Date: 06-12-2015

Case Style: Eclectic Investments, LLC v. Rihard Patterson

Case Number: SC S062247

Judge: Walters

Court: Supreme Court of Oregon on appeal from the Circuit Court, Jackson County

Plaintiff's Attorney:

Defendant's Attorney: Mike Jewett, Michael Jewett, P.C., Ashland, filed the
petition for reconsideration for petitioner on review.

Description: Petitioner on review, Jackson County (the county),
seeks reconsideration of our opinion in Eclectic Investment,
LLC v. Patterson, 357 Or 25, 346 P3d 468 (2015), in which
we affirmed the Court of Appeals and trial court decisions
denying the county’s common-law indemnity claim. We
concluded that, “[i]n cases in which the Oregon comparative
negligence statutes apply and in which jurors allocate
fault—and thereby responsibility—for payment of damages
between tortfeasors, and each tortfeasor’s liability is several
only, a judicially created means of allocating fault and
responsibility is not necessary or justified.” Id. at 38. We
allow the county’s request for reconsideration because, as
the county correctly notes, we rested that conclusion on an
analysis that the parties had not expressly identified. The
county raises three points that it believes might affect our
analysis. Therefore, it is appropriate to briefly address those
points and explain why we adhere to our prior conclusion.1
The county first points out that we did not discuss
ORS 31.800, and particularly subsection (5) of that statute.
ORS 31.800 was enacted in 1971. Or Laws 1971, ch 668, § 1.
It provides for a right of contribution among joint tortfeasors
who pay more than a proportional share of a common liability.
Like indemnity, contribution eases the common-law rule
that makes tortfeasors jointly liable for the full amount of a
plaintiff’s damages regardless of their respective degrees of
fault. Eclectic, 357 Or at 36; W. Page Keeton, Contribution
and Indemnity Among Tortfeasors, 1969 Ins Coun J 630, 630
(1969). ORS 31.800(5) provides that the right of contribution
“does not impair any right of indemnity under existing
law” and that a tortfeasor that is entitled to indemnity is
not entitled to contribution.2
Thus, under ORS 31.800(5), a
1 We have considered, but reject without discussion, the county’s other
arguments.
2 In its entirety, ORS 31.800 provides:
“(1) Except as otherwise provided in this section, where two or more persons
become jointly or severally liable in tort for the same injury to person
or property or for the same wrongful death, there is a right of contribution
among them even though judgment has not been recovered against all or any
of them. There is no right of contribution from a person who is not liable in
tort to the claimant.
330 Eclectic Investment, LLC v. Patterson
tortfeasor that pays more than its proportional share of a
common liability may seek either contribution or indemnity
from a joint tortfeasor.
In 1995, however, the legislature made further
changes to the common-law rule making tortfeasors jointly
liable for the full amount of a plaintiff’s damages. Or Laws
1995, ch 696, § 5, now codified at ORS 31.610. That statute
now requires that a trier of fact compare the negligence
of multiple tortfeasors and that damages be awarded “in
accordance with the percentages of fault determined by
the trier of fact under ORS 31.605.” ORS 31.610(2). Thus,
in the circumstance presented here—in which ORS 31.610
applies, tortfeasors are liable only for their own negligence,
and a jury determines the relative fault and responsibility of
each tortfeasor—a judicially created claim for common-law
indemnity is unnecessary.
We understand that, when it enacted ORS 31.610,
the legislature left ORS 31.800 intact. But we did not decide
that, in enacting ORS 31.610, the legislature intended to
abrogate all claims for common-law indemnity. Rather, we
decided that, because claims for common-law indemnity
originated with the courts, it was appropriate that this
“(2) The right of contribution exists only in favor of a tortfeasor who has
paid more than a proportional share of the common liability, and the total
recovery of the tortfeasor is limited to the amount paid by the tortfeasor in
excess of the proportional share. No tortfeasor is compelled to make contribution
beyond the proportional share of the tortfeasor of the entire liability.
“(3) A tortfeasor who enters into a settlement with a claimant is not entitled
