Fireman's Fund Insurance Company v. United States Fidelity and Guaranty Company et al, No. 3:2009cv00263 - Document 17 (D. Or. 2009)

Court Description: ORDER: Opinion & Order Denying Defendants' Motion to Dismiss 3 . Signed on July 29, 2009 by Magistrate Judge Dennis J. Hubel. (hubel2, )

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Fireman&#039;s Fund Insurance Company v. United States Fidelity and Guaranty Company et al Doc. 17 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 11 FOR THE DISTRICT OF OREGON FIREMAN'S FUND INSURANCE COMPANY, 12 Plaintiff, 13 v. 14 15 16 17 UNITED STATES FIDELITY AND GUARANTY COMPANY; ST PAUL MARINE AND FIRE INSURANCE COMPANY; TRAVELERS CASUALTY AND SURETY COMPANY; and TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, 18 Defendants. 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-263-HU OPINION & ORDER James M. Hillas DUNN CARNEY ALLEN HIGGINS & TONGUE LLP 851 S.W. Sixth Avenue, Suite 1500 Portland, Oregon 97204 22 23 24 25 Christopher M. Caputo LESS GETZ & LIPMAN, LPC 100 Peabody Place, Suite 1150 Memphis, Tennessee 38103 Attorneys for Plaintiff 26 / / / 27 / / / 28 / / / 1 - OPINION & ORDER Dockets.Justia.com 1 2 3 4 5 6 Nicholas L. Dazer BULLIVANT HOUSER BAILEY PC 300 Pioneer Tower 888 S.W. Fifth Avenue Portland, Oregon 97204-2089 Attorney for Defendants HUBEL, Magistrate Judge: Plaintiff Fireman's Fund Insurance Company brings this 7 indemnity, contribution, and subrogation action against defendants 8 United States Fidelity & Guaranty Company, St. Paul Marine & Fire 9 Insurance Company, Travelers Casualty 10 Travelers Property Casualty Insurance 11 "Travelers"). 12 common law indemnity and equitable contribution. & Surety Company Company, and (collectively Defendants move to dismiss plaintiff's claims for 13 All parties have consented to entry of final judgment by a 14 Magistrate Judge in accordance with Federal Rule of Civil Procedure 15 73 and 28 U.S.C. § 636(c). 16 17 18 I deny the motion. BACKGROUND The following facts are taken from the First Amended Complaint. 19 Grayco Resources, Inc. owned certain real property located at 20 737 SW 17th Avenue in Portland (referred to as "the Project"). 21 From July 1, 1997, to June 30, 2000, Grayco obtained property 22 insurance coverage for the Project in three separate policies: (1) 23 from July 1, 1997 to June 30, 1998; (2) from July 1, 1998, to June 24 20, 1999; and (3) from July 1, 1999, to June 30, 2000. 25 referred to separately in the singular ("Travelers Policy") and 26 collectively in the plural ("Travelers Policies"). 27 28 Each is Plaintiff began insuring the Project at the end of the final Travelers Policy on July 1, 2000. 2 - OPINION & ORDER 1 The Project was a five-story apartment building that was 2 substantially completed in early 1998. 3 water intrusion was observed inside the building which resulted in 4 the need for costly periodic maintenance of the Project. 5 Project's general contractor and design team began efforts to 6 correct the water intrusion problem. 7 Following its completion, The Grayco hired a research and design firm to conduct a pervasive 8 investigation of the Project. 9 Grayco in August 2003. The firm reported its findings to The findings showed that water damage had 10 occurred since construction and had deteriorated portions of the 11 Project to the point of imminent collapse. 12 Grayco notified Travelers and plaintiff of the results of its 13 investigation and made claims for the loss associated with the 14 property 15 policies. Travelers refused and failed to pay Grayco for the loss. 16 In February 2005, plaintiff paid Grayco $589,000 on account of damage under the Travelers policies and plaintiff's 17 the loss. And, in connection with the loss, plaintiff incurred 18 legal expenses of $18,319.24. 19 by plaintiff in connection with the loss is $607,319.24 (referred 20 to as "Fireman's Fund Payment"). As a result, the total amount paid 21 Plaintiff alleges that the claim it paid was a continuing loss 22 that had accrued during the period of time that Travelers insured 23 the Project, even though the extent of the damage suffered from the 24 continuing loss was not discovered until Grayco received the result 25 of its investigation in August 2003. 