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Maurmann v. Del Morrow COnstruction6/12/2002
rned its special verdict on Del Morrow's negligence and breach of contract cross-claims. That verdict determined that: (1) both parties had been negligent; (2) both parties had materially breached their contractual obligations to each other; and (3) Del Morrow's damages were caused 80 percent by North Santiam's negligence and breach of contract and 20 percent by its own negligence and breach of contract.
The trial court did not consider and decide the indemnity claim concurrently with the jury's verdict. After the jury rendered its verdict, Del Morrow and North Pacific disputed the effect, if any, of that verdict--and, particularly, the jury's determination that Del Morrow had been comparatively negligent and had materially breached the contract--on Del Morrow's asserted entitlement to indemnity for the costs of defending and settling neighbors' claims. In particular, North Santiam argued that: (1) the court was bound by the jury's findings; (2) under Oregon law, indemnity is available only if the person against whom indemnity is sought is solely or fully responsible for the harm to the third party; (3) because the jury determined that Del Morrow was 20 percent at fault, North Santiam could not have been "solely" responsible; and (4) thus, the jury's determination that Del Morrow was 20 percent comparatively negligent precluded Del Morrow's entitlement to indemnity.
Del Morrow responded, inter alia, that the entitlement to common-law indemnity depends on whether the putative indemnitee's fault was "passive" or "secondary," as opposed to the putative indemnitor's "active" or "primary" fault. Del Morrow further asserted that the sort of qualitative assessment of relative responsibility that underlies common-law indemnity is different in kind from the jury's quantitative apportionment of comparative fault. Thus, Del Morrow contended, the jury's prior comparative fault calculus did not, and could not, preclude the trial court from determining that Del Morrow was entitled to indemnity either because its responsibility for the injury to the neighboring property was merely "secondary" while North Santiam's responsibility was "primary," or because its fault was merely "passive" while North Santiam's was "active."
Ultimately the trial court concluded that Del Morrow was entitled to indemnity and awarded damages for Del Morrow's costs of defending and settling neighbors' claims. This appeal ensued.
On appeal, the parties reprise and refine their arguments. As described below, we agree with Del Morrow that, on this record, the jury's determination of proportionate fault did not preclude an entitlement to common-law indemnity. Consequently, we affirm.
A party asserting an entitlement to common-law indemnity must prove three elements:
"In an action for indemnity, the claimant must plead and prove that (1) he has discharged a legal obligation owed to a third party; (2) the defendant was also liable to the third party; and (3) as between the claimant and the defendant, the obligation ought to be discharged by the latter. The last requirement means that, although the claimant must have been legally liable to the injured third party, his liability must have been 'secondary' or his fault merely 'passive,' while that of the defendant must have been 'active' or 'primary.'" Fulton Ins. v. White Motor Co., 261 Or 206, 210, 493 P2d 138 (1972) (citations omitted).
In Piehl v. Dalles General Hospital, 280 Or 613, 571 P2d 149 (1977), the court addressed the contours and content of the third, relative responsibility, component of common-law indemnity. After noting that the essential principle of common-law indemnity between joint tortfeasors is the "equi
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