Berger v. Safeco Ins. Co.

ORS 742.061(3) only disqualifies a defendant from the fee exemption if the defendant raises “issues” outside the scope of the safe harbor. Robinson v. Tri-Met, 277 Or App 60, 72, 370 P3d 864 (2016), rev den, 361 Or 886 (2017).

Defendant appealed Plaintiff’s award of attorney fees under the underinsured motorist (UIM) benefits statute. Defendant assigned error to the trial court’s UIM ruling pursuant to ORS 742.061(3), claiming that the award qualified for the “safe harbor” provision. On appeal, Defendant argued that Plaintiff’s fault composes a vital part in shaping the liability of the underinsured motorist, and therefore, the lower court’s attorney fees award was in error. Plaintiff did not defend the award and argued that Defendant left the safe harbor provision. Plaintiff did not present an argument that emerged as a disputed issue. Defendant’s references to matters outside the safe harbor were not related to an actual dispute within the parties. Furthermore, Defendant remained consistent in all statements which demonstrated the absence of dispute within the parties. ORS 742.061(3) only disqualifies a defendant from the fee exemption if the defendant raises “issues” outside the scope of the safe harbor. Robinson v. Tri-Met, 277 Or App 60, 72, 370 P3d 864 (2016), rev den, 361 Or 886 (2017). The Court held that Defendant was not removed from the safe harbor provision because the parties did not raise any "issues" outside the scope of the provision. Reversed and remanded.