Union Carbide Corporation, a subsidiary of The Dow Chemical Company v. Christina Dearien (Decedent) and Thomas Dearien (Dependent)

No. 517 June 4, 2025 175 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Kevin J. LEE, Petitioner, v. DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Respondent. Department of Consumer and Business Services INS190008; A182238 Argued and submitted April 1, 2025. Kevin J. Lee argued the cause and filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge. HELLMAN, J. Affirmed. 176 Lee v. DCBS HELLMAN, J. Petitioner, appearing pro se, seeks judicial review of a final order of the Department of Consumer and Business Services (DCBS) that revoked his insurance licenses and assessed civil penalties. On judicial review, petitioner argues that the final order is not supported by substantial evidence. We affirm. “We review an agency’s order in a contested case for errors of law, ORS 183.482(8)(a), substantial evidence, ORS 183.482(8)(c), and substantial reason.” Dorn v. Teacher Standards and Practices Comm., 316 Or App 241, 243, 504 P3d 44 (2021). “Substantial evidence exists to support a find- ing of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482. “Substantial reason exists where the agency has articulated a rational connection between the facts and the legal conclu- sion that the agency draws from them.” Dorn, 316 Or App at 243 (internal quotation marks omitted). “Our review is restricted to the record.” Id. (citing ORS 183.482(7)); see also ORS 183.417(9) (defining “[t]he record in a contested case”). A detailed recitation of the facts would not benefit the bench, the bar, or the public. Petitioner held securities sales, insurance provider, and insurance consultant licenses in Oregon for several years. In 2017, the Federal Industry Regulatory Authority (FINRA) contacted petitioner to determine if he had violated any federal securities laws when he provided investment advice to his former neigh- bors. In 2018, petitioner filed a resident insurance license renewal application with the state and represented that he had not “been named or involved as a party in an adminis- trative proceeding, including FINRA sanction.” DCBS sub- sequently alleged that petitioner “act[ed] as a state invest- ment adviser in Oregon without a state investment license,” provided “misleading information” on his insurance license applications by not disclosing the FINRA investigation, and that he engaged in “fraudulent, coercive, or dishonest prac- tices.” At the contested hearing, the daughter of petitioner’s former neighbors, petitioner, and a DCBS financial enforce- ment officer testified, and the administrative law judge (ALJ) received into evidence numerous exhibits offered by Nonprecedential Memo Op: 341 Or App 175 (2025) 177 each party. The ALJ ruled in favor of DCBS and issued a proposed order. DCBS adopted the ALJ’s proposed order as the final order. We have reviewed each of petitioner’s 18 separate arguments concerning the final order and conclude that petitioner presents no basis to reverse. Many of petitioner’s arguments dispute DCBS’s interpretation of the facts, but we do not reweigh evidence on appeal. See Gaylord v. DMV, 283 Or App 811, 822, 391 P3d 900 (2017) (“When in a review role, a court does not review for the better evidence.”). Many of petitioner’s arguments also depend on his testimony— which DCBS found not credible—and we do not revisit cred- ibility on appeal. See id. (“A substantial evidence review does not entail or permit the reviewing tribunal to reweigh or to assess the credibility of the evidence that was presented to the fact-finding body.” (Internal quotation marks omitted.)) And petitioner’s arguments do not establish that DCBS committed any legal error in its analysis. In sum, substan- tial evidence supports DBCS’s findings of fact, and the order provides substantial reason for its conclusions. Petitioner has not demonstrated any legal error on DCBS’s part. Affirmed.

No. 24-ICA-269 – Union Carbide Corporation, a subsidiary of the Dow Chemical Company v. Christina Dearien (decedent) and Thomas Dearien (dependent) FILED June 4, 2025 WHITE, Judge, concurring: ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA I wholeheartedly concur with the majority’s opinion and its application of the doctrine of collateral estoppel espoused in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In the workers’ compensation system, a “claims administrator” is an insurance company employee who, whilst ostensibly applying West Virginia’s workers’ compensation laws and regulations to rule on a claimant’s claim, is also focused on protecting the interests of the insurance company and, indirectly, those of the claimant’s employer. The majority opinion deftly notes that a claims administrator “is not bound by the traditional rules operative to an adversary system” and does not issue decisions remotely on par with “a quasi-judicial determination of an administrative agency.” ___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 9). Hence, to put the majority’s ruling succinctly: a ruling, assessment, decision, or any other pronouncement by a claims administrator cannot form the basis for collateral estoppel under Miller. This Court recognizes that its authority is limited to what is expressly provided by the Legislature. See W. Va. Code § 51-11-4 (2024). In line with the Legislature’s limitations, the majority opinion constrains its application of Miller and, upon establishing that Miller’s collateral estoppel rule does not apply to claims examiner decisions and that the lower tribunal’s decision was correct, it ends its analysis. 1  What leaves me troubled, however, is that this is the second time in a year that collateral estoppel has arisen at the appellate level in the context of workers’ compensation rulings. It also is the second time in a year that application of the collateral estoppel doctrine has been rejected. In our ruling today, we rejected an employer’s attempt to use an adverse claims administrator’s ruling against a living claimant to later preclude the claim of a dependent seeking benefits for the work-related death of that claimant. In Ruble v. Rust-Oleum Corporation, 250 W. Va. 324, 902 S.E.2d 873 (2024), the Supreme Court of Appeals of West Virginia (“SCAWV”) found, under the collateral estoppel guidelines of Miller, that a tortfeasor in a lawsuit could not use an adverse ruling against a workers’ compensation claimant to subsequently preclude the lawsuit by the claimant against the tortfeasor for injuries the claimant sustained on the job. The SCAWV found that because a workers’ compensation claim uses legal standards and procedural rules that are “substantially different from those in a courtroom,” a final ruling by a workers’ compensation judge does not have preclusive effect in a lawsuit. Id. at 326, 902 S.E.2d at 875. I write separately to underscore that, in cases like the one at bar, where there has been an adverse ruling against a living claimant, that adverse ruling has no preclusive effect on a subsequent claim for death benefits by the deceased claimant’s dependents. West Virginia law is clear: an adverse workers’ compensation decision against a living claimant has no collateral estoppel effect, and no res judicata effect, on a later claim for dependent’s benefits arising from the claimant’s work-related death. None. There are two 2 independent and separate rights of recovery under the Workers’ Compensation Act, both based on the same injury or disease: one for the worker during his or her lifetime, and another for the worker’s dependents after his or her death. The parties in the claims are different, the parties are not in privity, and their statutory rights are different. Put simply, the actions of an injured worker who litigates a workers’ compensation claim while alive will have no preclusive effect on the rights of the worker’s dependent survivors, should the worker die as a result of his or her work-related injury or disease. This is not just my opinion. For eight-and-a-half decades, the Supreme Court of Appeals of West Virginia (“SCAWV”) has found that a claim for workers’ compensation disability benefits by a living claimant, and a claim for death benefits by a deceased claimant’s dependents, “are not the same, nor is a claim for the latter

Maryland Department of Health v. Jeffrey Boulden, et al., Nos. 534, 581, 582, 641, 643, 996 & 1291, September Term, 2024. Opinion by Graeff, J. CONSTRUCTIVE CIVIL CONTEMPT — STATUTORY SANCTIONS Where the court finds an individual to be incompetent to stand trial (“IST”) and dangerous, the Maryland Department of Health (the “Department”) is required, under Md. Code Ann., Criminal Procedure (“CP”) § 3-106(c)(4) (2024 Supp.), to admit the defendant to a designated health facility within ten business days of the commitment order. If the Department does not admit the defendant to a Department facility within that time period, the defendant can seek to compel compliance by filing an action for constructive civil contempt or an action for statutory sanctions under CP § 3-106(c)(4). Constructive civil contempt requires a finding, based on evidence, of a willful failure to comply with the court’s commitment order. In the Dorchester County case, the only evidence presented in support of the contempt petition was that the Department had taken action to alleviate the bed shortage in its facilities, but there were still not enough beds to comply with the court’s commitment order. Without evidence that the Department could have done more to comply with the order, the mens rea element of constructive civil contempt, i.e., willfulness, is not satisfied. Because the record does not support the finding that the Department willfully failed to comply with the Dorchester County commitment order, the court’s finding in this regard was clearly erroneous, and it abused its discretion in holding the Department in contempt. In addition to a contempt finding, a court can impose sanctions on the Department pursuant to CP § 3-106. To find a violation of CP § 3-106(c)(2), the court needs to determine only that the Department failed to admit the defendant to a designated health facility within the statutorily required ten-day period. Evidence that the Department could not comply with commitment orders due to the unavailability of beds does not categorically preclude sanctions under CP § 3-106(c)(4). If the court finds a failure to timely admit a defendant, the statute provides for the imposition of sanctions “reasonably designed to compel compliance.” Although the statute does not define the term “reasonably designed to compel compliance,” the legislative history makes clear that the intent of the General Assembly in enacting CP § 3-106(c)(4) was to impose a deadline for admission, with sanctions to enforce compliance. Given the increasing problem of a failure to timely admit defendants, it was reasonable for the courts to believe that large statutory sanctions would encourage the Department to explore all options to resolve this continued problem. That two of the defendants, Glenn D. Hawkins and Kennard Jacobi Goins, had been admitted to a Department facility prior to the sanctions hearing did not prohibit the court from imposing sanctions under CP § 3-106(c)(4). The statute does not contain any language stating that reimbursement or other sanctions cannot be imposed once the patient has been admitted to a Department facility. Construing the statute to limit sanctions, including reimbursement to detention centers, when the Department has already admitted a defendant to a facility prior to the sanctions hearing would add words to the statute and frustrate the legislature’s express intent to allow for reimbursement to the detention center for costs incurred in housing defendants that should be in a Department facility. In the Kent County case involving Jeffrey Boulden, and in the Baltimore County cases involving William Damond Lomax, Malik T. Jackson, Mr. Goins, Mr. Hawkins, and Steven R. Kauffman, the court did not abuse its discretion in its decision to impose sanctions. With respect to the amount of sanctions, however, we construe the statute to authorize the calculation of daily sanctions beginning on the 11th business day from the date of the commitment order. In the Baltimore County cases involving Mr. Lomax, Mr. Jackson, Mr. Goins, and Mr. Hawkins, the court did not calculate the daily sanctions beginning on the 11th business day. We reverse those orders and remand for a new calculation regarding the amount of sanctions. Circuit Court for Kent County Case Nos. C-14-CR-21-000044, C-14-CR-23-000050, C-14- CR-23-000146 Circuit Court for Baltimore County Case Nos. C-03-CR-24-000015, C-03-CR-24-000251 C-03-CR-23-002969, C-03-CR-23-003449 C-03-CR-23-003775 Circuit Court for Dorchester County Case No. C-09-CR-23-000286 REPORTED IN THE APPELLATE COURT OF MARYLAND Nos. 534, 581, 582, 641, 643, 996, 1291 September Term, 2