26 contends, Travelers is legally required to reimburse plaintiff for 27 those monies that plaintiff paid to Grayco, their mutual insured, 28 on behalf of Travelers. 3 - OPINION & ORDER As a result, plaintiff 1 STANDARDS 2 On a motion to dismiss, the court must review the sufficiency 3 of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 4 All allegations of material fact are taken as true and construed in 5 the light most favorable to the nonmoving party. 6 Ass'n, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120 7 (9th Cir. 2002). 8 allegations as truthful. 9 (9th Cir. 1992). American Family However, the court need not accept conclusory Holden v Hagopian, 978 F.2d 1115, 1121 10 A motion to dismiss under Rule 12(b)(6) will be granted only 11 if plaintiff alleges the "grounds" of his "entitlement to relief" 12 with nothing "more than labels and conclusions and a formulaic 13 recitation of the elements of a cause of action[.]" 14 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation 15 omitted). 16 relief above the speculative level, . . . on the assumption that 17 all the allegations in the complaint are true (even if doubtful in 18 fact)[.]" Id. at 1965 (citations and internal quotations omitted). 19 DISCUSSION 20 "Factual allegations must be enough to raise a right to Based on the facts recited above, plaintiff brings three 21 claims: 22 equitable subrogation. 23 and contribution claims. 24 I. 25 Bell Atlantic common law indemnity, equitable contribution, and Defendants move to dismiss the indemnity Indemnity Claim The allegations specifically in support of the indemnity claim 26 are as follows: during the time that the Project was insured under 27 the Travelers Policies, Grayco incurred property damage to the 28 Project, which resulted in financial loss. 4 - OPINION & ORDER Subsequently, Grayco 1 made a claim against Travelers under the Travelers Policies for the 2 loss, but Travelers wrongfully and without justification failed to 3 pay Grayco its claim arising out of such property damage. 4 Am. Compl. at ¶ 13. First 5 Travelers was under a continuing obligation to reimburse 6 Grayco for the property damage to the Project that accrued during 7 the term of the Travelers Policies even at such time that Fireman's 8 Fund commenced to insure the Project. 9 full amount of Grayco's property damage claim in connection with 10 the Project, plaintiff discharged both its and Travelers' duties to 11 Grayco relative to the property damage claim. Id. at ¶ 14. By paying the Id. at ¶ 15. 12 Because plaintiff paid money to Grayco for the benefit of 13 Travelers and discharged Travelers' liability under the terms and 14 conditions of the Travelers Policies, plaintiff contends it is 15 entitled to indemnification from Travelers for the amount of its 16 payment to Grayco on behalf of Travelers in an amount to be 17 determined at trial, but not less than $220,000. 18 Id. at ¶ 16. Defendants make two arguments in support of dismissing this 19 claim. First, they argue that plaintiff has not alleged that it 20 shared a "common," yet alone "identical" duty Travelers owed to 21 Grayco. 22 as between plaintiff and Travelers, that Travelers should pay all 23 of the monies that plaintiff paid to Grayco. Second, defendants contend that plaintiff does not claim, 24 Defendants rely solely on Safeco Insurance Company v. Russell, 25 170 Or. App. 636, 13 P.3d 519 (2000), in support of their first 26 argument. 27 accident with the defendant. 28 coverage of the insurance policy, the plaintiff paid its insureds There, the plaintiff's insureds were in an automobile 5 - OPINION & ORDER Under the uninsured motorist (UM) 1 for their damages and injuries as a result of the accident. 2 plaintiff then sued the defendant for common-law indemnity. The 3 In its complaint, the plaintiff alleged that it was entitled 4 to indemnity because the defendant's "'fault is active, primary and 5 of a different character than the liability of plaintiff to [its 6 insureds], which is based on contract.'" 