*1 affirmed, judgment Appeals May Argued of Court of and submitted decision proceedings reversed, circuit court for further and case remanded to circuit court 22, 2011 September LASLEY, D. Clarence Estate of for the Representative as Personal Lasley, Mark Alan Review, on Petitioner INC., TRANSPORT, COMBINED Review, on Respondent CLEMMER, Marie Judy Review. Respondent on S058762) (CC 0608-08260; A137222; SC CA P3d 1215 Stephen Firm, P.C., of Hendricks C. Hendricks Law argued petitioner Portland, the cause and filed brief for on review.
Allyson Krueger Williams, LLP, of Hitt Hiller S. Monfils argued respondent Portland, the cause and filed the brief for Transport. on review Combined
Lindsey Hughes Keating Hughes, P.C., H. Jones Oregon Trucking Portland, filed the brief for amicus curiae Associations, Inc. Payne Haglund Kelley Wilder, LLP,
Shenoa L. & Jones Oregon Portland, filed the brief for amicus curiae Trial Lawyers Association.
WALTERS, J. dissenting opinion, Muniz, J.,
De C. filed a in which joined. J., Durham
WALTERS, J. evidentiary
In this case we decide and questions negli- that arose the trial of a multi-defendant gence brought Plaintiff, father, case. decedent’s this case (Combined against Transport, defendants Combined Inc. (Clemmer). Transport) Judy day Clemmer On the operated by died, decedent a truck owned and Combined Transport part large panes glass lost of its load of the on the freeway. During clean-up, up 1-5 traffic backed and dece- stopped. pickup, dent was causing Clemmer drove into decedent’s system. ensuing leaks in its fuel fire killed dece- negligent dent. Combined denied that it was foreseeably its conduct resulted in decedent’s death. negligent driving Clemmer admitted that she was at an speed failing proper unreasonable and in to maintain a look- out and control. Clemmer also admitted that her pleadings, awas cause of decedent’s death. Based on the granted plaintiffs trial court motion in limine to exclude evidence that Clemmer was intoxicated at the time of the jury collision. The dants, rendered a verdict both defen- finding percent Combined at fault and percent plaintiffs damages. Clemmer 78 at fault for Transport appealed and the Court of Appeals concluding reversed, that the trial court had erred in excluding the evidence of Clemmer’s intoxication. The Court Appeals held that that evidence was relevant to two issues:
“Although Clemmer admitted
negligent,
that she was
required
to consider evidence of the circum
relating
stances
to the accident
to determine whether
Transport’s negligence
was a substantial
factor
in causing
and,
so,
decedent’s
apportion
death
if
fault
between defendants. Clemmer’s intoxication was relevant
to those
Lyons
determinations. See
&
Walsh
Sons
Co.,
Trucking
Ltd.,
App 76, 84,
(2002),
183 Or
5 11, 20-21, Inc., 234 Or App v. Lasley Transport, 1, P3d 237 859 1200, recons, App adh’d to on 227 P3d (2010). its reconsideration, the of clarified Appeals On Court opinion:
“First,
relevant
to the
the evidence of intoxication is
analysis
it is relevant to
jury’s
factor’
because
‘substantial
adequate
of
There is an
factual
the cause
the accident.
the
testimony concerning
quality of
nexus
the
between
to
driving
consumption
and her
of alcohol
allow
Clemmer’s
affected
jury
the
the determination
the alcohol
make
proper
lookout.
ability
keep
her
her vehicle and
control
That,
turn,
of
jury’s
in
affect the
determination what
could
181
Corp.,
caused the accident. Ostrander v. Alliance
Or
(2002).
den,
283, 291,
Or
App
45 P3d
rev
104
relevant
to the
Accordingly, Clemmer’s intoxication is
regarding
cause-in-fact determination
conduct of
jury
Transport, because the
must consider the
making
‘totality
potentially
of
causative circumstances’
Lyons,
App
at 84.
that determination.
Or
hand,
of
is rele-
“On the other
the evidence
intoxication
fault,
apportionment
of
because
shows blame-
vant to
worthiness. The considerations announced
Sandford
590, 608,
Motors, 292
We allowed petition evidence of explain, reasons we shall we decide issue of Clemmer’s intoxication was not relevant whether Combined was a cause relevant issue apportion- decedent’s death but was Court Appeals, ment of fault. We affirm the decision and remand to the court, of the circuit judgment reverse proceedings. circuit court for further
6
CAUSATION begin question We with whether evidence of on Clemmer’s intoxication was relevant the issue of causa- argument proceeds tion. Plaintiffs that it not as was follows: (1) only Clemmer admitted therefore causation, causal Transport’s neg- issue before the ligence whether Combined was causing also was a factor in substantial decedent’s (2) Transport’s negligence death; whether Combined awas independent question cause of decedent’s is an death depend negligence; does not on Clemmer’s and therefore (3) why erratically Clemmer and drove struck decedent’s pickup was irrelevant. Transport ways parts plaintiff
Combined
with
at the
step
plaintiffs argument.
Transport
second
Combined
adopted
adopt
asserts that this court has not
and should not
a rule that the causation of each tortfeasor must be decided
separate
apart
isolation,
“in total
and
from the conduct of
regard
co-tortfeasors, and
all
without
of the circumstances
plaintiffs injury.”
that contributed to the
To determine
whether Combined
“substantial,”
conduct was a
opposed
“insignificant,”
causing
as
to an
factor
decedent’s
harm, Combined
contends that
all of
evidence
concerning
including
harm,
events that
led to that
Alternatively,
intoxication,
Clemmer’s
was admissible.
Transport argues, “[g]iven
severity
and
nature
speed
driving,
of Clemmer’s
and drunk
going
was entitled to
introduce evidence
Clemmer was
(Emphasis
original.)
to cause the harm no matter what.”
Why
erratically
Clemmer
drove
struck defendant’s
pickup
purpose.
also was relevant for that
making
arguments,
parties accept
those
both
premise
negligence multiple
that,
when
tortfeasors
produce
negligence
harm,
combines
each tortfeasor whose
may
was a cause of the harm
be held liable. Hills v.
(1965).
McGillvrey,
476,
240 Or
402
482-83,
P2d 722
parties
agree
legal
factual,
also
cause,
is
at issue
in this case. This court has abolished not
the terms
“proximate”
concepts
“legal”
but also the
cause.
