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Maurmann v. Del Morrow COnstruction6/12/2002
table distribution of responsibility" and that "there can be no all-encompassing rule," id. at 620, the court cited with approval the following observations by Prosser:
"' t is extremely difficult to state any general rule or principle as to when indemnity will be allowed and when it will not. It has been said that it is permitted only where the indemnitor has owed a duty of his own to the indemnitee; that it is based on a "great difference" in the gravity of the fault of the two tortfeasors; or that it rests upon a disproportion or difference in character of the duties owed by the two to the injured plaintiff. Probably none of these is the complete answer, and, as is so often the case in the law of torts, no one explanation can be found which will cover all of the cases. Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnify will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other. This may be because of the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct.'" Id. (quoting Prosser, The Law of Torts, 313 (4th ed 1971)).
Thus, in general, common-law indemnity is available where, "in justice," either the relationship of the parties or the quality of their respective conduct warrants that one of them should bear the full responsibility for joint liability to an injured third party. See General Ins. Co. v. P.S. Lord, 258 Or 332, 336-37, 482 P2d 709 (1971) (noting, for example, that indemnity is appropriate where one party is simply vicariously liable for the negligence of another, but indemnity is inappropriate where the negligence of two tortfeasors without any legal relationship to one another combines to cause injury to a third party). Accord ORS 18.440(5) ("This section [governing contribution among joint tortfeasors] does not impair any right of indemnity under existing law.").
Here, North Santiam does not dispute that, but for the jury's prior determination of comparative negligence, the evidence adduced at trial would have been sufficient to permit the trial court to award indemnity. In particular, North Santiam acknowledges that the negligence the jury ascribed to Del Morrow could properly be characterized as merely "passive." Nevertheless, North Santiam contends that in this procedural posture--viz., where the injured third parties had settled before trial and the only remaining claims were between the joint tortfeasors inter se--any finding of comparative negligence by the jury precluded indemnity. As support for that proposition, North Santiam invokes Scott v. Francis, 314 Or 329, 838 P2d 596 (1992), and Irwin Yacht Sales, Inc. v. Carver Boat Corp., 98 Or App 195, 778 P2d 982 (1989).
Before turning to Scott and Irwin Yacht Sales, it is useful to place North Santiam's position in a practical context. A hypothetical is illustrative: A and B, a developer and a contractor, work together on a project that causes landslides that, in turn, damage their neighbors' property. The neighbors sue both A and B for negligence, and proceed to trial against both defendants. At trial, the jury returns a special verdict apportioning the fault of the two defendants with respect to the causation of injury to the neighbors' property; that verdict fixes the parties' proportionate fault as 80 percent (A) and 20 percent (B). Later, B brings an indemnity action against A, seeking to recover the amounts it had to pay out to satisfy the neighbors' judgment and its costs of defense, and alleging that it was entitled to indemnity because its fa
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