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Maurmann v. Del Morrow COnstruction6/12/2002
ital * * *. The dissent states that indemnity is not permitted unless the parties' liability to the injured party is 'qualitatively different.' 100 Or App at 399 [Warren, J., dissenting]. Although that simple rule would be easier to apply, the Oregon cases do not appear to bear it out. It not only ignores the primary-secondary responsibility analysis * * *, it ignores the statement of the rule in Fulton Ins. v. White Motor Corp., * * * and its expression in Piehl, and also what the court said in General Ins. Co. v. P. S. Lord.
"* * * * *
"Here, as between Jackson and [the plaintiff client], Lopez admitted that getting the complaint filed within the time permitted was solely his responsibility. Given that evidence, a jury could reasonably find that, even though both attorneys were negligent as to [the client] and that the nature of their negligence was the same, Lopez, as between the two attorneys, had assumed full responsibility for getting the complaint timely filed. Accordingly, a jury could reasonably find that Lopez was primarily responsible for [the client's] damage, that Jackson was secondarily responsible for it[,] and that an equitable distribution of responsibility requires that all of the damage to [the client] should be borne by Lopez." 100 Or App at 397-98 (citations omitted; emphasis in original).
The Supreme Court affirmed our analysis and holding:
"A jury could find that Jackson's failure to timely file stemmed solely from his reliance on Lopez's misrepresentation that there was no time pressure for filing the claim. A person who is induced to act as a result of another's misrepresentation, and thereby becomes liable to a third person, is not necessarily in equal fault with the person who made the misrepresentation. Joint liability does not necessarily mean equal fault. Although Jackson and Lopez were liable to plaintiff, a jury could find that Lopez, as a result of his misrepresentation, was primarily responsible for the tort and should therefore indemnify Jackson." 314 Or at 334 (emphasis in original).
North Santiam seizes on our observation that Lopez had admitted that the timely filing of the complaint was "solely his responsibility" and the Supreme Court's parallel observation that "Jackson's failure timely to file stemmed solely from his reliance on Lopez's misrepresentation." North Santiam contends that those references signify that, where the only issue is the fault of the putative indemnitee and putative indemnitor "in relation to each other," and not "with respect to a third party," there can be no recovery of indemnity unless the putative indemnitor was "solely" at fault as between the parties inter se. By extension, North Santiam reasons that, because the only two parties remaining before the jury at the time it rendered its apportionment finding were North Santiam and Del Morrow, the jury's determination in that regard was necessarily one of the parties' fault inter se--and, because the jury did not determine North Santiam to be "solely" at fault, Del Morrow cannot recovery indemnity.
Scott does not bear that construction. Nothing in Scott purports to equate "primary" responsibility with "sole" responsibility. Rather, our opinion, and the Supreme Court's affirmance, emphasized the broadly equitable underpinnings of common-law indemnity as expressed, variously, in Piehl and Fulton Ins. Thus, the fact that we and the Supreme Court pointed to Lopez's explicit assumption of sole responsibility for the filing of the complaint as evidence permitting the recovery of indemnity under the "primary"/"secondary" responsibility formulation does not mean that the putative indemnitor's "sole" responsibility is the sine qua non fo
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