Oregon
Coopers
Lybrand,
Steel Mills
LLP,
&
336 Or
(2004); Simpson
Charity
329, 340,
See also Or 561 instruction using harm); physical test to determine cause “substantial factor” of Plywood Co., 603, 606, 469 Stewart Jefferson (1970) (using discussing P2d 783 “substantial factor” when connection); Intermountain, v.Pac. “cause in fact” Babler Bros. (1966) (noting that, 459, 463, 244 negligence 415 P2d in most Or 735 inquiry “the the actor’s cases, factual whether producing in is conduct was a substantial factor the harm rel uncomplicated”); Dewey atively Co.,& v. A. F. Klaveness (1963) (phrasing 515, 541, P2d the causation Or was a standard as whether the defendant’s conduct “substan injury). physically producing the tial factor” in Transport argue What Combined does as a out, “substantial factor” test is intended rule factual significant minimally harm, cause of act that is in the Transport chain causal of events. Combined contends that expresses “concept relativity” the that factor” test a of “substantial permits degree a to consider the which the con- particular causing duct of defendant was factor in harm and to relieve a if defendant its conduct was insignificant compared or insubstantial when to the conduct support contention, of others. In Combined (Second) § cites the Restatement Torts 433 comment d (1977), provides, part: which contributing produc- “Someother event whichis factorin ing ing insignificant may predominant bring- the harm have such a effect it about as to make the effect the actor’s prevent being and, therefore, to fromit a sub- stantial factor.” not demonstrate, does how- adopted
ever, that comment, this court has or that approach, Oregon.1 Transport begins as the law proposi- McEwen, 407-21, with citation to 270 Or at for the multiple tion that the conduct of defendants must ana- be together lyzed to determine whether each defendant’s con- proposition duct awas cause of the harm. That correct. In McEwen, the court considered the conduct of both analysis explained defendants causation that the *7 plaintiff need not show that each defendant’s was bring plaintiffs by itself; “sufficientto enough about harm it is [each substantially defendant] that contributed injuries eventually by [the plaintiff.]”
the suffered at not, Id. 418. McEwen however, does stand for the addi- proposition every that, tional case, multi-defendant the jury liability is entitled to relieve a of defendant if its contri- plaintiffs injuries insignificant bution to the pared was when com- the contribution of another defendant. 1 (Second) superseded by We that note the Restatement has been the Restatement (Third) (2005) Torts and that the which comment on relies been deleted.
9 Penney 643, P2d Co., 269 Or 525 In v. J. C. Smith (1974), request rejected court one codefendant’s the just permitted jury com- such a that have a instruction would parison. defendant, the of a service case, In owner that one plaintiff waiting room, station, a fire in its where started supplied standing. happened The second defendant to be the coat that the the used to construct flammable fabric was wearing. permitted plaintiff at Id. 646. court was determining jury to consider the conduct each defendant plain- or to the whether the conduct of each both contributed injuries. rejected gas court station’s However, tiffs pursuant request instruction, to the Restatement for an (Second) jury § d, that the should deter- Torts comment supplier’s pre- conduct had such a mine whether the fabric injuries bringing about the that it made dominant effect “insignificant” gas and therefore not station’s conduct injuries. Id. at 659. The court stated cause principle applicable in comment d not reflected was jury presented “[t]he find to the facts because would have to gas [the owner’s] fac- station conduct a substantial injury plaintiff causing at to the of some extent.” Id. tor in an Oregon adopt comment The court not d as the law of 660. did might appropri- be describe the circumstances in which permit jury to relieve a defendant of because ate to relatively insignificant effect of conduct was in the its chain events. causal on
The other cases which Combined System, v. relies—Joshi Providence Health (2006), Irrigation District, P3d 1164 Furrer Talent (1971) 494, 466 Or P2d 605 not multi-defendant cases. —were malpractice case in held that the Joshi was which court expert permitted testimony that, was not to adduce actions, if the defendant had taken certain decedent greater percent improved would have had a 30 chance of decide, outcome. The court was not called on and did decide, if that, even the defendant’s conduct was cause death, the defendant not be held liable the decendent’s could relatively insignificant. if its conduct was Furrer, the trial court instructed follows:
“ you preponderance ‘If find from of the evidence in at of the negligent particu- that defendant was least one in and further charged complaint, lars amended preponderance find of the that negli- from a evidence gence causing a of the defendant was substantial factor in damage plaintiff, to the defendant would be liable for all the damages you though find the has suffered even ” might damage.’ acts of others also have contributed to said that objections at 510. One of the defendant’s instruction that the court had erred in failing was to further define the factor.” discussing objec- term “substantial In that tion, the stated that court expresses concept
“[t]he term ‘substantial factor’ a of rela- tivity is which difficult to reduce to further definiteness. Little, anything, if can to help jury be done with words much decide how causal exist relationship must between damage conduct and before constitutes a basis for recovery.”
