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Maurmann v. Del Morrow COnstruction6/12/2002
Argued and submitted April 8, 2002.
Affirmed.
This dispute stems from two landslides in the Shadow Creek Estates subdivision in Salem that resulted in damage to property in both Shadow Creek and an adjacent subdivision. Cross-claim defendant North Santiam Paving, Inc., appeals from a judgment awarding cross-claim plaintiff Del Morrow Construction, Inc., indemnity for the amount Del Morrow paid to defend and settle claims made by two homeowners in the adjacent subdivision, as well as to defend a related claim by the City of Salem. North Santiam argues that, given an earlier jury determination that Del Morrow was itself comparatively negligent in causing the landslide-related damages, the trial court was, as a matter of law, barred from awarding Del Morrow indemnity. We conclude that, on this record, the jury's apportionment of comparative fault did not preclude the trial court from determining that Del Morrow was entitled to indemnity. Accordingly, we affirm.
The material facts are largely undisputed. Del Morrow, the developer of Shadow Creek Estates, contracted with North Santiam to engineer and construct the subdivision. In June 1997, North Santiam conducted some excavation on several of the lots in Shadow Creek, removing soil from an area downslope from an adjacent subdivision, Gibson Woods Court. In January 1998, the slope above the June 1997 excavation slid, resulting in damage to property owned by Richard and Kirsten Maurmann and David and Bonnie Arnold in Gibson Woods Court. In March 1999, a second landslide occurred in an area northwest of the first landslide. Both landslides required significant remediation work and, as a consequence of the necessary remediation, several undeveloped lots in Shadow Creek were rendered unmarketable. In addition, the landslides apparently damaged roadways and municipal facilities owned by the City of Salem.
Neighbors asserted claims against both North Santiam and Del Morrow to recover for the damage to their properties. Del Morrow filed a cross claim against North Santiam, alleging, inter alia, negligence, breach of contract, and common-law indemnity. Del Morrow's negligence and breach of contract claims both sought damages for 1
the decreased value of Del Morrow's own lots in Shadow Creek; and (2) the costs of litigating and satisfying neighbors' property damage claims. Del Morrow's common-law indemnity claim sought to recover all costs incurred in defending and satisfying neighbors' claims.
North Santiam responded by alleging several affirmative defenses, including comparative negligence and breach of contract. Both of those defenses were predicated on allegations that Del Morrow had itself been negligent, and had breached its contract with North Santiam, in three particulars:
"By failing to disclose to [defendant] geotechnical information regarding the area including, but not limited to, the Shannon & Wilson, 1978 report, and the Fujitani Hilts & Associates, 1990 report.
"By directing [defendant] to excavate and remove dirt contrary to the above referenced reports and geotechnical information.
"By failing to provide [defendant] with information known, or that should have reasonably shown have been known, by [plaintiff], that was relevant to [defendant] for the excavation activities to be perform."
Before trial, Del Morrow and North Santiam resolved their respective disputes with neighbors. Thus, at trial, the only remaining issues pertained to their competing cross claims and defenses. The case was tried to a jury. Before closing arguments, the parties agreed to have the court decide the indemnity issue. The jury subsequently retu
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