Attorney Fees

ORS 20.080
Attorney fees for certain small tort claims


(1)

In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant, and on the defendant’s insurer, if known to the plaintiff, not less than 30 days before the commencement of the action or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims). However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims), an amount not less than the damages awarded to the plaintiff.

(2)

If the defendant pleads a counterclaim, not to exceed $10,000, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.

(3)

A written demand for the payment of damages under this section must include the following information, if the information is in the plaintiff’s possession or reasonably available to the plaintiff at the time the demand is made:

(a)

In an action for an injury or wrong to a person, a copy of medical records and bills for medical treatment adequate to reasonably inform the person receiving the written demand of the nature and scope of the injury claimed; or

(b)

In an action for damage to property, documentation of the repair of the property, a written estimate for the repair of the property or a written estimate of the difference in the value of the property before the damage and the value of the property after the damage.

(4)

If after making a demand under this section, and before commencing an action, a plaintiff acquires any additional information described in subsection (3) of this section that was not provided with the demand, the plaintiff must provide that information to the defendant, and to the defendant’s insurer, if known to the plaintiff, as soon as possible after the information becomes available to the plaintiff.

(5)

A plaintiff may not recover attorney fees under this section if the plaintiff does not comply with the requirements of subsections (3) and (4) of this section.

(6)

The provisions of this section do not apply to any action based on contract. [Amended by 1955 c.554 §1; 1979 c.525 §1; 1981 c.897 §1; 1981 c.898 §19; 1985 c.342 §7; 1985 c.618 §15c; 1997 c.46 §2; 1999 c.947 §1; 2001 c.542 §2; 2009 c.487 §§1,3]

Notes of Decisions

Recovery of attorney fees as costs under this section is not restricted by limitation otherwise imposed by [former] ORS 20.040 (5). Bivvins v. Unger, 263 Or 239, 501 P2d 1262 (1972)

Notice which states that the plaintiff will request attorney fees under this section is sufficient to inform the defendant that plaintiff's claim would be $1000 or less. Landers v. E. Texas Motor Freight Lines, 266 Or 473, 513 P2d 1151 (1973)

Plaintiff should recover attorney fees so long as his demand is greater than $1000 and the judgment is greater than defendant's offer of settlement. Landers v. E. Texas Motor Freight Lines, 266 Or 473, 513 P2d 1151 (1973)

Award of attorney fees was improper in suit to establish easement in land because suit was equitable in nature. Rose v. Rose and Freeman, 279 Or 27, 566 P2d 180 (1977)

Where original complaint set forth three alternative theories of recovery which would not have permitted recovery of more than $1,000, court was authorized to award attorney fees to prevailing plaintiffs. Barnes v. Bob Godfrey Pontiac, 41 Or App 745, 598 P2d 1289 (1979), Sup Ct review denied

Where defendant's insurer was given more than one opportunity to settle for less than $1,000 before plaintiffs' final demand letter, asking for more than $1,000, and where plaintiffs filed suit seeking $1,000 in damages and attorney fees, plaintiffs were entitled to recover attorney fees. Costley v. Holman, 45 Or App 501, 608 P2d 614 (1980)

Where plaintiff sent notice to shop most familiar with plaintiff's claim rather than to corporate headquarters, defendant received 10-day notice required by this statute. Castro v. Earl Sheib of Oregon, 65 Or App 179, 670 P2d 226 (1983)

This section, in providing award of attorney fees to successful plaintiff seeking damages of less than $3,000 for injury to person or property, applies to claims for goods lost by interstate carrier. Troute v. Aero Mayflower Transit Co., 78 Or App 564, 718 P2d 745 (1986)

Action based on fraudulent misrepresentations is "action for damages for injury or wrong to person or property" within meaning of this section. Farmer v. George, 80 Or App 120, 720 P2d 1328 (1986)

Plaintiff can be awarded attorney fees in contract action when contractual violation causes injury to person or property. Barnes v. Lackner, 93 Or App 439, 762 P2d 1043 (1988)

Defendant who prevails on counterclaim for $4000 or less "prevails in action" and is entitled to reasonable attorney fees. Bennett v. Minson, 309 Or 309, 787 P2d 481 (1990)

Prevailing party is party for whom judgment is entered, not party with respect to whom trial court reduces arbitration award. Scholes v. Sipco Services & Marine, Inc., 103 Or App 503, 798 P2d 694 (1990)

Defendant was not required to include attorney fees from prior action with tender of full amount of damages to avoid liability for attorney fees in lien foreclosure action. ASB Construction v. Bateman, 124 Or App 638, 863 P2d 516 (1993)