Id. at 511. court The concluded that further explanation would not materially and that trial enlighten jury Joshi, Id. at 511-12. Like court had erred. Furrer did not not of whether, case, the issue present every multi-defendant a jury entitled compare significance defendants’ conduct. may
It be possible a imagine circumstance which one defendant’s act is factual cause of a plaintiffs harm in the sense that the harm not would have occurred conduct, absent the defendant’s but in that which defendant’s conduct insignificant, is so when contrasted with the conduct of a defendant, second the first defendant’s conduct should not be deemed a cause of the plaintiffs harm. How- ever, for the reasons that shall we explain, circumstance here, presented and, therefore, do not we address it.2 case, this both the conduct of Clemmer conduct of Combined were substantial factors in contributing to decedent’s death. Clemmer her admitted that conduct in driving her car into decedent’s with pickup such position concept, For the cause is not relative see the Restatement (Third) Torts § 26. ignite system pickup its fuel caused force that leaks causing death. factor in decedent’s substantial spilling load of conduct in found that Combined *9 bring freeway glass panes to his decedent caused on testimony stop. expert pickup that, had dece- Based on to speed moving to the limit when at or close dent been impact the collision would not have him, hit Clemmer ignited, great, not have and decedent’s truck would been as died, not found that Combined decedent would have causing Transport’s a substantial factor conduct also was fact that Combined The additional decedent’s death. sought prove Transport intoxicated at Clemmer was —that not make Clemmer’s conduct time of the collision—could significant Transport’s any conduct or Combined more analysis. significant in that causation less argument Transport’s primary evi- Combined —that could establish that her con- dence of Clemmer’s intoxication analysis significant in the causation duct was more —con- negligence. deciding and In whether a fuses causation plaintiffs harm, cause of a defendant’s act is factual conduct, and not that con- effect of the defendant’s whether expected care, is the relevant duct fell below standard sober, if So, instance, Clemmer had been consideration. driving speed, keeping proper rate look- at reasonable maintaining night out, control of her car on the of dece- had, nevertheless, death, if she collided with dece- dent’s stationary pickup such force that the truck dent’s with ignited died, and decedent Clemmer’s conduct would have though a cause of his death. That would be so even been negligent not held Clemmer was not and could be liable to plaintiff. case,
In that her this Clemmer admitted conduct— pickup killing colliding with decedent’s effect of —had him. under the influence of alco- Evidence that Clemmer was engaged hol she in that could not make its when conduct any greater. Evidence that Clemmer under causal effect way prove could an additional the influence of alcohol care; from the standard of it could which Clemmer deviated way prove in which Clemmer contributed additional decedent’s death. the chain of events that caused argues, Transport alternatively, that evi- Combined dence of Clemmer’s intoxication was relevant to demonstrate Transport’s significant that Combined conduct was less analysis. Transport the causation Combined contends it prove that, was entitled intoxicated, because Clemmer was pickup she would have collided decedent’s and killed with freeway. stopped him, even if had he not been on the words, other contends that evidence of prove Clemmer’s intoxication was relevant to that Combined Transport’s did conduct not contribute decedent’s death at all; the collision and death if would have occurred even dece- travelling speed dent had been or near at limit. Although argu- alternative may ment merit in abstract, have fails on the record proffer before us. Combined did not evidence that that, showed because Clemmer was intoxicated, she inevita- bly pickup decedent, would have killed even if his had not stationary. been *10 proof opposition
In the of that it offer submitted in to Transport limine, in motion asserted qualified expert physician testify that a would to Clemmer’s testify blood alcohol level at the of collision, time would “ that Clemmer medical sowas intoxicated that she was in ‘near ” ‘stupor,’ testify and would that “intoxication was the cause of the accident and if Clemmer were not intoxi- cated, accident not would have occurred.” Combined lay drinking asserted that two witnesses who were testify with alcohol amount Clemmer before collision would to the got of alcohol that Clemmer drank before in she her they [have car and that that “believed Clemmer not should driving been] to due her intoxication.” Combined lay driving also asserted that witnesses saw Clemmer and driving also her “believed that erratic and reckless was the of result intoxication.”
The trial court excluded all evidence of Clemmer’s permitted lay intoxication, but the 11 witnesses to describe speed Clemmer’s excessive and the in erratic manner which Many she drove. of those witnesses were on the themselves freeway, many moving in vehicles. Clemmer did not collide although them, with of some testified that she “almost” permitted not demon- did that the court did. evidence the collision and have caused that Clemmer would strate travelling at or if decedent had been death even decedent’s speed limit. the court excluded— The evidence that near the she drove at that exces- was intoxicated when that Clemmer sup- speed not have in that erratic manner —would sive and missing plied connection. intoxication would the fact of Clemmer’s
Because significant or Combined conduct more have made Clemmer’s analysis, significant in causation conduct less proceed the issue of to that issue. We to it was not relevant was, intoxication neverthe- whether evidence Clemmer’s apportionment fault under to less, relevant the issue ORS 31.600.
APPORTIONMENT OF FAULT multiple defen- a trier of fact determines that When negligent and the conduct of each was a dants were plaintiffs harm, the trier of fact is then cause-in-fact required determine the relative fault ofthe defendants and plaintiffs damages apportion between them on that 31.600(2). that, under basis. ORS Plaintiff concedes required 600-08, 292 Or at the trier of fact is Sandford, compare degree each defendant deviated from to which “blameworthy.” Plaintiff the standard care and is therefore asserts, however, this case the evidence of that the entitled to Clemmer’s blameworthiness consider was evidence negli- specifications material to the gence pleaded and that admitted. Clemmer alleged, admitted, that Clemmer was Plaintiff Clemmer negligent driving speed failing at an excessive keep proper her lookout and control of car. Plaintiff did not *11 driving allege negligent intoxi- that Clemmer was while plaintiff intoxication Therefore, contends, cated. Clemmer’s parties comparison of not material to a ofthe fault the as was pleadings. framed plead- Transport it filed counters that two
Combined ings permitted of Clemmer’s that the introduction of evidence (1) its answer on the of her relative fault: intoxication issue (2) against general denial, a cross-claim included and that allega-
Clemmer for contribution that included affirmative driving negligent in tions that Clemmer was under the influ- Alternatively, of ence intoxicants. Combined asks that, required if this court decides that Combined plead affirmatively of the fact Clemmer’s intoxi- that cation but appropriate a cross-claim for contribution was not the so,
vehicle to do we construe its as an cross-claim affirmative defense. Appeals specifically of did Court not address Appeals simply of
those issues. The Court concluded that evidence of Clemmer’s intoxication was relevant apportion Lasley, App fault between defendants. at 20. follow,
For the that that, reasons we hold in a com- parative negligence rely case, a defendant that seeks to on a specification negligence alleged by of proportional establish a codefendant’s affirmatively plead share of fault must specification and do so in its answer an affirmative defense and not in a cross- special claim for contribution. In the circumstances that this presents, case construe we cross-claim alleging as an affirmative defense that Clemmer deviated by driving from the of care standard under the influence of and intoxicants decide that evidence of Clemmer’s intoxica- tion was material relevant. begin by discussing Transport’s argu
We ment that evidence Clemmer’s intoxication was admissible general Transport argues under its denial. Combined Oregon’s comparative require fault statutes to com pare parties the fault of and, therefore, make all facts rel 31.600(2) comparison requires evant to that admissible. ORS “compare that the trier of fact the fault of fault the claimant with any party against recovery sought, whom party the fault of third defendants are who liable in tort to any person claimant, fault of with whom the provides “[w]hen claimant has settled.”3 ORS 31.605 31.600(2) provides: ORS compare “The trier of fact shall the fault of the claimant with the fault of party recovery sought, party whom fault third defendants claimant, any person who are liable in tort and the fault with whom
15
special
by
party
requested
answer
trier of fact shall
* * *
person
degree
[t]he
indicating
questions
of each
of fault
4
31.600(2).”
comparative
specified
fault
in ORS
Because
agree
require
comparison, we
with Combined
that
statutes
compari
may
on that
that
bear
that all evidence
ques
potentially
does not answer the
relevant. That
son is
rely
to
on a
that intends
tion, however, whether a defendant
by
plaintiff
negligence
pleaded
specification
must
a
of
plead
affirmatively
them admissible.
those facts to make
neg-
plaintiff alleged
Clemmer was
case,
this
failing
ligent
driving
speed
in
to main-
at an excessive
proper
Plaintiff also
and control ofher vehicle.
tain a
lookout
alleged,
separate,
specification
additional,
as a
of
could have
driving
negligent
negligence,
under the
that Clemmer was
Gilroy,
718, 720,
Or
of intoxicants. See Winn v.
296
influence
(in
(1984)
wrongful
plaintiff
action,
the other atwas fault and that that fault was a con- tributing injury death].” cause to or added.) (Emphases
a When defendant contends a codefendant was affirmatively allege fault, at the defendant also must unpleaded fault of the noted, codefendant. As ORCP 19 B requires party affirmatively allegations a set forth “comparative negligence.” requirement That limited is not provides: ORCP 19 B pleading preceding pleading, “In party to a affirmatively shall forth set satisfaction, award, risk, accord and assumption compara- arbitration and contributory negligence, discharge bankruptcy, duress, or tive estoppel, fail- consideration, fraud, illegality, servant, laches, injury by license,
ure of fellow release, payment, judicata, frauds, limitations, res statute statute of uncon- waiver, stitutionality, constituting other matter an avoidance or affir- party mistakenly designated mative defense. When a has defense as coun- defense, terms, justice terclaim or a counterclaim as a the court on if so requires, proper designation.” shall treat the ifas there had been a added.) (Emphasis plaintiff. comparative
allegations of a requires affir- to set forth B a defendant addition, ORCP 19 constituting matively “any matter avoidance other defense.” affirmative required “fairly general meet the sub-
A denial is allegations Therefore, a ORCP 19 A. denied.” stance of general plaintiff put facts that a does not at issue denial pleaded. Deering 613, 576 P2d Alexander, 281 Or general (1978), denial between a the distinction describes an affirmative defense: rules, contro- evidence which Oregon pleading “Under may shown necessary proved by plaintiff to be be verts facts * * However, the defen- general under a denial. *. where directly does not present dant desires to evidence which by necessary plaintiff, established controvert a fact be an affirmative pleaded matter which must be new defense.” omitted.)
(Internal This court has defined “newmat citations consisting those ter” as of “a statement of facts different from judicial by plaintiff and not within the averred embraced inquiry Co., their truth" Hubbard v. Olsen-Roe into Transfer (1924). 618, 627, 224 P 636 When a defendant seeks to damages for the that a claims avoid asserting *14 blameworthy engaged that a codefendant in more by negligent pleaded plaintiff, conduct not the the defendant posture relies for that defensive on facts different from those by plaintiff. averred the 31.600(3) combination,
In ORS and ORCP 19 B way, affirmatively must, in establish that a defendant some plead specification negligence rely, on which it intends to by plaintiff, pleaded and that has not been the to establish general permit the fault of a codefendant. A denial will not unpleaded defendant to adduce evidence of a codefendant’s negligence liability plaintiff. the to avoid argument
We next address Combined negligence may affirmatively plead that a defendant the codefendant in a cross-claim for contribution. The current comparative negligence provides propor- scheme the tional of fault of each tortfeasor will be determined share negligence brought by plaintiff. in the action the ORS 18
31.805(1).6 1971, In the case.7 However, always that was amongst contribution permitted the contribution statute The liability.8 their rata share of pro cotortfeasors based on the fault and con- comparative amended both legislature in The amended legislature tribution statutes 1975.9 6 31.805(1) provides: ORS liability proportional in shall based “The shares of tortfeasors the entire be degrees responsibility. upon In their relative of fault or contribution actions 31.600, liability proportional arising out of under ORS share of a tortfeasor upon percentage in the entire shall be based the tortfeasor’s common of all tortfeasors.” 1971, statute, legislature adopted comparative fault which In first 1971, contributory negligence complete recovery. abolished as a bar to Or Laws Sess). statute, 668, plaintiffs compared (Spec ch Under that fault was with § defendant, recovery by plaintiffs
that of the and the was diminished his or her own fault, greater proportion provided fault was not than the defendant’s. 1995, legislature legisla- amended that statute to its current form. The parties ture added a section that detailed the parison that were to be included in the com- provided, part: of fault and “(2) compare The trier of fact shall the fault of the claimant with the fault any party against recovery sought, party whom third the fault of defendants claimant, any person who are liable in tort to the and the fault of with whom against claimant has settled. The failure of a claimant to make a direct claim party requirement third defendant does not affect the that the fault of the third party by defendant be the trier of fact considered under this subsection.” (2003). (1997), Former ORS 18.470 renumbered as ORS 31.600 original provided, part: The version oí ORS 18.440 former “(1) Except provided Act, persons as otherwise in this where two or more jointly severally injury person prop- become or liable in tort for the same or erty death, wrongful right among or the same there is a of contribution though judgment any them even has not been recovered all or of them. “(2) right contribution exists favor of a tortfeasor who has paid pro liability, than more his rata share of the common and his total recov- ery paid by pro is limited to the amount him in excess ofhis rata share. tort- No compelled beyond pro feasor is to make contribution his own rata share of the liability.” entire Sess). 665, (Spec Or ch 1§ Laws comparative provided comparison The amendments to the fault statutes for a any party, including multiple of fault between defendants: “Contributory negligence recovery any person shall not bar in an action * * * damages injury person property to recover for death or or if the fault person seeking recovery greater to the attributable was not than the combined person persons against recovery sought, fault of the whom but dam- ages proportion percentage allowed shall be diminished in the to the of fault *15 person recovering. attributable to the This section is not intended to create or any abolish defense.” Sess) (italicized omitted). 1975, 599, removed; emphasis (Spec portions Or Laws ch 1§
19 to com- trier of fact permit fault statute comparative the con- amended The legislature parties. the fault of all pare entitled to were that co-tortfeasors to reflect statute tribution “proportional of their in excess for amount any contribution liability. share” several, and a and time, liability joint
At that
one
any
from
entirety
in its
a judgment
could collect
in liti-
engage
then could
The defendants
of the defendants.
responsibility
ultimate
to allocate
themselves
between
gation
P2d
Whittier, 25, 27, 569
See DeMaris
for payment.
