at 173. Because the court has conclusively 

held that this sort of action does not implicate Article I, section 10, we conclude that the trial court did not err in granting defendant’s motion to dismiss.

Affirmed.