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Maurmann v. Del Morrow COnstruction6/12/2002
ult was only "passive" or "secondary," while A's fault was "active" or "primary." Does the jury's apportionment of comparative fault in the first proceeding preclude B from recovering indemnity in the second proceeding?
The answer--as North Santiam concedes--is "no." See Irwin Yacht Sales, 98 Or App at 199. That is, as North Santiam acknowledges, where the litigation proceeds in two steps, with the first stage being an action by a third party against two co-defendants, which results in a jury determination of the two defendants' proportionate fault, and the second stage being the prosecution of an indemnity claim by one defendant against the other, the apportionment of fault in the first stage does not preclude the ability to obtain indemnity in the second. Id.
North Santiam asserts, nevertheless, that this case is different from the hypothetical because, by the time the jury in this case apportioned the parties' fault, the claims by the third parties (the neighbors) against North Santiam and Del Morrow had dropped out by way of settlement. However, North Santiam does not plausibly dispute that, in deciding Del Morrow's negligence and breach of contract claims against North Santiam, and in apportioning fault with respect to those claims, the jury in this case performed exactly the same function and resolved the same questions that it would have resolved if the neighbors were still in the case--viz., deciding North Santiam's and Del Morrow's proportionate fault with respect to causation of injury to neighbors' property. Thus, while conceding that the jury's determination of proportionate fault would not preclude indemnity in the hypothetical, North Santiam contends that the same determination precludes indemnity in this case. North Santiam does not seriously dispute that that result is, at least practically, incongruous. Nevertheless, North Santiam contends that Scott and Irwin Yacht Sales compel that result as a matter of law. We disagree.
In Scott, two lawyers, Lopez and Jackson, represented a common client in a medical malpractice action. During the course of that representation, Lopez told Jackson that there was no time pressure for filing the claim, and Jackson relied upon that representation. As a result, the client's claim was not timely filed, and the client sued both attorneys for malpractice. Before trial, the plaintiff settled her claim for $65,000, with Lopez paying $50,000 and Jackson paying $15,000. Jackson then sought indemnity, arguing, variously, that his fault was merely "passive" while Lopez's was "active" or that Lopez's responsibility was "primary," while his was merely "secondary." The trial court granted Lopez's motion for a directed verdict, concluding that the evidence was legally insufficient to support recovery of indemnity under either the "primary"/"secondary" or "active"/"passive" theories of recovery.
On appeal, we reversed in part. We concluded that the trial court properly determined that Jackson could not recover common-law indemnity under the "active"/"passive" fault formulation: "Because the nature of the two lawyers' negligence [viz., failing to timely file the complaint] was the same, one cannot be said to have been active and the other passive." Scott, 100 Or App at 397. However, we further concluded that there was evidence from which the jury could have concluded that Jackson was entitled to recovery indemnity under the "primary"/"secondary" responsibility formulation:
"Although we confess some uncertainty as to the application or breadth of the primary versus secondary responsibility test, the court appears to have stated it more generally as 'the equitable distribution of responsibility.' Piehl v. Dalles General Hosp
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