to recover contribution from another tortfeasor whose liability for the
injury or wrongful death is not extinguished by the settlement nor in respect
to any amount paid in a settlement which is in excess of what is reasonable.
“(4) A liability insurer, who by payment has discharged in full or in part
the liability of a tortfeasor and has thereby discharged in full its obligation
as insurer, is subrogated to the tortfeasor’s right of contribution to the extent
of the amount it has paid in excess of the tortfeasor’s proportional share of
the common liability. This subsection does not limit or impair any right of
subrogation arising from any other relationship.
“(5) This section does not impair any right of indemnity under existing
law. Where one tortfeasor is entitled to indemnity from another, the right of
the indemnity obligee is for indemnity and not contribution, and the indemnity
obligor is not entitled to contribution from the obligee for any portion of
the indemnity obligation.
“(6) This section shall not apply to breaches of trust or of other fiduciary
obligation.”
Cite as 357 Or 327 (2015) 331
court determine whether, and in what instances, there is a
remaining need for such claims. As we said in our original
opinion, we were unable to
“respond to the parties’ request that we reconsider the principles
that underlie [a common-law claim for indemnity]
and determine whether a jury’s allocation of fault should
be a factor in a court’s analysis without also considering
the fact that the Oregon Legislative Assembly has created
a system of comparative negligence that fully addresses the
problem that common-law indemnity was crafted to solve.”
Eclectic, 357 Or at 38. For reasons that we explained, when
ORS 31.610 applies, a common-law indemnity claim is inconsistent
with that statutory scheme and is not justified. Id.
We appreciate the county’s attention to ORS 31.800(5), but
it does not change the conclusion that we reached.
Similarly, the county’s remonstrance that we should
consider its claim for indemnity for attorney fees differently
from an indemnity claim for damages is not persuasive.
The county contends that a claim for attorney fees “always
tracked along behind the main claim for damages restitution”
but now should be given a life of its own. When we
rendered our opinion in this case, we were fully cognizant
that the county’s claim was so limited and noted that fact
in our analysis. See id. at 27 (“Nevertheless, the county had
incurred costs in defending against plaintiff’s claim, and it
pursued its cross-claim for indemnity to collect those costs
from the contractor.”); id. at 34 (“The county argues that,
under Astoria, its negligence was merely passive and, therefore,
the contractor ought to pay the fees and costs that the
county incurred in defending against plaintiff’s negligence
claim.”); id. at 38 n 9 (“We do not decide whether a prevailing
defendant may be permitted to recover its costs of defense
from another tortfeasor on a theory other than common-law
indemnity.”). Even if the county is correct that a claim for
common-law indemnity includes a claim for attorney fees, it
is incorrect that a defendant has an independent claim for
attorney fees when the plaintiff’s claim for restitution itself
is not viable.
We also disagree with the county’s contention that
our decision is fundamentally unfair to the county. The
332 Eclectic Investment, LLC v. Patterson
undisputed facts reveal that the county investigated and
observed the excavation at issue in this case during and
after its completion and ultimately issued a permit approving
the excavation without requiring the contractor to make
any change to the steep slope. Those actions were significantly
different from the city’s actions in Astoria v. Astoria
& Columbia River R. Co., 67 Or 538, 548, 136 P 645 (1913),
the case on which the city relied for its indemnity claim.
In Astoria, the city had issued its permit before the railroad
began construction and city representatives had not
observed or sanctioned the construction of the track after
its completion. Id. at 548. Even if this case were governed by
the legal principles followed in Astoria, we would affirm the
decision of the trial court because of the different facts that
this case involves.

Outcome: The petition for reconsideration is allowed. The former
opinion is modified and adhered to as modified.

Plaintiff's Experts:

Defendant's Experts:

Comments: