Lachenmeier, Enloe & Rall - February, 2004 Publication

Can Someone Make an ORS 20.080 Claim for an Accident that Occurs Outside of Oregon?

Oregon insurance adjusters are quite familiar with Oregon Revised Statute (“ORS”) 20.080, which allows plaintiffs to recover attorney fees for claims less than $5,500 under certain circumstances. Attorney fee awards under ORS 20.080 can sometimes exceed the value of the underlying claim, which can turn a relatively small claim into a more significant and troublesome claim. Therefore, it is important to recognize situations where ORS 20.080 may not apply.

One issue that may arise from time to time, is whether a plaintiff can file an ORS 20.080 claim in an Oregon court when the accident giving rise to the claim occurred outside of Oregon. When this issue arises, defendant can argue that ORS 20.080 should not automatically apply to any lawsuit filed in Oregon. Instead, the ORS 20.080 should apply only if Oregon is the state with the most significant relationship to the accident.

ORS 20.080 provides as follows:

In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $5,500 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less than 10 days before the commencement of the action … However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action … an amount not less than the damages awarded to the plaintiff.

In determining how to apply ORS 20.080, the threshold issue is whether the attorney fee provision is “procedural” or “substantive” in nature. This is because if the attorney fee provision of ORS 20.080 is “procedural” in nature, the statute would apply to any case filed in an Oregon court, since Oregon courts apply Oregon procedural law. As discussed below, if ORS 20.080 is substantive law, then the court will analyze whether it should apply ORS 20.080.

An analysis of Oregon case law indicates that ORS 20.080 should be considered substantive, rather than procedural, in nature. In Seattle-First Nat'l Bank, the court addressed whether another attorney fee statute, ORS 20.096, was “substantive” or “procedural” in nature. The court essentially held that statutory attorney fee provisions are treated as “substantive” in nature unless the statute states that attorney fees are treated as “costs” of the action.

An older version of ORS 20.080 stated that attorney fees were to be “taxed and allowed to the plaintiff, as a part of the costs of the action.” See Tiano v. Elsensohn, 268 Or 166 (1973). The current version of ORS 20.080, however, no longer refers to attorney fees being treated as part of the costs. The relevant portion of the statute now states, “[T]here shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action.” Under Oregon’s case law, since ORS 20.080 does not treat attorney fees as “costs,” the right to attorney fees under ORS 20.080 is substantive rather than procedural in nature. This certainly makes practical sense. Otherwise, a defendant could be sued in Oregon (assuming jurisdiction is appropriate) for any accident, no matter where the accident or harm occurred, and plaintiff could take advantage of provisions of ORS 20.080.

As indicated above, ORS 20.080 should be considered “substantive” in nature. If there is a conflict between ORS 20.080 and the substantive law of another state, then a choice of law analysis is employed to determine which state’s substantive law will apply to an action. The choice of law analysis used by Oregon courts is the “most significant relationship” test. This test works just as one would expect; courts determine whether Oregon or some other state has the most significant relationship with the action. To complete the most significant relationship analysis, one should consider a number of factors, including the accident location, the plaintiff’s residence, the defendant’s residence, and where damages were incurred. If there is a conflict of law and another state has the most significant relationship with the claim, ORS 20.080 will not apply. If Oregon has the most significant relationship, ORS 20.080 would apply. See Citizens First Bank v Inter'l Express, 77 Or App 655 (1986) (This case involved an action filed in Oregon to recover the value of stopped checks. An Oregon statute provided for attorney fees for the claim, but Washington had no such statute. The court resolved the conflict of law by determining which state with the most significant contacts.)

By being aware of the circumstances in which ORS 20.080 may not apply, an insurer will be in a better position to address the claim.

If you have any questions, please feel free to contact the author, Flavio A. Ortiz (alex@lerlaw.com), or Tim Heinson (tim@lerlaw.com) at 503-768-9600.