Earlier this year, the Supreme Court issued Eclectic Investment, LLC v. Patterson, 357 Or 25, 346 P3d 468, modified, 357 Or 327 (2015). Eclectic has fundamentally affected pleadings and third-party practice in multi-party tort actions. Previously, it was standard for third-party defendants without a contractual relationship to sue each other for common law indemnity and contribution. Where liability was closely related or possibly overlapping, this was a negotiation tool and a potentially valuable claim. Not anymore. By confirming the elimination of common law indemnity for negligence claims in Oregon, the decision has prompted much argument and motion practice. Parties are now seeking to extend the reach of the several liability statute, ORS 31.610, to eliminate common law indemnity and contribution claims in other contexts.

Of recent note is Wyland v. W. W. Grainger, Inc., No. 3:13-CV-00863-AA, 2015 WL 3657265 (D Or June 11, 2015). There, the plaintiff, a mechanic, was injured on the job when a grinder broke apart. The plaintiff sued the distributor for negligence and strict products liability, and the distributor sought indemnity from the suppliers. The suppliers moved for summary judgment, arguing that Eclectic precluded the distributor from recovering common law indemnity. The Court held that Eclectic did preclude the claim as to negligence, but not as to strict liability. The holding raises at least two issues of note.

First, a defendant may be required to use ORS 31.605 to issue special questions for the jury and an apportionment of liability in order to cut off common law indemnity claims from other defendants. Therefore, it is recommended that parties indicate in their responsive pleadings that they will be asking for such an allocation among parties. If they don’t, a case may result in an undifferentiated judgment, subjecting the parties to a second trial or a hearing on common law indemnity issues. Under ORS 31.605, any party may request such an allocation, so a defendant need not await action from the plaintiff in order to cut off common law indemnity rights from other third-party defendants.

Second, the Court held that the Eclectic analysis does not apply to strict product liability claims. As the Court noted, “[T]he rationale behind Oregon’s strict liability is not based on negligence or fault[.]” The Oregon Legislature has set product liability apart from all other torts claims covered by comparative fault in ORS Chapter 30. Indeed, the Eclectic case also forecast this result, noting in dicta that courts have been reluctant to apportion fault in product liability cases prospectively. Therefore, it is likely that if the issue were to come before the Oregon Court of Appeals or the Supreme Court, they would hold that manufacturers, distributors, suppliers and sellers or lessors are subject to claims for common law indemnity and contribution.