Barber v. Green
273 P.3d 294
Or. Ct. App.2012Background
- Barber sued Green and Allstate over a settlement of Barber's personal injury claim; Allstate offered $3,500 exclusive of PIP; release language misrepresented the scope of the settlement; arbitrator found Barber prevailed on breach of contract and awarded $3,500 plus a release modification; circuit court denied fees to both sides; appellate court held Barber is prevailing party and entitled to fees under ORS 20.082; tender issue and timeliness of exceptions addressed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who is the prevailing party for ORS 20.082 fees | Barber prevailed on breach of contract | Allstate prevailed on counterclaims | Barber is prevailing party; Allstate not prevailing on contract claim |
| Did Barber prevail on a contract claim entitling fees | Barber recovered settlement amount and proper release | No fee if tender defense negates recovery | Barber prevailed on contract claim; fee entitlement under ORS 20.082(2) applies |
| Effect of ORS 20.082(4) tender provision | Tender did not bar fees since no valid tender found | Tender of $3,500 precluded fees | No finding of valid tender; provision not applicable to bar fees |
| Whether circuit court abused discretion by awarding no fees | Fees mandatory when prevailing party under ORS 20.082 | Discretion to deny fees exists | Circuit court abused discretion; remand for reasonable attorney fees |
Key Cases Cited
- Harvey v. Christie, 237 Or.App. 237 (Or. App. 2010) (application of ORCP 10 C to ORS 36.425 timing with mailed service)
- Fresk v. Kraemer, 337 Or. 513 (Or. 2004) (definition of 'tender' in ORS 20.082(4))
- Lemargie v. Johnson, 212 Or.App. 451 (Or. App. 2007) (denial of mandatory fees is abuse of discretion when applicable)
- Koster Remodeling & Construction v. Jataka, 155 Or.App. 142 (Or. App. 1998) (standards for reviewing attorney-fee awards)