(1923)
In 696, 1-5 1995, (Spec ch Or Laws §§ scheme. tive Sess). signifi- Most changes. law reflects those The current joint eliminated discussion, the legislature for our cantly, Sess).10 1995, 696, ch 5 (Spec Or Laws liability. § several a tortfeasor only; is several 31.610, liability ORS Now, under as determined of fault for its only percentage is responsible brought by plaintiff.11 the action provided a tortfeasor was lia- amendments to the contribution statute The rata, pro relevant only proportional, shares. The for its not its in contribution ble provided: part of that statute “(1) section, per- Except provided two or more otherwise in this where as injury person jointly severally or liable in tort for the same become or sons death, among right wrongful of contribution property there is or for the same any ofthem. though judgment all or has not been recovered them even person liable in tort to the right from a who is not There no of contribution claimant. “(2) right in favor of a tortfeasor who exists contribution liability, proportional and his total paid share of the common more than his proportional recovery paid of his him in excess is limited to the amount beyond propor- compelled his own to make contribution share. No tortfeasor is liability.” of the entire tional share Sess) (italicized removed; emphases 1975, 269, (Spec portions omit- ch 1§ Or Laws ted). 31.610, joint 18.485, provided and sev renumbered as ORS Former ORS provide liability. 1987, legislature that non- amended that statute eral 774, 1995, legis 1987, only. 7. In damages § Laws ch were several Or economic “arising joint liability out of for all civil actions the statute to abolish lature amended Sess). 696, (Spec property damagef.]” ch bodily injury, § Or Laws death or part: provides, in ORS 31.610 “(1) arising section, provided action Except in this civil otherwise damage, including property claims for emotional bodily injury, death or out of comfort, society, care, companionship and loss of distress,
injury loss *16 it did change,
When the made that not legislature Thus, amend or the contribution statute. under repeal consortium, liability damages plaintiff of each defendant for awarded to only joint. shall be several and shall not be “(2) (1) section, any action described in subsection ofthis the court shall damages per- in determine the award centages to each claimant accordance with the of by determined the trier under ORS 31.605 and shall determined to be liable. The court shall of fault of fact judgment against party enter enter a each judgment plaintiff against any party in favor of the third defendant any degree, who is found to be liable in even if the did not make a party liability direct claim the third defendant. The several each of party judg- separately and third shall be set out in the defendant ment, defendant by percentages based on the determined the trier judgment under of fault of fact monetary ORS 31.605. The court shall calculate and state in the amount 31.600(2). reflecting obligation person specified of share of each ORS person’s obligation equal Each share of the shall be to the total fact, damages by amount of the found the trier of with no reduction for paid by way contribution, multiplied amounts in settlement of the claim or of by percentage person by of fault determined for the the trier of fact under ORS 31.605. “(3) Upon year judgment motion made not later than one after has become by review, lapse appeal appellate final oftime for or after the court shall deter- part party’s obligation mine whether all or of a share of the determined under (2) subsection of this section is If uncollectible. the court determines that all or part any party’s obligation uncollectible, of share of the the court shall real- among parties. locate uncollectible share the other The reallocation shall party’s respective percentage be made on the basis of each of fault determined by the trier fact under ORS 31.605. The claimant’s share of the reallocation any percentage shall be based on claimant attributable to a fault determined to be attributable to the by 31.605, plus any percentage the trier of fact under ORS of fault person who has settled with the claimant. Reallocation ofobli- gations any right under this subsection does not affect to contribution from the party obligation whose share of the is determined to be uncollectible. Unless party judgment the with the liability has entered into a covenant not to sue or not to enforce a claimant, continuing reallocation under this subsection does not affect judgment by party on the to the claimant whose share of the obli- gation is determined to be uncollectible. “(4) (3) Notwithstanding section, party’s subsection of this share of the obligation may by to a claimant not be increased reason of reallocation under (3) subsection of this section if: “(a) percentage equal greater The of fault of the claimant is to or than the percentage party by of fault of the as determined the trier fact under ORS 31.605; or “(b) percentage party percent offault ofthe is 25 or less as determined by the trier of fact under ORS 31.605. “(5) any party’s obligation If share of the a claimant is not increased (4) application section, reason of the of subsection of this the amount of that party’s share of the reallocation shall be considered uncollectible and shall be (4) among parties subject reallocated all other are who to subsection ofthis section, claimant, including provided in the same manner as otherwise (3) reallocation under subsection of this section.” added.) (Emphases comparative negligence
Oregon’s scheme, no tortfea- current percentage fault, and that sor is for more than its liable original percentage of fault is determined 31.610(2); plaintiff. brought by ORS A action ORS 31.805. bring seek a differ- defendant cannot a contribution action to percentage of A ent determination of its fault. contribution only permit “paid action serves a defendant who more” liability” “proportional than ofthe to obtain its share common person from another who is also liable for the contribution same 31.800(2).12 injury or death. ORS Because defendant’s is several pay obligated propor- its the defendant is not more than liability, tional it seems the circumstances share pay proportional which a defendant will more than its share and, therefore, have to seek from a a reason contribution *17 31.800(2) quite However, codefendant will be limited. ORS permit a for should those cir- continues to claim contribution exist, those a And, cumstances exist. should circumstances use a a claim for contri- defendant could cross-claim assert against a bution a ORCP 22 B defines cross- codefendant. “existing asserting claim claim as a favor the defendant against defendant, the cross-claim and whom another between judgment might separate action[.]” A be had in the paid” proportional “has defendant who its share could seek a separate against judgment a codefendant for the excess by payment amount of its and do so means of a cross-claim. per- however,
A cross-claim not, for contribution is fectly adapted allege for use defendant to that a codefen- damages dant at fault for the be and should held plaintiff. liable, defendant, not to the but to the In that separate judgment instance, the defendant does not seek a against required by so, the codefendant as 22 B. Even ORCP comparative negligence the statutes indicate such a pleading may permitted. plaintiff noted, be As does when 31.800(2) provides: ORS right paid “The contribution exists who has favor of tortfeasor proportional liability, recovery total more than a share the common and the paid by is limited to the amount the excess the tortfeasor tortfeasor beyond
proportional compelled No share. tortfeasor is make contribution proportional liability.” share of the tortfeasor of the entire added.) (Emphasis join comparative negli-
not gence defendant, tortfeasor as a permit
statutes the named defendant to file a third- 31.600(3). party complaint against the tortfeasor. ORS third-party instance, that the defendant defendant will not be liable to potentially, plaintiff. but, will be liable to the C(l) third-party However, ORCP 22 restricts claims to cir- party may cumstances in which a third “is or be liable to the C(l) party plaintiff.” although Thus, third ORCP indicates third-party designed that a claim is circumstance in third-party may which the defendant is or be liable to the 31.600(3) third-party plaintiff, permits ORS a defendant to third-party complaint allege third-party file a that a defen- potentially plaintiff. dant is at fault and liable to the ORS 31.600(2) specifically provides plaintiff that the fact that a party third-party prevent not a to the claim does not the trier comparing third-party of fact from the fault of the defendant brought by plaintiff.13 in the action legislature anticipated Thus, the that a defendant third-party complaint against could file a a tortfeasor who would not be liable to the defendant could, instead, but who plaintiff. legislature be liable to the Whether the intended to permit a defendant to make a cross-claim a codefen- dant who would not be to the but, liable defendant instead, plaintiff, would be to the liable is unclear.
