Tort Actions

ORS 31.800
Right of contribution among joint tortfeasors

  • limitations
  • subrogation of insurer
  • effect on indemnity right

(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.

(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. [Formerly 18.440]

Notes of Decisions

Statute granting the right of contribution among joint tortfeasors is not retroactive and therefore no joint tortfeasor has a right to contribution unless the tort for which contribution is sought was committed on or after the effective date of the statute. Coos-Curry Elec. v. Curry County, 26 Or App 645, 554 P2d 601 (1976)

In contribution suit, third party defendant is liable to original defendant-third party plaintiff for portion of total liability only if original plaintiff could have recovered against third party defendant. Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980)

Where party had been found not liable to original plaintiff by virtue of summary judgment in separate lawsuit, there was no cause of action for contribution under this section. Blackledge v. Harrington, 291 Or 691, 634 P2d 243 (1981)

Tortfeasor who settles plaintiff’s claims against all tortfeasors is not barred from recovering contribution on theory that resulting dismissal constitutes judgment that tortfeasors who did not participate in settlement are “not liable in tort to the claimant.” Transport Indemnity Co. v. BB and S, Inc., 63 Or App 392, 664 P2d 1115 (1983), Sup Ct review denied

State is “person” for purposes of paying or recovering contribution. Beaver v. Pelett, 299 Or 664, 705 P2d 1149 (1985)

Contribution claim notice by defendant is insufficient to make state liable in tort to claimant under ORS 30.275. Beaver v. Pelett, 299 Or 664, 705 P2d 1149 (1985); Mitchell v. Sherwood, 161 Or App 376, 985 P2d 870 (1999), Sup Ct review denied

State’s third-party contribution claim against plaintiff’s attorney in earlier action, alleging that he was negligent in failing to “monitor” entry of order in that action and that his negligence contributed to damages sustained by plaintiff was wrongly dismissed and was not subject to defense of “no duty,” even if ORCP 63E directs court clerk to send attorney notice of entry of order. Simpson v. State of Oregon, 94 Or App 15, 764 P2d 580 (1988)

Where insurance company sought contribution under this section based on allegation that Oregon Health Sciences University and state were responsible for obligation insurance company discharged, but only partially, as subrogee of resident doctor and hospital at which malpractice allegedly occurred, insurance company’s allegations do not establish right to contribution as matter of law. Aetna Casualty & Surety Co. v. OHSU, 310 Or 61, 793 P2d 320 (1990)

Where claim settled without trial, contribution plaintiff was not required to prove damage and liability details of underlying suit to recover from contribution defendant. Jensen v. Alley, 128 Or App 673, 877 P2d 108 (1994), Sup Ct review denied

Source

Last accessed
May 30, 2023

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