Barber v. Green

Under ORS 20.082(2), prevailing parties are entitled to reasonable attorney fees, unless a defendant tenders payment to the plaintiff prior to the commencement of the action. When attorney fees to the prevailing party are mandatory, a court may determine the amount of attorney fees, but does not have discretion to not award any attorney fees.

Barber filed a breach of contract claim after Allstate failed to pay the settlement amount for an automobile accident in which Barber was injured. The case was referred to arbitration, where both parties were awarded attorney fees. Both parties filed exceptions in circuit court and the court upheld the arbitrator’s findings, but denied attorney fees to both parties. Barber appealed, contending that she was the sole prevailing party and was entitled to attorney fees. Under ORS 20.082(2), prevailing parties are entitled to reasonable attorney fees, unless a defendant tenders payment to the plaintiff prior to the commencement of the action. The term “tender” does not allow a defendant to impose conditions on the payment. Allstate offered to pay Barber the agreed settlement amount before the action was filed, on the condition that Barber sign an improperly worded release. Therefore, the Court of Appeals found that the exception did not apply to Allstate. The Court determined that Barber was the sole prevailing party and she was entitled to attorney’s fees under ORS 20.082(2). The Court also held the circuit court abused its discretion in awarding no fees to the plaintiff when fees are mandatory to the prevailing party. Reversed and remanded.