The Court has already held that Defendant cannot pursue its comparative fault defense as to Third-Party Defendants. Third-Party Defendant also cites Arch Chemicals, Inc. v. Radiator Specialty Co., 727 F.Supp.2d 997, 1004 (D. Or. 2010). Third Party Def. Mot. 10.
In addition, the language of Rule 15(c)(1)(C)(I) and (ii) suggests this provision applies to claims brought against new defendants rather than claims brought by new plaintiffs. Plaintiff, nevertheless, points to Arch Chemicals, Inc. v. Radiator Specialty Co., 727 F. Supp. 2d 997 (D. Or. 2010), to support his assertion that Rule 15(c)(1)(C) allows relation back of claims brought by newly-added parties. In Arch Chemicals the court concluded, among other things, that even though Rule 15(c) does not by its terms expressly apply to substituted plaintiffs, the approach adopted in Rule 15(c) "extends by analogy to amendments changing plaintiffs."
Dkt. # 140, pp. 2–3. Ordinarily, to sustain an indemnity claim, the indemnitee first must be found liable to the injured third party. If the indemnitee is not found to be negligent or to have caused the third party's injuries, an indemnity claim cannot be sustained. See Arch Chemicals, Inc. v. Radiator Specialty Co., 727 F.Supp.2d 997, 999 (D.Or.2010) (citing Mayorga v. Costco Wholesale Corp., No. CV–06–882, 2007 WL 204017, at *9 (D.Or. Jan. 24, 2007); Irwin Yacht Sales, Inc. v. Carver Boat Corp., 98 Or.App. 195, 198, 778 P.2d 982, 984 (1989); Smith v. Urich, 151 Or.App. 40, 947 P.2d 1125 (1997)). However, when the indemnity claim is for defense costs only, “a plaintiff who has denied liability, but still incurred defense costs is not required to prove that it was actually liable to the third party.”
Zinman v. Wal-Mart Stores, Inc., Case No. 09-02045 CW, 2010 WL 2230449, at *2 (N.D. Cal. June 1, 2010) (applying three-part Rosenbaum test to analyze whether proposed new wage claims in class action related back to date of original complaint); Arch Chems., Inc. v. Radiator Specialty Co., 727 F.Supp.2d 997, 1004 (D. Or. 2010) (“[a]n amendment adding a party plaintiff relates back to the date of the original pleading” when these factors are satisfied). Notice to the opposing party of the existence of the claim is the critical element.
Scott v. Pasadena Unified School Dist., 306 F.3d 646, 662 (9th Cir. 2002). See also ACMG of La., Inc. v. Towers Perrin, Inc., 390 Fed. Appx. 936, 938 (11th Cir. 2010) (applying the Restatement to find that a claim for indemnity arises only when a party pays damages or extinguishes the liability of another); Am. Int'l Ins. Co. of Puerto Rico v. Lampe GMBH, 307 Fed. Appx. 645, 649 (3d Cir. 2009) (applying the Restatement's approach that an indemnity claim exists only when the claimant has "discharge[d] [a liability] by settlement or judgment"); Arch Chem., Inc. v. Radiator Specialty Co., 727 F. Supp. 2d 997, 998 (D. Or. 2010) (referencing the element of indemnity under Oregon law that plaintiff has to discharge a legal obligation owed to a third party); C & E Servs., Inc. v. Ashland Inc., 601 F. Supp. 2d 262, 277 (D. D.C. 2009) (applying the Restatement's approach that a noncontractual indemnity claim does not exist against a person still liable to a third party); Hecht v. Summerlin Life & Health Ins. Co., 536 F. Supp. 2d 1236, 1241 (D. Nev. 2008) (stating that indemnity and contribution claims are not ripe if they are contingent on a finding of liability on the underlying claim); RLI Ins. Co. v. John H. Hampshire, Inc., 461 F. Supp. 2d 364, 369 (D. Md. 2006) (dismissing common-law indemnity/contribution claim as unripe because the claim "is predicated upon a future event which may never occur"); Urological Surgery Prof'l Ass'n v. Fecteau Benefits Grp., 359 F. Supp. 2d 24, 26 (D. N.H. 2005) (dismissing indemnification and contribution claims brought in a separate action where the plaintiff's underlying li
Under Oregon law, "[a] party seeking indemnity must plead and prove three elements: (1) plaintiff has discharged a legal obligation owed to a third party; (2) defendant was also liable to the third party; and (3) as between plaintiff and defendant, the obligation ought to be discharged by the latter, in that plaintiff's liability was ''secondary' or its fault merely ''passive,' while that of the defendant was 'active' or ''primary.'" Arch Chemicals, Inc. v. Radiator Specialty Co., 727 F.Supp.2d 997, 998 (D.Or. 2010) (citing Fulton Ins. v. White Motor Corp., 261 Or. 206, 210, 493 P.2d 138 (1972), superseded in part on other grounds, Waddill v. Anchor Hocking, Inc., 330 Or. 376, 8 P.3d 200 (2000)). Where these elements are met, common law indemnity shifts "the full responsibility for joint liability to an injured third party."