7 520 (quoting Complaint; ellipsis and brackets omitted). 8 Complaint also alleged that in "'comparing the fault or liability 9 of the parties, it is such that law and equity should require 10 defendant 11 [plaintiff's 12 omitted). 13 to indemnify plaintiff insureds].'" Id. for Id. at 638, 13 P.3d at the (quoting sums it complaint, paid The to brackets The trial court granted the defendant's motion to dismiss for 14 failure to state a claim. The court reasoned that the plaintiff 15 failed to allege facts sufficient to state a cause of action for 16 common law indemnity because the plaintiff failed to allege that 17 the plaintiff and the defendant had a common duty to a third party 18 in either tort or contract. Id. 19 On appeal, the parties agreed that because the plaintiff did 20 not file the action against the defendant until more than five 21 years after the accident, the basis for the plaintiff asserting an 22 indemnity claim was the plaintiff's need to assert a claim that was 23 not subject to the two-year statute of limitations that barred any 24 subrogated claim for negligence that the plaintiff might have had 25 against the defendant. 26 27 28 Id. at 639, 13 P.3d at 520. At the beginning of its discussion, the appellate court described the plaintiff's argument on appeal as follows: Plaintiff argues that the trial court erred in holding 6 - OPINION & ORDER 1 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. 2 3 4 5 Id. 6 7 The court then stated the standard for a common-law indemnity claim: 8 12 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 P.2d 138 (1972) (relying on rule stated in Restatement of the Law of Restitution § 76 at 331 (1937)). 13 * * * 14 [I]t is not enough that the parties are each liable to plaintiff's insureds. In order to trigger a right of indemnity, their liability must also depend on a common duty. The test stated in Fulton must be understood accordingly. 9 10 11 15 16 17 Id. at 639, 640, 13 P.3d at 520, 521. 18 The court of appeals concluded that the common-law indemnity 19 claim should be dismissed for failure to meet the second element- 20 that 21 insureds[.]" 22 the 23 principles of contract which were distinct from the duty of care 24 that the defendant owed the insureds in tort. 25 such as plaintiff is entitled to subrogation against an alleged 26 tortfeasor based on the contract with its insured." 27 without a common duty, no common law indemnity claim could be 28 sustained. "the parties did not owe a common Id. at 641, 13 P.3d at 521. plaintiff's relationship 7 - OPINION & ORDER to its duty to plaintiff's The court explained that insureds Id. was based on "A UM insurer Id. But, 1 Based on Safeco, defendants here argue that parties to a 2 common-law indemnity claim must owe an "identical" duty to a third 3 party. 4 from the court's description of the plaintiff's argument in Safeco, 5 and is not the law which requires a "common" obligation, not an 6 identical one. 7 Plaintiff responds that the "identical" language is taken I agree with plaintiff. 8 a common duty is required. 9 the court described The law, as stated in Safeco, is that the As can be seen from the quotes above, plaintiff's argument using the term 10 "identical." Although the court stated that the trial court did 11 not err, the use of the term "identical" was a quote from the 12 plaintiff's argument. 13 the Safeco 14 identical ones. court Every affirmative statement of the law by includes a reference to common duties, not No other case supports defendants' position. 15 I reject defendants' argument that the parties in a common law 16 indemnity action must have owed identical duties to a third party. 17 It is sufficient that they owed a common obligation. 18 Plaintiff argues that both it and Travelers owed a common 19 obligation with respect to the Grayco loss because they both 20 insured the Property against risk of such loss. Plaintiff contends 21 that as stated in its First Amended Complaint, the loss suffered by 22 the insured was of a continuing nature. 