Companies doing business in Oregon should be aware of ORS 20.080, which can provide for attorney fees in cases seeking damages of $10,000 or less. That statute provides that prevailing plaintiffs may be awarded attorney fees under specified conditions described below. Therefore, in cases seeking compensatory damages of $10,000 or less, attorney fees can quickly approach or even outstrip the compensatory damages under ORS 20.080.
Whether the plaintiff “prevails” depends on a number of factors. Under the statute, the plaintiff must make a demand to the defendant AND the defendant’s insurer, if known to the plaintiff, for payment in writing no less than 30 days before filing a lawsuit. The written demand must include (if applicable and if the information is reasonably available to the plaintiff at the time): the medical records and bills, documentation of the repair of the property, an estimate for the repair of the property, and/or an estimate of the difference in value of the property before the damage and the value of the property after the damage.
If, after the plaintiff has made her written 20.080 demand and before she has filed the lawsuit, she obtains any additional written information that the demand would include, such as additional medical bills, she must send those documents to the defendant and the defendant’s insurer as soon as possible.
The only way the defendant can escape attorney fees in such cases is if the defendant offers the plaintiff more than the damages ultimately awarded to the plaintiff before the lawsuit is filed. In other words, if the plaintiff recovers $5,000, but the defendant offered $3,000 before the lawsuit was filed, the plaintiff still gets her attorney fees.
If the lawsuit is filed and the defendant has a counterclaim of up to $10,000 and the defendant prevails in the lawsuit, the defendant gets its reasonable attorney fees. What is “reasonable” is decided by the court.
It is important to notify your attorney right away after receipt of an ORS 20.080 letter to ensure that you strategize appropriately. Although it may seem unpalatable, generally the best strategy is for defendant to make their best offer first, to minimize the risk of an award in excess of the offer and exposure to attorney fees. Many times, lawyers don’t receive cases until the lawsuit is filed and, in ORS 20.080 cases, that is usually too late.