Smith v. Urich, CV-0342

• Decision Date: 22 October 1997
• Docket Number: CV-0342
• Citation: 947 P.2d 1125,151 Or.App. 40
• Parties: Kenneth H. SMITH, Plaintiff, v. Dorothy L. URICH, individually; Dorothy L. Urich, udt as trustee of the Dorothy L. Urich Trust; and Corner Drug, Inc., Defendants. CORNER DRUG, INC., Cross-claim Plaintiff-Respondent, v. Dorothy L. URICH, individually; and Dorothy L. Urich udt as trustee of the Dorothy L. Urich Trust, Cross-claim Defendants-Appellants. 95-; CA A95143.
• Court: Oregon Court of Appeals

Page 1125

947 P.2d 1125

151 Or.App. 40

Kenneth H. SMITH, Plaintiff, v. Dorothy L. URICH, individually; Dorothy L. Urich, udt as

trustee of the Dorothy L. Urich Trust; and Corner

Drug, Inc., Defendants.

CORNER DRUG, INC., Cross-claim Plaintiff-Respondent, v. Dorothy L. URICH, individually; and Dorothy L. Urich udt as

trustee of the Dorothy L. Urich Trust, Cross-claim

Defendants-Appellants.

95-CV-0342; CA A95143.

Court of Appeals of Oregon.

Argued and Submitted July 25, 1997.

Decided Oct. 22, 1997.

Stephen E. Lawrence, Portland, argued the cause and filed the briefs for appellants.

Peter R. Chamberlain, Portland, argued the cause for respondent. With him on the brief was Bodyfelt, Mount, Stroup & Chamberlain.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

Urich, ¹ a codefendant in this claim for negligence, appeals from the grant of third-party plaintiff Corner Drug's motion for summary judgment on its cross-claim for indemnity. ORCP 47. We reverse.

Urich is the owner of real property. Corner Drug leased the property from Urich and operated a business that was open to the public. Smith, Corner Drug's business invitee, filed an action against both Urich and Corner Drug in which he alleged that he had sustained personal injuries when he tripped on a defect in the sidewalk outside the business and that all defendants were negligent. Corner Drug answered the complaint and filed a cross-claim against Urich in which it alleged:

"4.

"That defendant Corner Drug occupied the premises owned by defendant Urich pursuant to the terms of a lease * * *.

"5.

"Pursuant to the terms of the lease between defendant Corner Drug and defendant Urich, Section 4, defendant Urich expressly agreed to maintain the sidewalks on the premises leased to defendant Corner Drug.

"6.

"That plaintiff's complaint alleges his injury occurred as a result of a defect in the sidewalk, and that as between defendant Urich and defendant Corner Drug, defendant Urich is primarily liable due to her express assumption of the duty to maintain the sidewalk. Should judgment be rendered against defendant Corner Drug, said defendant is entitled to indemnity from defendant Urich for any amount it is obligated to pay."

In her answer to the cross-claim, Urich admitted paragraphs 4 and 5 but denied paragraph 6.

Corner Drug moved for partial summary judgment on the cross-claim, and in its motion stated:

"Although there was a lease between the defendants, no written provision was made for indemnifying [Corner Drug] for any failure by [Urich] to comply with the terms of the lease."

In other words, Corner Drug conceded, for purposes of its motion, that the provision in its lease with Urich did not operate as a contract of indemnity. Nonetheless, Corner Drug asserted that partial summary judgment was appropriate

"on the grounds [sic ] that it [was] entitled to common law indemnity from codefendant Urich for any judgment rendered against Corner Drug in this case and for Corner Drug's defense costs." (Emphasis supplied.)

As evidence in support of its motion, Corner Drug offered the affidavit of its president and a copy of its lease with Urich. Urich offered no evidence but opposed the motion on the ground that there were "genuine issues as to material facts regarding responsibility, as between [Urich and Corner Drugs], for the injuries of plaintiff."

The trial court granted Corner Drug's motion for partial summary judgment and entered an order to that effect. Thereafter, a settlement was reached with Smith. As a result, Smith's claims against Corner Drug and Urich were dismissed with prejudice, and the trial court entered judgment in favor of Corner Drug on its cross-claim for indemnity. Urich appeals and assigns error on the ground that "the trial court erred when it determined that Defendant Corner Drug was entitled to common law indemnity and costs of defense as against Defendant Urich." ²

Summary judgment is appropriate under ORCP 47(C) if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47(C) further provides, in part:

"No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment."

In order for Corner Drug to prevail on its motion, the summary judgment record before the trial court must contain some evidence in support of each element of a common-law indemnity claim, and there must be no triable issue for the factfinder regarding that evidence. Seeborg v. General Motors Corporation, 284 Or. 695, 700, 588 P.2d 1100 (1978). In an action for common-law indemnity, the plaintiff must plead and prove:

"1) [A] third party made a claim against him; 2) he reasonably incurred costs in defending or satisfying the claim; and 3) as between the plaintiff and the defendant, the costs incurred ought to be borne by the latter." State Through Dept. of Trans. v. Scott, 59 Or.App. 25, 29, 650 P.2d 158 (1982).

Thus, the issue, as framed by the parties, is whether Corner Drug has met its burden of proving that no triable issue exists with respect to the third element of a common-law indemnity claim, i.e., whether as between Corner Drug and Urich, Urich ought to bear the costs of defense, as well as any potential liability.

In its brief to this court, Corner Drug relies on Kennedy v. Colt, 216 Or. 647, 653, 339 P.2d 450 (1959), in which the Supreme Court stated:

"[W]hether or not indemnity...