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Rodriguez v. Holland Inc.4/29/1999
En Banc
Argued and submitted November 2, 1998.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.
In this negligence action for personal injuries that plaintiff sustained at defendant's playground, the issue is whether plaintiff, who prevailed on her claim, is entitled to an award of attorney fees. The trial court vacated the arbitrator's award of fees, and the Court of Appeals affirmed. Rodriguez v. The Holland, Inc., 153 Or App 701, 957 P2d 203 (1998). We conclude that plaintiff is entitled to attorney fees and reverse.
The facts are undisputed. Plaintiff, a young child, broke her arm when she fell from a piece of play equipment at a playground owned and operated by defendant. Defendant denied liability. Plaintiff, through her guardian ad litem, and defendant's insurer exchanged several offers and counteroffers in an attempt to settle plaintiff's claim. Ultimately, plaintiff informed defendant's insurer that she was willing to reduce her claim to $4,000 and that, if defendant did not pay that amount, plaintiff would make a demand for $4,000 "plus the award of attorney fees as allowed by ORS 20.080." Defendant's insurer made a counteroffer to settle the claim for $2,500 " n the spirit of compromise and considering the ORS 20.080 statute * * *."
Plaintiff subsequently filed a complaint alleging economic damages in the amount of $613, non-economic damages in the amount of $3,600 -- a total of $4,213 -- and attorney fees under ORS 20.080. Defendant's answer denied liability and denied that plaintiff was entitled to attorney fees under ORS 20.080. The circuit court transferred the case to arbitration. See ORS 36.405 (requiring mandatory arbitration of specified civil claims).
A few weeks before the arbitration hearing, plaintiff moved to amend her complaint under ORCP 23 A. At a hearing on that motion, plaintiff also requested that she be allowed to reduce her demand for damages to $4,000. Plaintiff explained that, as indicated in her earlier demand letter, she had intended to sue for damages of only $4,000. However, in drafting the complaint, she had miscalculated the economic and non-economic damages. The arbitrator allowed plaintiff to amend her complaint and to reduce her demand for damages to $4,000 but asked her to provide additional legal authority to support an award of attorney fees under ORS 20.080. Plaintiff provided a memorandum of authorities, and defendant responded to that memorandum.
After the arbitration hearing, the arbitrator found for plaintiff on her claim and awarded her $3,965 in damages and $6,000 in attorney fees. He explained that attorney fees were appropriate because
"defendant has not sufficiently shown prejudice arising from plaintiff's correction of her complaint to bring it within the statute for attorney fees. It is clear that such fees always were sought. * * *"
Defendant filed exceptions to the award of attorney fees with the circuit court. See ORS 36.425(6) (allowing filing of exceptions to award of attorney fees). That court vacated the arbitrator's award of attorney fees, concluding that Wyatt v. Sweitz, 146 Or App 723, 934 P2d 544, rev dismissed 326 Or 63 (1997), controlled. The Court of Appeals affirmed, citing Wyatt.
We allowed review to determine the meaning of the phrase "amount pleaded" in ORS 20.080. That statute provides, in part:
"(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 $4,000 or less, and the plaintiff prevails
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