23 ("claim paid by [plaintiff] was a continuing loss . . . "). 24 Plaintiff states that the state of imminent collapse associated 25 with the Project at the time it compensated the insured was a 26 result of damage that accrued over a period of years, during which 27 both Travelers and plaintiff insured the Property. 28 further states that both it and Travelers owed an obligation to the 8 - OPINION & ORDER First Am. Compl. at ¶ 11 Plaintiff 1 insured to cover the loss and because the loss suffered was a 2 result 3 throughout both insurer's policy periods, the loss that plaintiff 4 discharged was "common" to both Travelers and plaintiff. 5 at ¶ 8 (water damage had occurred since construction and had 6 deteriorated portions of the Project to the point of imminent 7 collapse); Id. at ¶ 15 (by paying the full amount of Grayco's 8 property damage claim, plaintiff discharged both its and Travelers' 9 duties to Grayco relative to the property damage claim). of indivisible and continuing injury that occurred See Id. 10 Although the Amended Complaint does not use the term "common 11 duty," the allegations here suffice because plaintiff alleges that 12 damage was ongoing, occurring during each policy's period, and that 13 both plaintiff and Travelers had duties to Grayco relative to the 14 damage caused by the water intrusion. 15 Next, defendants argue that the indemnity claim must be 16 dismissed because plaintiff fails to seek all of the money it paid 17 to Grayco. Defendants contend that by seeking only $220,000 out of 18 the $607,319.24 it paid, the claim cannot be considered one for 19 indemnity 20 proposition." 21 As which defendants describe as "an all or nothing Defts' Mem. at p. 5. indicated above, the third element for a common-law 22 indemnity claim requires that "as between the claimant and the 23 defendant, the obligation should be discharged by the latter." 24 Fulton Ins., 261 Or. at 210, 493 P.2d at 141. 25 the use of the words "the obligation," with the definite article 26 preceding the singular noun, means that the claim must relate to a 27 singular, 28 plaintiff seeks only part of the payment it made to Grayco, whole obligation. 9 - OPINION & ORDER Defendants Defendants note that argue that because 1 plaintiff cannot establish a common law indemnity claim. 2 Generally, I agree with defendants' understanding of the law. 3 Oregon cases have clearly held that "[i]ndemnity is the shifting of 4 responsibility from the shoulders of one person to another." Piehl 5 v. The Dalles General Hosp., 280 Or. 613, 621, 571 P.2d 149, 153 6 (1977) (internal quotation omitted); Burton v. Mackey, 104 Or. App. 7 361, 364, 801 P.2d 865, 866 (1990) ("Indemnity shifts the loss to 8 one who ought, in equity, to bear it."); see also Star Mountain 9 Ranch v. Paramore, 98 Or. App. 606, 609, 780 P.2d 758, 759 (1989) 10 (noting that in Fulton, the court explained that the claimant in a 11 common-law indemnity claim, while legally liable to the injured 12 third 13 liability, or must have "passive" as opposed to "active" fault). 14 party, must have "secondary" as opposed to "primary" In this case however, the issue is not a single accident tort 15 claim, nor is it a single breach of a single contractual 16 obligation. 17 raises the issue of continuing occurrences, arising from leaks and 18 damage from leaks. 19 "primarily" liable for the entire sum paid by plaintiff to Grayco, 20 defendant may indeed be primarily liable for segregable portions of 21 the damage and when viewed in such a manner, equitable principles 22 may justify shifting the entire responsibility for that portion to 23 defendant as opposed to plaintiff. Rather, the water intrusion suffered by the Property In such cases, while defendant may not be 24 For example, as I explained in oral argument on the motion, 25 consider three hypothetical pieces of sheetrock in the Property 26 that sustained damage as a result of water intrusion. 27 piece was damaged only by a leak that first occurred during a 28 Travelers' policy period, 10 - OPINION & ORDER and the leak was The first repaired before 1 plaintiff's policy period commenced. However, the damage from that 2 leak was not repaired and this piece of sheetrock continued to 3 deteriorate further, during the plaintiff's policy period. 