FILED: November 1, 2000

SAFECO INSURANCE COMPANY OF AMERICA,
an insurance corporation,

Appellant,

v.

ELLEN RUSSELL,

Respondent.

Appeal from Circuit Court, Clackamas County.

John K. Lowe, Judge.

Argued and submitted October 2, 2000.

Karen O'Kasey argued the cause for appellant. With her on the briefs was Schwabe, Williamson & Wyatt, P.C.

Michael H. Long argued the cause for respondent. With him on the brief was Brown, Roseta, Long, McConville, Kilcullen & Carlson.

Before Landau, Presiding Judge, and Wollheim and Brewer, Judges.

BREWER, J.

Affirmed.

BREWER, J.

The question presented in this case is whether an insurer may assert a common-law indemnity claim against a person whose alleged negligence caused the injuries for which the insurer paid benefits to its insured. The trial court granted defendant's motion to dismiss the insurer's complaint for failure to state a claim. ORCP 21 A(8). We affirm.

We take as true the facts alleged in the complaint and all reasonable inferences that may be drawn from them. Glubka v. Long, 115 Or App 236, 238, 837 P2d 553 (1992). Plaintiff, Safeco Insurance Company of America, provided motor vehicle insurance, including uninsured/underinsured motorist (UM/UIM) coverage, to Rosemary and Robert Waltermire. In October 1993, the Waltermires were injured in a two-vehicle collision while occupying an insured vehicle. The accident was caused by the negligence of defendant, who was the operator of the other vehicle. The Waltermires sued plaintiff for UM benefits on account of damages arising from the collision. Plaintiff settled the Waltermires' claims. Plaintiff then commenced this action in March 1999, more than five years after the accident. Plaintiff alleged that it is entitled to indemnity because defendant's "fault * * * is active, primary and of a different character than the liability of [plaintiff] to the Waltermires, which is based on contract. In comparing the fault or liability of the parties, it is such that law and equity should require [defendant] to indemnify [plaintiff] for the sums it paid to the Waltermires."

Defendant moved to dismiss plaintiff's complaint and also moved for summary judgment. Plaintiff in turn filed its own motion for partial summary judgment. The trial court granted defendant's motion to dismiss the complaint for failure to state a claim, ruled that defendant's summary judgment motion was moot, and denied plaintiff's motion for partial summary judgment. (1) The court reasoned that "[p]laintiff has failed to allege facts sufficient to state a cause of action for common law indemnity; to wit, [p]laintiff has failed to allege that [p]laintiff and [d]efendant have a common duty to a third party in either contract or tort."

On appeal, the parties agree that the incentive underlying plaintiff's choice of an indemnity theory is its need to assert a claim that is not subject to the two-year statute of limitations that has barred any subrogated claim for negligence that plaintiff might have had against defendant. See ORS 12.110(1); Owings v. Rosé, 262 Or 247, 261-63, 497 P2d 1183 (1972) (a claim for common-law indemnity is subject to six-year statute of limitations for contract claims, ORS 12.080, and does not accrue until the indemnitee has paid the loss). Plaintiff argues that the trial court erred in holding that the parties must share "identical legal duties to a third party in order for indemnity to be available." According to plaintiff, such a rule would undermine the equitable nature of common-law indemnity, which is designed to shift a loss to the party who, in fairness, ought to bear it. For the following reasons, we conclude that the trial court did not err.

In an action for common-law indemnity, the claimant must allege and prove that (1) he or she has discharged a legal obligation owed to a third party; (2) the defendant was also liable to the third party; and (3) as between the claimant and the defendant, the obligation should be discharged by the latter. Fulton Ins. v. White Motor Corp., 261 Or 206, 493 P2d 138 (1972) (relying on rule stated in Restatement of the Law of Restitution