Neither an affirmative defense nor a cross-claim for ideally designed contribution is dant to as a mechanism a for defen- plead of a codefendant that is not pleaded by thereby to avoid or reduce plaintiff. defendant’s directed at a to the An affirmative defense is
plaintiff, at a not codefendant. A cross-claim for designed contribution is directed at a codefendant and is not liability plaintiff. to avoid to a balance, pleading On however, we think that an affirmative defense is the mechanism that a defendant should use. The use of an affirmative defense is consistent with the B, terms of ORCP 19 whereas the use of a require cross-claim for contribution would modification ofthe B(l) terms of ORCP 22 and ORS 31.800. We hold that a 31.600(2) provides ORS “[t]he that failure of a claimant to make a direct party requirement claim a third defendant not does affect the that the fault party by of the third defendant fact[.]” be considered the trier of allege paid its than not that has more that does defendant sepa- liability proportional not and that does seek share of judgment against that for the amount codefendant rate paying payment, avoid that seeks to instead excess but alleged damages plaintiff that on basis that a full alleged by way in a that was not is more at fault codefendant specification plead plaintiff, on must in its defense the defendant relies as affirmative which separate complaint plaintiffs and not to the answer against the codefendant. cross-claim allege Transport in its case, In did this Combined paid proportional share it had more than its cross-claim that of money judgment against Clemmer. or seek a driving alleged Transport that was Clemmer Combined sought to have the influence of intoxicants and under proportionate to her such amount as is Clemmer “contribute share.” Combined Transport those alle- should have included gations its defense. Because it answer an affirmative requests Transport that we construe its not, did Combined 12. We as an affirmative defense under ORCP cross-claim argument. turn to that now
Important issue an under- resolution standing Transport pleadings that Combined filed and rulings plain- that the trial made. In its answer to court complaint, Transport tiffs Combined included an affirmative defense, and In defense two cross-claims. the affirmative Transport alleged pleaded Combined Clemmer had manslaughter guilty second-degree driving and under the had to have influence intoxicants and been determined recklessly legally intoxi- killed decedent and have been Transport alleged, Therefore, cated. Combined both precluded claiming Clemmer from and were that Clemmer negligent, reckless, was not or intoxicated. its first cross- indemnity, Transport claim for common-law alleged damages were caused Clemmer’s gross negligence driving “active and criminal conduct” in alleged neg- while intoxicated. Combined ligence, that its passive any, if Clemmer that, was because primarily responsible death, for decedent’s was indemnity entitled common-law from contribution, Clemmer. In its second cross-claim *19 Transport alleged negligent Combined conduct plaintiffs damages of Clemmer contributed to and that Transport Combined was entitled to recover from Clemmer equal proportional an amount to Clemmer’s share fault, determined the court. Transport’s
Plaintiff filed a motion to strike Combined alternatively, affirmative defense and or, cross-claims relating bifurcate issues to Clemmer’s reckless or intoxi- separate granted cated to a behavior trial. The court parties stipu- motion to strike the affirmative defense.14The indemnity lated that the cross-claim would be tried to the court and that no evidence claim would be admissible on that underlying complaint. that would not be admissible on the ruling On that basis, the trial court deferred on the motion to indemnity. strike the cross-claim for inquired The trial court then as to the function of Transport’s Combined cross-claim for contribution. Combined Transport responded, as we it, understand required would be fault all receive ofthe evidence of the relative including defendants, between the recklessness and intoxication, and after it so, did a contribution claim would only post-judgment arise if there was a reallocation of obli- 31.610(3).15 gations pursuant to ORS Otherwise, Combined Transport affecting indicated, “as far as trial, other than supplementing giving opportunity sup- a defendant the — plement the claims of relative fault in the I case, don’t believe plays independent jury.” that it role Plaintiff with the argued premature that a cross-claim for contribution was because it paid exists in favor a tortfeasor who proportional more liability. than a share of the common “It is plaintiff argued, platform not,” changing plead- “a ings.” Saying, right,” granted “I think that’s the trial court motion to strike Combined second cross-claim for contribution. assign ruling. does not error to that 31.610(3), pay Under ORS if proportional a tortfeasor cannot its share of the
judgment, portion judgment can be reallocated to the other tortfeasors under certain pay circumstances. Those tortfeasors who had to more than their proportional share after the reallocation have an action for contribution from the nonpaying Therefore, tortfeasor. the claim for contribution does not accrue until payment has been reallocated. pretrial proceedings,
Later in the after the trial court had ruled that evidence of Clemmer’sintoxication was not rel- granted plaintiffs precluding evant and motion in limine evidence, admission of that filed a motion for leave to file an amended answer with an amended cross-claim for contribution. In the amended cross-claim that *20 proffered Transport alleged it motion, with its Combined that negligent particulars, including Clemmer was in seven driv- ing Transport under the influence of intoxicants. Combined alleged required also that Clemmer should be to “contribute proportionate share[.]” considering such amount as is to her Transport’s explained motion, that, Combined the court when granted plaintiffs it had Transport’s earlier motion to strike Combined
cross-claim, had done so for a reason that nothing pleading “had to do with the of the contribution claim,but more had to dowith the role that a contribution plays play litigation, claim or doesn’t in the contextofthis jury going deciding negli- where the is to be the relative * * * gence any, fault, or if betweenthe two defendants.” negli- that, The court said gence because Clemmer had admitted percent responsible causation, and she was 100 plaintiffs damages, any responsibility jury less that Transport. assessed to Combined Therefore, the court rea- soned, there was no need for the cross-claim that Combined Transport proffered. Transport responded Combined that it seeking pleading was to file the amended “so that we have a pleading setting exactly clear forth what it is that we would plead prove intend to in this case.” The court then brought stating denying close, the discussion to a that it was Transport’s Combined motion to amend its cross-claim jury going answering question because “the to be this anyway.” proceeded
The case then to trial on com- plaint, admitting negligence Clemmer’s answer and causa- denying negligence tion, and Combined answer asserting indemnity and causation and a cross-claim for to be tried to the court on the same evidence the trial relevant to presented by complaint.16 appeal the issues On to the 2, 2007, post-trial hearing, On October the trial court denied the cross- indemnity, Transport challenge ruling. claim for and Combined does that assigned Transport to the error Appeals, Combined
Court of striking Without ruling its cross-claim. trial court Appeals addressing decided explicitly issue, the Court of that to the relevant was intoxication of Clemmer’s that evidence apportionment fault. issue compare jury requires fault of ORS 31.600 explained, a parties, have that we but, for the reasons consider to have wishes who defendant making that com- unpleaded a codefendant establishing negli- required plead
parison the facts accepted gence. fact that the codefendant plaintiff alleged not eliminate does on the facts based jury con- requirement. case, to have the Thus, in this comparing the intoxication of Clemmer’s sider evidence Transport parties, Combined either fault of the allege so, did not do facts. Plaintiff those had to Transport. pleading fell on Combined burden not use the did required However, defense. affirmative we now hold —an allege, cross-claim, the fact of in its did *21 theory intox- that Clemmer’s and its intoxication Clemmer’s pro- determining Clemmer’s in be considered ication should liability. incor- portional was to share of required selecting pleading use, but that it was rect in allega- plead recognizing it must those correct in was jury’s relevant to the intoxication to make Clemmer’s tions comparative fault. The trial court was determination premature, was for contribution correct that a cross-claim no role for Combined that there was it was incorrect but by alleging negligence Transport’s pleading Clemmer that necessary pleading pleaded by plaintiff. A was was make Clemmer’s intoxication and to allow the material comparing of Clemmer in the fault that conduct to consider Transport. and Combined unique of this circumstances that, think in the
We
Transport proffered ful-
that Combined
case, the cross-claim
put
defense, viz.,
of an affirmative
filled the function
plaintiff
comprising
theory
facts
notice of the
on
al.,
Beals et
225 Or
See Ritter v.