4 The second piece of sheetrock was damaged by a leak that 5 started during a Travelers policy period, and continued into the 6 period when plaintiff's policy was in force. 7 damage in both policy periods. 8 period required replacement of the piece of sheetrock without 9 consideration of the damage sustained during the other policy 10 11 12 13 This leak caused The damage during either policy period. The third piece of sheetrock was damaged as a result of a leak that did not occur until plaintiff's policy was in effect. The law regarding common-law indemnity would not allow 14 indemnity for the damage to the third piece of sheetrock. 15 second 16 contribution, but not indemnity. But, the first piece of sheetrock 17 suggests 18 appropriate. 19 between plaintiff and defendants, equity would view defendants as 20 primarily liable. 21 piece of that sheetrock a claim would for be suitable common-law for indemnity a claim would The of be The insurers owed a common duty to the insured and as The facts at issue here indicate that there may well be some 22 causes and some damages/losses 23 defendants owed a common duty to Grayco, and for which plaintiff or 24 defendants may be viewed as primarily or secondarily liable. 25 plaintiff noted during oral argument, it seeks "not less than 26 $220,000," and thus, it is not restricting its damages request to 27 only a portion of what it paid to Grayco. 28 alleged in the Amended Complaint show that plaintiff may be able to 11 - OPINION & ORDER for which both plaintiff and As Because the facts as 1 establish that some portion of the money it paid arose out of a 2 common duty owed to Grayco by plaintiff and defendants, but that as 3 between plaintiff and defendants, defendants should be seen as 4 primarily liable, I do not dismiss the common-law indemnity claim. 5 II. Equitable Contribution Claim 6 Plaintiff's second claim is for equitable contribution. 7 support of this claim, plaintiff makes the following allegations: 8 during the 9 Policies, Grayco incurred property damage to the Project which time the Project was insured under the In Travelers 10 resulted in financial loss. 11 against Travelers under the Travelers Policies for the loss, but 12 Travelers wrongfully and without justification failed to pay Grayco 13 its claim arising out of such property damage. 14 ¶ 18. 15 obligation to reimburse Grayco for the property damage to the 16 Project that occurred during the term of the Travelers Policies 17 even at such time that plaintiff commenced to insure the Project. 18 Id. 19 connection with the Project, plaintiff discharged both its and 20 Travelers' duties to Grayco relative to the property damage claim. 21 Id. at ¶ 20. 22 benefit of Travelers for a loss that should have been paid by 23 Travelers under the Travelers Policies, plaintiff is entitled to 24 equitable contribution from Travelers on account of its payment to 25 Grayco in an amount to be determined at trial, but not less than 26 $220,000. at Subsequently, Grayco made a claim First Am. Compl. at Plaintiff alleges that Travelers was under a continuing ¶ 19. By paying Grayco's property damage claim in Because plaintiff paid money to Grayco for the Id. at ¶ 21. 27 Defendants move to dismiss this claim because, defendants 28 contend, plaintiff was required, under Oregon Revised Statute § 12 - OPINION & ORDER 1 (O.R.S.) 31.8101, to commence the action within two years of the 2 date that payment was made. 3 Amended Complaint, payment to Grayco was made in February 2005. 4 Defendants contend that the statute of limitations on plaintiff's 5 contribution claim expired in February 2007. 6 filed until January 2009, almost two years beyond the limitations 7 period. 8 must be dismissed. 