specially concurring.
Having fairly strong misgivings that the law of indemnity is being further confused by the Court’s opinion, I have declined to join it. In particular I mention a concern as to the validity of May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975), which was before my time and in which I did not participate. Justice Shepard dissented in that case, and obviously was then troubled as I am today. The Court there reversed Judge Hagan’s conclusion that the action, predicated upon a claim of subrogation, was barred by the statute of limitations. In reversing, the Court relied upon Industrial Indemnity Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970), for the proposition that:
“The common law right of indemnity, on the other hand, refers to those situations where a person who without fault on his part is compelled to pay damages occasioned by the negligence of another." 97 Idaho at 321, 543 P.2d at 1161.
*793I have no problem with that statement as applied to the facts of Industrial Indemnity, but I do have doubts as applied to the May Trucking facts,1 and more so as applied to the facts of the case at bar.
Safeco’s third-party complaint against Ahrendsen was predicated upon an allegation that if it became liable to Mrs. Griggs, then Ahrendsen could be liable to Safeco for indemnity or contribution.
After it paid the Griggs’ judgment, Safe-co referred to its third-party complaint and moved for judgment over against Ahrendsen.
In arguing the motion, Safeco, asked by the trial court the basis of its claim, answered that the “[bjasis is our right of subrogation in the policy itself.” In a brief later filed with the trial court, it continued to urge the subrogation theory, and also advanced the theory of indemnity set forth in May Trucking. Ahrendsen’s “fault” toward Safeco and causing its loss was said to be his negligence (toward Mrs. Griggs) and “as a result of his failure to procure liability insurance, itself a violation of the law.”
The general statement of the law as I read it suggests that “[a] right to implied indemnity among tortfeasors may arise out of a contractual or special relationship between the parties or from equitable considerations.” 41 Am.Jur.2d, Indemnity, § 20, p. 707 (1968) (emphasis added).
Perhaps not entirely clear in the Court’s opinion, but a critical fact is that here there is only one tortfeasor, Ahrendsen, and he was not sued by the injured Mrs. Griggs, but by Safeco. Safeco, had it recognized liability to Mrs. Griggs, would likely have been subrogated. Instead it went to court, brought Ahrendsen in as its defendant, and joined hands with Ahrendsen in trying to convince the jury that Mrs. Griggs was more at fault than Ahrendsen and that she was not entitled to substantial damages, an apparently successful joint venture on the part of Safeco and Ahrendsen and perhaps to the detriment of Safeco’s assured. Be all that as it may, and noting from the briefs that Ahrendsen conceded liability for the Griggs judgment against Safeco, apparently based on his attorney’s reliance on May Trucking, I wholly am unable to see any proper theory of indemnity under which Ahrendsen was liable to Safeco — with whom he had no relationship whatever.
Safeco’s equitable theory of indemnity in its brief simply stated as follows:
“Safeco, in essence, prevailed in its suit with Griggs by proving that its insured was partially at fault therefore justifying Safeco’s decision to limit coverage under the uninsured motorist provisions of the policy. The attorney fees which accrued in the action involving Griggs, Safeco and Ahrendsen were the result of litigating issues that pertained to negligence rather than coverage issues. Therefore, it was to the advantage of the uninsured motorist, Ahrendsen, that Safeco combined its efforts with Ahrendsen to prove that Griggs was partially at fault. Thus, based upon a theory of implied indemnity, it would be inequitable for the court to decide that the attorney fees incurred as the result of litigation regarding negligence of the parties be awarded against Safeco.” (Emphasis added.)
To me that sounds more of unjust enrichment than it does of the law of indemnity as I see the law of indemnity.2 And, as Judge Cunningham pointed out, Safeco’s remedy against Ahrendsen was by way of subrogation wherein it failed too, because *794Mrs. Griggs had not obtained any judgment against Ahrendsen, or even sued him.
I concur in affirming the trial court, but not on the basis that the trial court made a good exercise of an equitable discretion. On the contrary, I endorse Judge Cunningham’s sound conclusion that neither “equity [nor] any theory of indemnity, shifts the burden of Griggs’ judgment for costs, including attorney fees, from Safeco to Ahrendsen under the facts of this case.”
. May Trucking sets out three examples of theories supporting an indemnity claim. 97 Idaho at 321, 543 P.2d at 1161. A more complete analysis is set out in 41 Am.Jur.2d, Indemnity, § 20, p. 706 (1968).
. Unjust enrichment in a proper case, where joint and several liability of one or more tortfeasor is to be distributed amongst them, is a sound theory. For that particular point and a good general discussion of principles of indemnity and the distinction between indemnity and contribution, see United Airlines v. Wiener, 335 F.2d 379 beginning at p. 398 (9th Cir.1964) cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549.