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Petersen v. Farmers Insurance Company of Oregon9/15/1999
ss in November 1996. Defendant did not make any tender to plaintiff in this action until more than a year later, in December 1997. Thus, although defendant's tender exceeded the amount of plaintiff's recovery, the tender did not qualify under ORS 742.061 because it was not timely.
Defendant, however, contends that it made earlier, timely tenders with regard to plaintiff's claim against the other driver that also exceeded the amount of plaintiff's verdict. Defendant argues that those tenders also should qualify under the statute and defeat plaintiff's claim for attorney fees. In response, plaintiff contends that only tenders made in the same legal action fit within the terms of ORS 742.061. According to plaintiff, for that reason defendant's earlier tenders should not affect her claim for attorney fees because they were made to settle her claim against the other driver, while here she seeks recovery against her own insurer under her UM/UIM coverage. We need not resolve that dispute because the record does not reveal when defendant made its other tenders. In arguing that it made other timely tenders, defendant relies exclusively on the affidavit of its claims representative but, while that affidavit recites that the claims representative made "multiple offers to settle" in plaintiff's claim against the other driver, the affidavit does not disclose when those offers were made. Thus, even assuming that those offers could qualify under the statute, they do not qualify here because the record does not demonstrate that those tenders were timely ones.
Defendant also argues that the "policy considerations" underlying ORS 20.075 should apply here and that those considerations "preclude" an attorney fee award to plaintiff. We disagree. ORS 20.075(1) provides that a court must consider a list of factors "in determining whether to award attorney fees in any case in which attorney fees are authorized by statute and in which the court has discretion to decide whether to award attorney fees[.]" (Emphasis added.) The statute does not apply to the decision "whether to award attorney fees" under ORS 742.061. If the conditions enumerated in that statute are met, the decision whether to grant attorney fees is not a discretionary one. Instead, when the statutory conditions are met, the court "shall" award attorney fees.
Reversed and remanded.
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