defense.
defendant’s
517-18,
(1961) (affirmative defense must
P2d 1080
prove).
defendant intends to
ORCP
inform
of what
every stage
“disregard
requires
court,
action,”
“in
of an
pleadings
proceedings
or defect in the
or
which does
error
rights
party.”
not affect the
of the adverse
See
substantial
Schmaltz,
163, 171,
also Bank
Nat. Ass’n v.
of Calif.
(1932) (courts
by
However, stated, for the reasons we have the evi- dence of Clemmer’s intoxication was not relevant on the liability, damages. causation, Therefore, issues we degree remand the case for a new trial limited to the of fault “expressed percentage of each defendant aas of the total 31.605(l)(b). fault” to each attributable defendant. ORS Appeals affirmed. The decision of the Court of judgment reversed, of the circuit court is and the case proceedings. remanded to the circuit court for further dissenting. J., DE MUNIZ, C.
Evidence adduced in the course of a
trial does
civil
not arise in a vacuum. It is circumscribed
the content of
parties’ respective pleadings,
requires litigants
a fact that
Oregon
plead
the ultimate facts on which their claims
(pleadings
“plain
are based. See ORCP 18 A
must
contain
*22
constituting
and concise statement of the ultimate facts
relief’);
Bancorp,
208, 221,
claim for
see also Welch v.
(1984) (“The necessity
pleading
paid and that more than its share separate judgment against a codefendant does not seek payment, but that instead for the amount of that excess damages paying the full that a seeks to avoid alleged fault that a codefendantis more at on the basis plaintiff, plead way alleged must in a that was not specification the defendant on which plain- in its answer to the relies as an affirmative defense tiffs complaint separate cross-claim and not in a the codefendant.” acknowledge majority goes at 22-23. The on to
351 Or Combined Clemmer’s defense. Id. at 23. The allegations Transport should have included the intoxication in its answer as affirmative majority, however, nevertheless con- legal particular tenet was that, time, at the cludes “unclear” as lack of resulting Oregon a matter of law. Id. at 27. majority “unique clarity, posits, created circum- transmogrify require this court stances” that now into an cross-claim for contribution Combined affirmative defense under ORCP
12. Id. at 26-27. At the end simply day, follow, is, that decision for the reasons wrong.
29 REQUIREMENTS ARE CLEAR PLEADING OREGON’S important matter, it to note As a threshold Oregon pleading unclear the little that about there is failing consequences requirements here, for at or the issue pleadings party’s matter state, to those In this adhere rules. for some time: and have theory long practice of the in use the law that
“It is a
pleadings
and control the issues to be determined
declare
parties
each
the
that the
bear to
other.”
relations
(1925).
Synnes,
451, 459-60, 235 P
See
v.
114 Or
305
Warner
City
P2d
Portland,
455, 470-71,
Or
112
also Wold v.
166
of
(1941) (citing
proposition
action
for the
that an
469
Warner
negligence
pleadings
on
on
of
could not be overturned
tried
nuisance).
theory
appeal
unpleaded
particular,
In
under
of
party’s pleadings
that can be
set the boundaries for evidence
Corp.,
at
267 Or
admitted
trial. See
v. Kinzua
Cutsforth
(1973) (plaintiff
present
could not
evi-
428-29,
A the fundamental of overall pleading process is, course, affirmative In defenses. (1961), Beals, 504, 517-18, Ritter v. 225 Or P2d this purpose pleadings: court outlined the of such pleading “A of an affirmative defensehas two It functions. must informthe the defendant will facts which give prove. It must also trial court founda- testimony ultimately taking tion for forinstruct- ing jury.” relevancy A defendant who seeks to extend the boundaries of initially by plaintiffs pleadings established must affirma- tively set forth in its answer the additional facts he on which rely, thereby making she seeks to the facts relevant purposes. trial Oregon, long negative
In failure to do had out- so has seeking unpleaded for those to advance defenses on comes example, Oregon appeal. Supreme In Court 1905, for (1905), Thayer Buchanan, 106, 79 P decided mortgage. response action to foreclose on a In his to the com- plaint part him, the defendant had asserted that principal by mortgage fraudulently covered had been knowledge by confessed without his authorization or plaintiff representing lawyer himself as the defendant’s in a separate plain- matter. The trial court found in of the favor appeal, argu- tiff, and on tack, defendant took a different ing mortgage encompassed that the note certain usurious illegal. affirming judg- elements that were the trial court’s pleadings ment, this court concluded that the below were dis- positive regard validity newly proffered with to the defense: may *24 “Someusurious items have been included in the very settlement, and it looks much case, as if such was the support
which
in
note; but,
wouldnot
themselves
as we
previously
observe,
have
out no such
the
had occasion to
the pleadings set
defense,
and
powerless
we are
help
therefore
defendant,
evenon account
such demands.”
added).
(emphasis
Id. at 110
Hougham, 62 Or
See also
Wolf v.