9 10 11 12 According to paragraph 10 of the First This action was not Thus, defendants argue, the equitable contribution claim The statute, appearing in O.R.S. Chapter 31 which is entitled "Tort Actions," provides, in pertinent part: If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, the right of contribution of that tortfeasor is barred unless the tortfeasor has either: 13 (a) Discharged by payment the common liability within the statute of limitations period applicable to the claimant's right of action against the tortfeasor and has commenced action for contribution within two years after payment; or 14 15 16 (b) Agreed while action is pending against the tortfeasor to discharge the common liability and has within two years after the agreement paid the liability and commenced action for contribution. 17 18 19 20 O.R.S. 31.810(4). I agree with plaintiff that O.R.S. 31.810(4) does not apply to 21 plaintiff's contribution claim in this case. This case has no 22 relationship to a tort claim, either in the underlying relationship 23 between plaintiff, defendants, and Grayco, or between plaintiff and 24 defendants as consecutive insurers. The statute of limitations for 25 a claim by Grayco as to its insurance contracts, would be the six- 26 27 1 28 Defendants mistakenly refer to O.R.S. 18.450. In 2003, the Oregon Legislature renumbered that statute to O.R.S. 31.810. 13 - OPINION & ORDER 1 year statute applicable to contract claims. O.R.S. 12.080(1). The 2 tortfeasor contribution statute, by appearing in a chapter bearing 3 the title "Tort Actions," and by using terms such as "injury," 4 "wrongful death," and "tortfeasor," is limited to tort claims. 5 This is not such a case. 6 Auto Ins. Co., No. 06-35913, 2008 WL 4946279, at *2 (9th Cir. Nov. 7 6, 2008) (unpublished) ("Insurers that insure the same risk under 8 separate policies with the insured are not joint tortfeasors or co- 9 obligors").2 10 See Fireman's Fund Ins. Co. v. Oregon I further agree with plaintiff that this claim is equitable in 11 nature. See Carolina Cas. Ins. Co. v. Oregon Auto Ins. Co., 242 12 Or. 407, 417, 408 P.2d 198, 203 (1965) ("[a]n insurer's rights 13 against its co-insurer for contribution arises out of the equitable 14 doctrine which holds that one who pays money for the benefit of 15 another is entitled to be reimburse[d]. . . . Such rights do not 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Defendants chide plaintiff for citing this unpublished case. In the Ninth Circuit, however, unpublished dispositions issued after January 1, 2007, may be cited, though they are deemed "not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion." Ninth Cir. Rule 36-3; see also Fed. R. App. P. 32.1 (prohibiting courts from prohibiting or restricting the citation of federal judicial opinions that have been designated unpublished after January 1, 2007). Here, this recent statement of the relevant law by the Ninth Circuit is appropriately cited, even if it may not be deemed "precedent." Moreover, I reject defendants' argument that this statement of the law is specific to the environmental claim contribution statute, O.R.S. 465.480(4). While the court was analyzing the right to contribution in that particular statute, its statement regarding an insurer's rights against a co-insurer was a general statement of the law and was not restricted to the environmental claim context. 14 - OPINION & ORDER 1 arise by way of subrogation.") (citations omitted)3; see also TIG 2 Ins. 3 24051560, at *4 (D. Or. Mar. 24, 2003) (noting, in a case involving 4 underlying allegations of sexual abuse, that Oregon law permits an 5 insurer 6 respective share of a covered loss, and stating that "[t]his 7 equitable right of contribution among consecutive insurers is 8 beyond dispute"). 9 Co. v. to Travelers seek Ins. Co., contribution No. from CV-00-1780-ST, another insurer 2003 for WL its As an equitable claim, plaintiff's contribution claim is 10 subject to the doctrine of laches. 11 211, 215, 98 P.3d 392, 395 (2004) ("A claim in equity is subject to 12 the doctrine of laches, which dictates that a party may not delay 13 in asserting a claim for an unreasonable amount of time after 14 obtaining full knowledge of the relevant facts when the delay 15 results in substantial prejudice to the opposing party."). 