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 compara-
tive negligence statutes apply and in which jurors allocate
fault—and thereby responsibility—for payment of damages
between tortfeasors, and each tortfeasor’s liability is sev-
eral 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 liabil-
ity. 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 contribu-
tion “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 per-
   sons 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 stat-
ute 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 contri-
   bution beyond the proportional share of the tortfeasor of the entire liability.
   	   “(3)  A tortfeasor who enters into a settlement with a claimant is not enti-
   tled 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 indem-
   nity 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 prin-
   ciples 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 incon-
sistent 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 restitu-
tion” 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, there-
fore, 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 approv-
ing the excavation without requiring the contractor to make
any change to the steep slope. Those actions were signifi-
cantly 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 rail-
road 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 for-
mer opinion is modified and adhered to as modified.