Attorney fees were proper in suit for damages involving easement to land since primary relief granted was not equitable. Bunnell v. Bernau, 125 Or App 440, 865 P2d 473 (1993)

Where suit pleads causes of action arising out of different operative facts, pleaded actions are to be aggregated in determining whether amount cap is exceeded. Steele v. A & B Automotive & Towing Service, Inc., 135 Or App 632, 899 P2d 1206 (1995)

Notice requirement cannot be met by measuring "commencement of the action" from filing date of amended complaint. Rath v. Haycock, 137 Or App 456, 905 P2d 854 (1995)

Where cross-complaints were merged, designation of prevailing party as defendant in merged action did not qualify party to seek attorney fees as defendant filing counterclaim. Rath v. Haycock, 137 Or App 456, 905 P2d 854 (1995)

Amount of insurer's separate claim against defendant for insurance benefit payment to plaintiff could not be added to amount of plaintiff's claim to disqualify plaintiff from receiving attorney fees. Gish v. Lawless Roofing, 140 Or App 618, 915 P2d 487 (1996)

Where no objection to pleadings is raised, mixture of legal and equitable claims in same count does not prevent award of attorney fees. Stephenson v. Pierson, 145 Or App 23, 929 P2d 329 (1996)

"Amount pleaded" refers to allegation of damages only. Timber Service Co. v. Ellis, 163 Or App 349, 988 P2d 396 (1999)

"Amount pleaded" is amount sought in pleading that is operative at time of judgment. Rodriguez v. The Holland, Inc., 328 Or 440, 980 P2d 672 (1999)

Where plaintiff sent single demand for payment, then filed and prevailed on two actions consolidated for trial, plaintiff was entitled to attorney fees for one of two actions. Beers v. Jeson Enterprises, 165 Or App 722, 998 P2d 716 (2000)

"Defendant" includes attorney or insurer acting as agent for defendant. Schwartzkopf v. Shannon the Cannon's Window and Other Works, Inc., 166 Or App 466, 998 P2d 244 (2000)

"Tender" includes offer of payment that contains condition upon which offering party has right to insist or that recipient has no right to refuse. Reed v. Jackson County Citizens League, 183 Or App 89, 50 P3d 1287 (2002), Sup Ct review denied

Prelitigation offer to pay money conditioned upon discharge of disputed claim is "tender." Fresk v. Kraemer, 185 Or App 582, 60 P3d 1147 (2003), aff'd 337 Or 513, 99 P3d 282 (2004)

Where plaintiff fails to recover amount exceeding settlement offer made under ORCP 54E, offer cuts off recovery of attorney fees incurred after offer. Bell v. Morales, 207 Or App 326, 142 P3d 76 (2006), Sup Ct review denied

Prelitigation demand must be made for same claim on which plaintiff prevailed at trial and provided to same defendant against whom plaintiff prevailed. Huntley v. Tri-Met, 210 Or App 269, 149 P3d 1268 (2006)

Written demand must be made in manner reasonably calculated to apprise defendant of demand. Woods v. Carl Karcher Enterprises, Inc., 341 Or 549, 146 P3d 319 (2006)

Oral communication cannot cure defect in written notice of claim. Johnson v. Swaim, 343 Or 423, 172 P3d 645 (2007)

Plaintiff's entitlement to attorney fees under this section is exception to ORCP 54E curtailment of attorney fees following post-filing offer of judgment by defendant. Powers v. Quigley, 345 Or 432, 198 P3d 919 (2008)

Tender made on same day on which complaint is later filed qualifies as tender made prior to commencement of action. Kile/Coffey v. York, 234 Or App 358, 228 P3d 599 (2010)

This statute does not govern claims for attorney fees where claimant prevailed in action for money had and received. Williamson v. Government Employees Insurance Co., 247 Or App 48, 270 P3d 260 (2011), Sup Ct review denied

Requirement to issue pre-litigation demand letter of intent to collect attorney fees applies only to plaintiff that prevails in action, not to defendant that prevails on counterclaim. Halperin v. Pitts, 352 Or 482, 287 P3d 1069 (2012)

As used in this section, "if known to the plaintiff" does not require delivery of demand to insurer that plaintiff is aware could be responsible for claim; rather, this section requires delivery of written demand to insurer that plaintiff knows is responsible for claim and thus, court erred in determining plaintiff was required to send written demand to all potential insurers that plaintiff was aware of, and denial of plaintiff's request for attorney fees was improper. Marandas Family Trust v. Pauley, 286 Or App 381, 398 P3d 914 (2017), Sup Ct review denied

§§ 20.080 to 20.098

Law Review Citations

56 OLR 585 (1977)


Source

Last accessed
Jun. 26, 2021