16 The laches inquiry looks Frasier v. Nolan, 195 Or. App. at whether (1) the plaintiff 17 unreasonably delayed its claim; (2) "with full knowledge of all 18 relevant 19 prejudice to the defendant that it would be inequitable for the 20 court to grant relief to the plaintiff. 21 180 Or. App. 181, 185, 42 P.3d 359, 3262 (2002). "Courts often 22 look to 23 presumptively reasonable period within which one may file a claim to facts"; an and (3) analogous which statute resulted of in such substantial In re Marriage of Menard, limitation define a 24 3 25 26 27 28 I attribute the Carolina Casualty's later statement that "[t]his is a law action," to be a description of how the court viewed the case for purposes of disposition on appeal. Given the context in which the statement was made, this is the most reasonable explanation for the court's statement which is at odds with the court's preceding explanation of the equitable origins of an insurer's rights to seek contribution from a co-insurer. 15 - OPINION & ORDER 1 in equity." Frasier, 195 Or. App. at 215, 98 P.3d at 395. 2 Plaintiff argues that O.R.S. 12.080, providing a six-year 3 statute of limitations for actions upon a "contract or liability, 4 express or implied," is most analogous to an equitable contribution 5 claim. 6 P.2d 1183 (1972), the Oregon Supreme Court held that the six-year 7 statute of limitations for contracts applied to a common law 8 indemnity claim. 9 rejected the defendants' argument that the two-year tort statute 10 11 Plaintiff notes that in Owings v. Rose, 262 Or. 247, 497 should apply. Id. at 261-62, 497 P.2d at 1189-90. The court Id. Plaintiff contends that as with common law indemnity, equity 12 is the guiding principle behind equitable contribution. Plaintiff 13 notes that O.R.S. 12.080 applies to all actions relating to implied 14 "contracts or liabilities." 15 common law indemnity, creates an implied liability on the part of 16 a nonpaying co-insurer, plaintiff argues that the six-year period 17 of limitation is far more applicable than the two-year period 18 imposed by O.R.S. 31.810. Because equitable contribution, like 19 Defendants contend that the statute of limitations that is 20 most analogous to the equitable contribution claim is the statute 21 set for statutory contribution, not the statute set for contract 22 claims. 23 doctrine of laches, the applicable analogous two-year statute 24 creates a rebuttable presumption of unreasonableness by plaintiff 25 in delaying the filing of the action. 26 plaintiff has not provided any allegations that could rebut the 27 conclusion that its delay was unreasonable. 28 delay between plaintiff's incursion of loss and the filing of the O.R.S. 31.810(4). 16 - OPINION & ORDER Defendants argue that under the Defendants contend that Given the four-year 1 lawsuit, defendants argue that any reasonable jury should find that 2 defendant suffered prejudice. 3 I agree with plaintiff. For the reasons explained above, 4 O.R.S. 31.810 is not relevant to this claim, either as a statute of 5 limitations applied directly to the claim, or as a "most analogous" 6 statutes in a laches analysis. 7 O.R.S. 12.080. 8 create a presumption of unreasonableness. 9 defines a presumptively reasonable period of time. And, any issues 10 of reasonableness in the time of filing are inappropriate to 11 address on a Rule 12(b)(6) motion to dismiss. 12 Commercial Credit Bus. Loans, 301 Or. 407, 420, 723 P.2d 996, 1003 13 (1986) ("What is an unreasonable length of time is determined by 14 examining all the circumstances."). 15 any 16 Accordingly, 17 contribution claim. substantial I Instead, the applicable statute is Because this is a six-year statute, it does not prejudice to deny motion 18 the To the contrary, it See Mattson v. Similarly, the inquiry into defendants to is a dismiss factual the one. equitable CONCLUSION 19 Defendants' motion to dismiss (#3) is denied. 20 IT IS SO ORDERED. 21 Dated this 29th day of July , 2009. 22 23 24 /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge 25 26 27 28 17 - OPINION & ORDER

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