ORCP 22B

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 16.315)

 

      Omissions in complaint in declaratory judgment proceeding are immaterial where omitted allegation is supplied by allegations of cross-complaint. Frontier Ins. Agency, Inc. v. Hartford Fire Ins. Co., 262 Or 470, 499 P2d 1302 (1972)

 

In general

 

      Where codefendants to action brought by third party merely defend against that action and do not assert cross-claims, issue of liability of one defendant to another is not fully and fairly litigated so as to preclude later suit on that issue. LaChance v. Les Schwab Warehouse Center, Inc., 123 Or App 24, 858 P2d 890 (1993), Sup Ct review denied

 

ORCP 22C

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 16.315)

 

      Order dismissing third-party complaint after summary judgment in favor of third-party defendant was not appealable prior to termination of main action. Lulay v. Earle, Wolfer, 278 Or 511, 564 P2d 1045 (1977)

 

      To implead third-party defendant as indemnitor, third-party plaintiff must plead and prove that third-party defendant is liable to plaintiff for damages and that liability of third-party plaintiff is secondary to that of third-party defendant. Page v. Cameron, 33 Or App 441, 576 P2d 837 (1978), Sup Ct review denied

 

In general

 

      Purpose of “may be liable” language in this provision is to promote expeditious and economical adjudication of entire subject matter arising from set of facts, including claims contingent on determination of other issues. Kahn v. Weldin, 60 Or App 365, 653 P2d 1268 (1982), Sup Ct review denied

 

      Where third-party plaintiff was entitled to judgment against third-party defendant in prior action, third-party plaintiff’s failure to seek correction of trial court’s error concerning third-party claim does not avoid res judicata effect of prior judgment. Freeport Investment Co. v. R.A. Gray & Co., 94 Or App 648, 767 P2d 83 (1989), Sup Ct review denied

 

      Where this section would not have permitted plaintiffs to raise rent claim as third-party claim in previous action, final judgment on third-party claim is not res judicata bar to bringing rent claim in later action. Fisher v. Bowman, 97 Or App 357, 776 P2d 575 (1989), Sup Ct review denied

 

      Plaintiff’s assertion of defendant’s claim against third-party defendant did not make prelitigation demand served on defendant effective as demand to third-party defendant. Huntley v. Tri-Met, 210 Or App 269, 149 P3d 1268 (2006)

 

      This provision does not alter substance of contribution claim under Oregon law or indemnity claim under common law. Marton v. Ater Construction Company, LLC, 256 Or App 554, 302 P3d 1198 (2013)

 

      This provision does not create remedy where remedy otherwise does not exist. Marton v. Ater Construction Company, LLC, 256 Or App 554, 302 P3d 1198 (2013)

 

 

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 16.315)

      56 OLR 546 (1977)