No. 21 June 11, 2015 327

IN THE SUPREME COURT OF THE

STATE OF OREGON

ECLECTIC INVESTMENT, LLC,

Plaintiff,

v.

Richard PATTERSON, et al.,

Defendant.

JACKSON COUNTY,

Cross-Claim Plaintiff-Appellant,

Petitioner on Review,

v.

Byron McALLISTER, Jr.,

dba Greater Crater Construction Company,

Cross-Claim Defendant-Respondent,

Respondent on Review.

(CC 07019L3; CA A150458; SC S062247)

En Banc

On Petitioner on Review’s petition for reconsideration 

filed April 2, 2015; considered and under advisement May 5,

2015.*

Michael Jewett, Michael Jewett, P.C., Ashland, filed the 

petition for reconsideration for petitioner on review.

No appearance contra.

WALTERS, J.

The petition for reconsideration is allowed. The former 

opinion is modified and adhered to as modified.

______________

* 357 Or 25, 346 P3d 468 (2015).
328 Eclectic Investment, LLC v. Patterson

Case Summary: The county, a defendant in a negli- gence action, sought common-law indemnity from a 

co-defendant. The trial court denied the common-law 

indemnity claim, and the Court of Appeals affirmed 

the trial court’s decision. On review, the Supreme Court 

affirmed the decision of the Court of Appeals and con- cluded that (1) In cases in which Oregon comparative 

negligence statutes apply, common-law indemnity is 

not necessary or justified; (2) Because the trial court 

applied the Oregon comparative negligence statutes to 

allocate fault among the parties in the underlying neg- ligence case, and because the jury found plaintiff to be 

more than 50 percent at fault, the county was neither 

potentially nor actually liable for the co-defendant’s con- duct; and (3) therefore, the trial court correctly denied 

the county’s common-law indemnity claim against the 

co-defendant. The county filed a petition for reconsider- ation. Held: (1) Although the Court recognizes that the legislature has enacted ORS 31.800(5), which provides 

for a right for contribution among joint tortfeasors who 

pay more than a proportional share of common liabil- ity, that statute does not change the Court’s earlier con- clusion; (2) A defendant does not have an independent 

common-law indemnity claim for attorney fees when 

the plaintiff’s underlying common-law indemnity claim 

for restitution is not viable; (3) The Court’s decision was 

not fundamentally unfair. The petition for reconsider- ation is allowed; the former opinion is modified and 

adhered to as modified.
Cite as 357 Or 327 (2015) 329

WALTERS, J.

Petitioner on review, Jackson County (the county), 

seeks reconsideration of our opinion in Eclectic Investment, 

LLC v. Patterson, 357 Or 25, 346 P3d 468 (2015), in which 

we affirmed the Court of Appeals and trial court decisions 

denying the county’s common-law indemnity claim. We 

concluded that, “[i]n cases in which the Oregon comparative negligence statutes apply and in which jurors allocate 

fault—and thereby responsibility—for payment of damages 

between tortfeasors, and each tortfeasor’s liability is several only, a judicially created means of allocating fault and 

responsibility is not necessary or justified.” Id. at 38. We 

allow the county’s request for reconsideration because, as 

the county correctly notes, we rested that conclusion on an 

analysis that the parties had not expressly identified. The 

county raises three points that it believes might affect our 

analysis. Therefore, it is appropriate to briefly address those 

points and explain why we adhere to our prior conclusion.1

The county first points out that we did not discuss 

ORS 31.800, and particularly subsection (5) of that statute. 

ORS 31.800 was enacted in 1971. Or Laws 1971, ch 668, § 1. 

It provides for a right of contribution among joint tortfeasors 

who pay more than a proportional share of a common liability. Like indemnity, contribution eases the common-law rule 

that makes tortfeasors jointly liable for the full amount of a 

plaintiff’s damages regardless of their respective degrees of 

fault. Eclectic, 357 Or at 36; W. Page Keeton, Contribution 

and Indemnity Among Tortfeasors, 1969 Ins Coun J 630, 630 

(1969). ORS 31.800(5) provides that the right of contribution “does not impair any right of indemnity under existing 

law” and that a tortfeasor that is entitled to indemnity is 

not entitled to contribution.2

 Thus, under ORS 31.800(5), a 

1 We have considered, but reject without discussion, the county’s other 

arguments.

2 In its entirety, ORS 31.800 provides: 

“(1) Except as otherwise provided in this section, where two or more persons become jointly or severally liable in tort for the same injury to person 

or property or for the same wrongful death, there is a right of contribution 

among them even though judgment has not been recovered against all or any 

of them. There is no right of contribution from a person who is not liable in 

tort to the claimant.
330 Eclectic Investment, LLC v. Patterson

tortfeasor that pays more than its proportional share of a 

common liability may seek either contribution or indemnity 

from a joint tortfeasor.

