Argued and submitted April 22, 1983Reversed and remanded June 8, 1983 Reconsideration denied July 22, petition for review denied September 20, 1983 ( 295 Or. 631) Appeal from Circuit Court, Jackson County. L.A. Merryman, Judge.
The court noted, "[t]his is not a case where agency error caused the petitioner to lose a benefit to which she was otherwise entitled" and declined to estop the agency from seeking reimbursement. Thrift, at 17; accord, Howard v. Employment Div., 63 Or. App. 227, 232-33, 663 P.2d 429, 432, review denied, 295 Or. 631 (1983); see Allen v.Neal, 217 Tenn. 181, 396 S.W.2d 344 (1965) (holding that party cannot establish injury simply by not receiving a benefit that he had no right to receive in the first place).
We agree. See Huff v. Shiomi, 73 Or. App. 605, 609, 699 P.2d 1178 (1985) ("The purposes and elements of statutory contribution and of common law indemnity differ in some respects; however, there is no logical reason why their common requirement that the claimant and the person from whom relief is sought both be liable to the same third party should apply differently in the two contexts."); see also Transport Indemnity Co. v. BBS, Inc., 63 Or. App. 392, 399 n 7, 664 P.2d 1115, rev den 295 Or. 631 (1983) (analyzing and remanding contribution and indemnity claims together). The Supreme Court first considered the meaning of the statutory phrase "liable in tort" in Blackledge v. Harrington, 291 Or. 691, 634 P.2d 243 (1981).
However, when joint tortfeasors settle and extinguish all claims and the settlement agreement does not provide any basis for determining that the one claiming contribution has discharged a common liability, contribution is barred. See Transport Indemnity Co. v. BBS, Inc., 63 Or. App. 392, 398, 664 P.2d 1115, rev den 295 Or. 631 (1983). Aetna did not settle the claims against all tortfeasors alone.
Petitioner assigns five errors to LCDC's conclusion that the county's plan and ordinances comply with Goal 4. It argues first that Goal 4 prohibits all nonforest uses on forest lands and that the county's provisions relating to nonforest dwellings therefore violate the goal ipso facto. We rejected essentially the same contention in Publishers Paper Co. v. Benton County, 63 Or. App. 632, 665 P.2d 357, rev den 295 Or. 631 (1983). We decline petitioner's invitation to overrule that decision.
"* * * * * "Both Miller and Transport Indemnity [ Co. v. BBS, Inc., 63 Or. App. 392, 664 P.2d 1115, rev den 295 Or. 631 (1983)] tell us that, although a determination of a third-party defendant's liability for a claim for contribution requires an evaluation of whether it would have been liable to the original plaintiff, nothing in the statutory scheme of ORS 18.440 to 18.460 requires that the original plaintiff be able to maintain an action in tort against the third-party defendant at the time the contribution action is commenced. ORS 30.275 bars only those 'actions' for which no notice of claim has been given. Because TRK provided the required notice of its claim, it is entitled to maintain its third-party action." 71 Or App at 192-93.
The last sentence of ORS 18.440(1) provides: "There is no right of contribution from a person who is not liable in tort to the claimant." In Transport Indemnity Co. v. BB S, Inc., 63 Or. App. 392, 664 P.2d 1115, rev den 295 Or. 631 (1983), an insurer for one of the defendants paid the plaintiff's claim in full, obtained a judgment of dismissal against all of the defendants and then sought contribution from the other defendants. In concluding that the insurer was entitled to maintain the contribution action, this court specifically rejected the defendants' contention that, because a judgment had been entered dismissing them, they could no longer be considered "liable" to the plaintiff within the meaning of ORS 18.440(1).
A8105-02796; A24520 295 Or. 631Argued and submitted March 28, 1983
Argued and submitted May 16, 1983Reversed and remanded June 15, 1983 Reconsideration denied July 29, petition for review denied September 20, 1983 ( 295 Or. 631) Appeal from District Court, Multnomah County, Aaron Brown, Jr., Judge.
Argued and submitted July 30, 1982Affirmed May 11, 1983 Reconsideration denied July 29, petition for review denied September 20, 1983 ( 295 Or. 631) Appeal from Circuit Court, Multnomah County, John C. Beatty, Jr., Judge.