Lizama v. Allstate Fire and Casualty Ins. Co.

Under ORS 742.061(1), "a plaintiff in an action on an insurance policy is generally entitled to attorney fees if 'the plaintiff's recovery exceeds the amount of any tender made by the defendant,'" unless the insurer has accepted coverage in a small subset of situations or if the insurer has consented to submit the case to binding arbitration.

Plaintiff appealed a lower court summary judgment denying recovery on personal injury protection (PIP) and uninsured motorist (UM) claims.  Plaintiff assigned error to the court's rulings on the summary judgment denying recovery of attorney fees in his PIP and UM claims.  On appeal, Plaintiff argued that (1) the trial court misunderstood a letter inviting the plaintiff to ask for arbitration as fulfilling the statute's "consent" requirement, and (2) that the summary judgment was improper on the PIP claim because there were disputed issues of material fact about waiver of medical bills.  In response, Defendant argued (1) that the letter substantially complied with the statute, and (2) that the parties had stipulated that the issues of attorney fees would be resolved on summary judgment and that there was no factual dispute about the waiver.  Under ORS 742.061(1), "a plaintiff in an action on an insurance policy is generally entitled to attorney fees if 'the plaintiff's recovery exceeds the amount of any tender made by the defendant,'" unless the insurer has accepted coverage in a small subset of situations or if the insurer has consented to submit the case to binding arbitration.  The Court of Appeals held that (1) the letter was an invitation to request arbitration, but it did not convey a willingness to arbitrate, and (2) that there was enough evidence to create an issue of fact about the waiver.  Reversed and remanded.