(1912) (in
hops,
264,
defense
order to have the
consider that evidence.
process
doing
The
for
so is not a secret. In
City
Hawkins v.
(1992)
57, 62-63,
Grande,
La
“ORCP19B in “ preceding pleading, party ‘In to a a shall set affirmatively forth satisfaction, accord and arbitration * * * risk, mat- any other award, assumption of and or affirmative defense. constituting avoidance ter * * in part: 21A provides,
“ORCP “ a for ‘Every defense, fact, to claim relief law or counterclaim, cross- complaint, a pleading, whether claim, asserted in the party or third shall he claim ” * * added.)’ (Emphasis *. responsive pleading thereto Despite roadmap provided Hawkins, for it in plead an affirmative however, did not opted, a instead, It to submit under ORCP B. defense court struck contribution, for which the trial cross-claim premature. majority apparently the trial concludes that doing disagree. so; I erred in court
THE FOR PREJUDGMENT CROSS-CLAIM WAS PROPERLY STRICKEN CONTRIBUTION A for contribution is not substitute cross-claim Today, right properly pleaded affirmative defense. Oregon’s past largely as a state seek contribution is a relic joint liability. Oregon recognized After that once and several liability for abandoned that doctrine in favor of several claims damage,1 involving bodily injury, property death, applicability con- of contribution claim since been regard, In that fined to limited set circumstances. ORS 31.800(2) provides: right
“The of contribution exists favor of a tort- *25 share of the paid proportional feasor who has more than liability, recovery the common the total of tortfeasor paid by to in the limited the amount the tortfeasor excess of to proportional compelled share. No tortfeasor is make con- beyond proportional the share of the tortfeasor tribution liability.” entire the gravamen the action is statute,
Under the a contribution paid” “propor- more his or that a tortfeasor “has than her damages. circumstance, a tional share” of Faced with that “separate may either a tortfeasor enforce contribution in 31.610(1) cases, that, provides generally multiple for defendants in such ORS damages plaintiff for to shall be several “the each defendant awarded joint.” only not and shall be regardless judgment
action” whether has entered or been 31.810(1), by parties upon ORS or motion notice to all not, the judgment after “a has been in an action entered two injury wrongful death,” more for the same or or tortfeasors 31.810(2). nothing claim result, a ORS As a contribution has determining parties; solely with to do fault of the it is be collected procedural fairly. damages mechanism to to allow together, sup-
Taken ORS 31.800 ORS 31.810 port proposition that an action contribution rele- prior judgment only separate proceeding or, vant to in a if proceeding, judgment after undertaken the same sought been entered. At the time that Combined to part pleadings its have cross-claim made case, in this judgment damages however, no had been rendered and no paid; yet indeed, been had begin. Consequently, the trial on claims had to altogether appropriate
it was for the premature. court to trial strike cross-claim as Transport’s subsequent attempt to amend its contribution request nothing change premature did of that nature day pretrial attempt At the claim: end of it remained a brought post-judgment initiate a matter could be or separate proceeding. Consequently, in a it warranted the response. ruling. same trial court err The did not in either majority, course, has different It view. ulti- mately only problem concludes that with Transport’s cross-claim for contribution was its des- defective ignation as such rather than anas affirmative defense. 351 by problem at 27. It Or sets about to fix that resort ORCP provides: B, 12 which every stage disregard shall, “The action, court anof pleadings proceedings error or defect which rights party.” does affectthe substantial ofthe adverse majority resulting id. at
See transformation, 23. The is untroubled concluding that Combined con- effectively tribution claim mative “fulfilled the function of an affir- put defense, viz., on notice of the the- ory comprising and facts the defendant’s defense.” at 26.1 Id. again disagree.
33 IS PRECLUDED FROM CONSTRUING THIS COURT FOR TRANSPORT’SCROSS-CLAIM COMBINED DEFENSE CONTRIBUTION AS AN AFFIRMATIVE majority’s important to understand that It is matter 12 in this case is incorrect as a reliance on ORCP Oregon general Oregon Civil rule, As a Rules of law. applicable only In Lincoln are in the trial courts. Procedure City 105, 110, P3d 521 Portland, v. 335 Or 59 Loan Co. “ (2002), only apply in trial this court held that ” ‘the ORCP McCarthy Dry, (quoting Oregon Inc., 327 v. Freeze courts.’ recons, 185, 327 Or 84, 89, 1200, Or 957 P2d adh’d to on (1998)); P2d 1207 see also Robinson Lamb’s Wilsonville (2001) (stating Thriftway, 453, 459, 31 332 Or P3d applied procedure “are to to actions in the rules ofcivil rules be courts”) original). Although (emphasis in rules of civil trial procedure pro- incorporated into this court’s
have indeed been expressly framework, mak- cedural we have done so after ing provisions part Oregon Appellate those Rules of e.g., (expressly adopting pro- See, Procedure. ORAP 1.40 17); (doing visions of ORCP ORAP 8.05 the same for ORCP 34). yet regard have to do the same with to ORCP 12. We proper
Even if it was for the court to invoke ORCP majority 12 B in this case—and it is not—the nevertheless misapplies problem plain text, the rule here. Under its
to
12 B
be corrected
ORCP
must constitute
present
defect”;
an
neither are
here. In
“error
Mulier v.
(2001),
Johnson,
complete right plead attorney failure to to fees not an “error or defect” under ORCP B: explained, “Aswe have the words ‘error’and ‘defect’ legislature’s party ORCP12B reflectthe attempt intent that a must comply mandatory requirements with the ofthe procedure party
rules of civil provisions if that is to from the benefit allege complete 12 B. A of ORCP failure C(2)(b) attorney right to in a motion under ORCP 68 fees attempt comply require- doesnot ments with the demonstrate that rule.” added). (internal emphasis omitted; citation Id. at 350 present party evidence true in this case. If a wishes same is of comparative negligence defense, an affirmative ORCP abject pleading. requires One’s failure to do so 19 B such *27 things might categorized many makes but, as Mulier be clear, it a defect that can be corrected ORCP B. is not sum, the trial court did not err this matter. Transport’s cross-claim for contribution was not brought, at the time it was and the trial court cor- relevant rectly granted plaintiffs ORCP 12 A motion to strike. While liberally pleadings “[a]ll directs that shall be construed with justice major- parties,” a view of substantial between the ity has resurrected and rewritten the stricken at here —not construed it—in order to make out an affir- issue majority doing in this matter. The errs in mative defense so. Consequently, judgment. I would affirm the respectfully above, I
For the reasons cited dissent. joins dissenting opinion. Durham, J., this