In 1995, however, the legislature made further 

changes to the common-law rule making tortfeasors jointly 

liable for the full amount of a plaintiff’s damages. Or Laws 

1995, ch 696, § 5, now codified at ORS 31.610. That statute now requires that a trier of fact compare the negligence 

of multiple tortfeasors and that damages be awarded “in 

accordance with the percentages of fault determined by 

the trier of fact under ORS 31.605.” ORS 31.610(2). Thus, 

in the circumstance presented here—in which ORS 31.610 

applies, tortfeasors are liable only for their own negligence, 

and a jury determines the relative fault and responsibility of 

each tortfeasor—a judicially created claim for common-law 

indemnity is unnecessary.

We understand that, when it enacted ORS 31.610, 

the legislature left ORS 31.800 intact. But we did not decide 

that, in enacting ORS 31.610, the legislature intended to 

abrogate all claims for common-law indemnity. Rather, we 

decided that, because claims for common-law indemnity 

originated with the courts, it was appropriate that this 

“(2) The right of contribution exists only in favor of a tortfeasor who has 

paid more than a proportional share of the common liability, and the total 

recovery of the tortfeasor is limited to the amount paid by the tortfeasor in 

excess of the proportional share. No tortfeasor is compelled to make contribution beyond the proportional share of the tortfeasor of the entire liability.

“(3) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the 

injury or wrongful death is not extinguished by the settlement nor in respect 

to any amount paid in a settlement which is in excess of what is reasonable.

“(4) A liability insurer, who by payment has discharged in full or in part 

the liability of a tortfeasor and has thereby discharged in full its obligation 

as insurer, is subrogated to the tortfeasor’s right of contribution to the extent 

of the amount it has paid in excess of the tortfeasor’s proportional share of 

the common liability. This subsection does not limit or impair any right of 

subrogation arising from any other relationship.

“(5) This section does not impair any right of indemnity under existing 

law. Where one tortfeasor is entitled to indemnity from another, the right of 

the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of 

the indemnity obligation.

“(6) This section shall not apply to breaches of trust or of other fiduciary 

obligation.”
Cite as 357 Or 327 (2015) 331

court determine whether, and in what instances, there is a 

remaining need for such claims. As we said in our original 

opinion, we were unable to

“respond to the parties’ request that we reconsider the principles that underlie [a common-law claim for indemnity] 

and determine whether a jury’s allocation of fault should 

be a factor in a court’s analysis without also considering 

the fact that the Oregon Legislative Assembly has created 

a system of comparative negligence that fully addresses the 

problem that common-law indemnity was crafted to solve.”

Eclectic, 357 Or at 38. For reasons that we explained, when 

ORS 31.610 applies, a common-law indemnity claim is inconsistent with that statutory scheme and is not justified. Id. 

We appreciate the county’s attention to ORS 31.800(5), but 

it does not change the conclusion that we reached.

Similarly, the county’s remonstrance that we should 

consider its claim for indemnity for attorney fees differently 

from an indemnity claim for damages is not persuasive. 

The county contends that a claim for attorney fees “always 

tracked along behind the main claim for damages restitution” but now should be given a life of its own. When we 

rendered our opinion in this case, we were fully cognizant 

that the county’s claim was so limited and noted that fact 

in our analysis. See id. at 27 (“Nevertheless, the county had 

incurred costs in defending against plaintiff’s claim, and it 

pursued its cross-claim for indemnity to collect those costs 

from the contractor.”); id. at 34 (“The county argues that, 

under Astoria, its negligence was merely passive and, therefore, the contractor ought to pay the fees and costs that the 

county incurred in defending against plaintiff’s negligence 

claim.”); id. at 38 n 9 (“We do not decide whether a prevailing 

defendant may be permitted to recover its costs of defense 

from another tortfeasor on a theory other than common-law 

indemnity.”). Even if the county is correct that a claim for 

common-law indemnity includes a claim for attorney fees, it 

is incorrect that a defendant has an independent claim for 

attorney fees when the plaintiff’s claim for restitution itself 

is not viable.

We also disagree with the county’s contention that 

our decision is fundamentally unfair to the county. The 
332 Eclectic Investment, LLC v. Patterson

undisputed facts reveal that the county investigated and 

observed the excavation at issue in this case during and 

after its completion and ultimately issued a permit approving the excavation without requiring the contractor to make 

any change to the steep slope. Those actions were significantly different from the city’s actions in Astoria v. Astoria 

& Columbia River R. Co., 67 Or 538, 548, 136 P 645 (1913),

the case on which the city relied for its indemnity claim. 

In Astoria, the city had issued its permit before the railroad began construction and city representatives had not 

observed or sanctioned the construction of the track after 

its completion. Id. at 548. Even if this case were governed by 

the legal principles followed in Astoria, we would affirm the 

decision of the trial court because of the different facts that 

this case involves.

The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified.