dissenting.
The foundation of the workers’ compensation system is a legislatively-imposed bargain: Employers are liable without fault for all work-related injuries to their employees; in *305return, complying employers are insulated from all other liability for those injuries. ORS 656.017; ORS 656.018.1 The majority creates a loophole that eviscerates the bargain. I therefore dissent.
Defendant is a complying employer. It agreed to purchase and “maintain comprehensive bodily injury and property damage insurance (naming [plaintiff] as an additional insured), including bodily injury and property damage caused by the ownership, use or operation of” defendant’s elevators. As applied to the claim of a non-employee, the agreement is unexceptional, and defendant should be liable for any damages that result from its failure to carry out its promise. As applied to the claim of one of defendant’s employees who is injured while working, however, the agreement would make defendant liable for a compensable injury beyond its liability for workers’ compensation benefits. Accordingly, to that extent the agreement is “void” under ORS 656.018(l)(c).
Partly because of the way that the parties argued the case, much of the majority’s opinion deals with tangential issues. The question is not whether an agreement to provide insurance is identical to an indemnity agreement or how to measure the damages if defendant’s failure to purchase insurance results in damage to plaintiff. The question is whether the agreement, as it applies in this case, subjects defendant to financial responsibility for an injury to its employee beyond its responsibility for his compensation benefits. If it does, it is void to that extent.
Defendant agreed to buy insurance to protect plaintiff from liability to third parties. If the policy had excluded employee claims, the insurer’s risk would have been lower and so, presumably, would have been the premium that defendant *306would have paid. Thus, because the agreement required that the insurance cover employees injured while working, part of defendant’s cost of complying with the contract would have been attributable to the risk of on-the-job employee injuries. Defendant, however, already had workers’ compensation coverage. The agreement with plaintiff effectively would have imposed an extra cost for compensable injuries. Yet defendant’s compliance with ORS 656.017 is supposed to be “exclusive and in place of all other liability arising out of compensable injuries to the subject workersf.]” ORS 656.018(l)(a).
In short, defendant’s agreement with plaintiff imposed a liability on defendant that the law did not permit it to accept. The fact that the agreement that plaintiff seeks to enforce is one to procure insurance rather than to indemnify is irrelevant. Defendant’s liability for its employees’ compensable injuries is limited to the cost of complying with ORS 656.017, and no agreement may increase that liability by even a penny or a peppercorn. It does not matter whether the increase is the cost of buying insurance for a third party, damages for failing to purchase that insurance, or any other kind. That is how the legislature has chosen to protect the bargain that is at the heart of the compensation system. The majority fails to enforce the legislature’s decision and thereby undercuts the entire system.
I dissent.
Joseph, C. J., and Newman and Edmonds, JJ., join in this dissent.ORS 656.018(1) provides, in pertinent part:
“(a) The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of compensable injuries to the subject workers, the workers’ beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such injuries or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such injuries, except as specifically provided otherwise in ORS 656.001 to 656.794.
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“(c) * * * [A]ll agreements or warranties contrary to the provisions of paragraph (a) of this subsection entered into after July 19,1977, are void.”