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Maurmann v. Del Morrow COnstruction6/12/2002
r such a recovery.
Further, even if Scott could somehow be read as so conditioning any entitlement to indemnity under the "primary"/"secondary" responsibility formulation, nothing in Scott so limits recovery of indemnity under the "active"/"passive" fault formulation. As noted, in Scott, we concluded that there could be no recovery under the "active"/"passive" formulation because "the nature of the two lawyers' negligence was the same." 100 Or App at 397. Here, in contrast, North Santiam does not--and cannot plausibly--contend that the nature of the parties' negligence that resulted in the damage to the neighboring property "was the same." Indeed, as noted, North Santiam does not dispute that Del Morrow adduced legally sufficient proof that its fault was merely "passive," while North Santiam was "actively" at fault. See ___ Or App at ___ n 5 (slip op at 7 n 5). Thus, whatever Scott's implications for recovery of indemnity under the "primary"/"secondary" responsibility formulation, the jury's imputation of some comparative fault to Del Morrow did not preclude Del Morrow's ability to recover indemnity under the alternative "active"/"passive" fault formulation.
North Santiam's reliance on Irwin Yacht Sales is similarly misplaced. Indeed, Irwin Yacht Sales confirms the propriety of the trial court's award of indemnity in this case. In Irwin Yacht Sales, the plaintiff, a retailer, had sold a consumer a boat designed and manufactured by the defendant. The consumer was injured when an exhaust hose connection on the boat's engine failed. The consumer sued the retailer and the manufacturer, alleging theories of negligence and strict liability. Ultimately, the jury in that action returned a special verdict awarding the consumer damages and fixing the parties' proportionate "fault" as consumer (15 percent), retailer (40 percent), and manufacturer (45 percent). That verdict did not specify whether the defendants' liability was based on negligence or strict liability.
Thereafter, the retailer filed an action seeking indemnity from the manufacturer. The trial court dismissed the retailer's indemnity claim, "holding that the prior action had decided the relative liability of the two parties." Irwin Yacht Sales, 98 Or App at 197. We reversed. In so holding, we first noted that the jury's apportionment of fault in the prior action
"did not determine whether plaintiff's [the retailer's] fault was active or passive. That issue was not presented to the jury. A finding that plaintiff was to some degree at fault is not fatal to plaintiff's indemnity claim here; it is, in fact, necessary to it, because the indemnitee is not entitled to indemnity unless it is liable to the injured third party." Id. at 198.
We further rejected the defendant manufacturer's argument that the jury's allegation of fault in the prior action was, necessarily, a determination that the retailer had been "actively" negligent. We noted that, from the jury's special interrogatory responses in the prior action, it was impossible to determine whether the jury's determination of "fault" was based on negligence or on strict liability and, thus, "even if a jury's finding of negligence precludes an indemnity claim, the jury's verdict here would not do so, because it does not tell us the basis of recovery." Id. at 199.
Finally, we emphasized, that, in all events, a mere unadorned prior determination of "negligence" could not, without more, preclude recovery of indemnity:
"In any case, a party may be indemnified for liability arising from its own passive negligence * * *. Therefore, even if the jury here had found plaintiff to be negligent for failing to inspect the boat, that would not
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