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Petersen v. Farmers Insurance Company of Oregon9/15/1999
Appeal from Circuit Court, Jackson County.
Daniel Harris, Judge.
Argued and submitted June 14, 1999.
Reversed and remanded.
Plaintiff appeals from the trial court's supplemental judgment that denied her request for an award of costs, disbursements, and attorney fees and that awarded defendant its costs and disbursements. Plaintiff assigns error to the trial court's failure to award her attorney fees pursuant to ORS 742.061. We reverse and remand.
The parties do not dispute most of the pertinent facts. In June 1995, plaintiff was injured in an automobile accident when her car was struck by another. Both plaintiff and the driver of the other car were insured by defendant. The other driver had automobile liability limits that were lower than plaintiff's uninsured/underinsured motorist (UM/UIM) coverage with defendant. On November 4, 1996, plaintiff provided proof of loss to defendant on her UIM claim. On December 9, 1996, she filed suit against defendant based on her UM/UIM coverage. More than a year later, on December 31, 1997, defendant offered to settle that case, including any claim for costs, disbursements, or attorney fees, for $11,500. That offer was "in addition to" personal injury protection benefits in the amount of $13,575 already paid by defendant to plaintiff. Plaintiff rejected that offer. In March 1998, following a jury trial, judgment was entered on a $9,657 verdict for plaintiff. Plaintiff then sought an award for her costs and disbursements and for her attorney fees. Defendant opposed the request and filed its own statement of costs and disbursements. The trial court denied plaintiff's request and awarded defendant its costs.
Plaintiff's request for attorney fees is based on ORS 742.061, which provides, in part:
"If settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind or nature, and the plaintiff's recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon."
Here, in denying plaintiff's request for attorney fees under that statute, the trial court relied on our decision in Grijalva v. Safeco Ins. Co., 153 Or App 144, 956 P2d 995 (1998), rev'd on other grounds 329 Or 36, ___ P2d ___ (1999). On appeal, defendant also relies on that decision. In Grijalva, we held that a plaintiff could not recover attorney fees under the statute unless the plaintiff's recovery exceeded the amount of "any tender" made by the defendant, irrespective of whether the tender was made within six months of the filing of the proof of loss.
Although the Supreme Court did not reach that issue on review in Grijalva, in Dockins v. State Farm Ins. Co., 329 Or 20, 32-34, ___ P2d ___ (1999), the court disagreed with our reading of ORS 742.061. Relying on its own earlier interpretation of a statutory predecessor to ORS 742.061, the court held that, for a defendant's tender to defeat a plaintiff's right to attorney fees under the statute, the tender must be a "timely" one. Id. at 32-33 (citing Dolan v. Continental Casualty Co., 133 Or 252, 289 P 1057 (1930)). To be "timely," the tender must be made within six months after the filing of the proof of loss with the insurer. Id.
Applying the holding in Dockins here, we find that defendant's tender did not defeat plaintiff's statutory entitlement to attorney fees because defendant made no "timely tender." 329 Or at 33. The parties agree that plaintiff filed her proof of lo
Page 1 2 Oregon Personal Injury Attorneys
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