Don’t Underestimate Oregon and Washington Attorney Fee Statutes
By Rachel Nies and Elizabeth Wright, Portland Office
A plaintiff who makes a claim for damages of $10,000 or less in Oregon or Washington has the advantage of fee-shifting statutes, which provide for attorney fees if the plaintiff is the “prevailing party” at arbitration or trial. In these small-value cases, attorney fees can quickly surpass the compensatory damages recovered by the plaintiff. The two statutes, ORS 20.080 and RCW 4.84.250, provide specific protocols for recovering fees and are distinctly different in their operation.
In Oregon, a pre-litigation written demand for damages triggers the statute. It is essential to carefully consider settlement negotiations with a plaintiff when a written demand is received and before a lawsuit is filed. The only way an Oregon defendant can escape a potential attorney fee award (once a pre-suit demand has been made) is if the defendant responds with a pre-suit offer to settle.
If the defendant makes an offer to settle prior to suit being filed, and the plaintiff fails to recover more than the settlement offer amount at arbitration or trial, then the plaintiff does not recover her fees. Oregon’s law contains specific requirements that the plaintiff’s written demand must satisfy in order to trigger the attorney fee recovery statute. The plaintiff must make a pre-suit written demand no less than 30 days before filing a lawsuit. The written demand must include, if reasonably available to the plaintiff, any relevant medical records and bills, and/or documentation of property repair or an estimate for property repair.
Under the statute, the demand is made to the defendant and the defendant’s insurer, if known to the plaintiff. Oregon courts have held that neither an oral demand itself, nor an oral demand meant to supplement an incomplete written demand, will satisfy the statute. The fee-shifting statute can work to a similar advantage for a defendant who may have a counterclaim against the plaintiff (also for $10,000 or less), who prevails at trial or arbitration on its counterclaim. However, the fee-shifting mechanism does not otherwise provide an award of fees to a defendant who beats his original settlement offer.
The Washington statute, by contrast, sets forth no specific requirements for documentation supporting a demand from the plaintiff, nor does the demand have to be made pre-suit in cases where damages sought are $10,000 or less. The plaintiff is deemed a “prevailing party” and thus is entitled to attorney fees if the plaintiff recovers an amount equal to or greater than a “settlement offer” made by the plaintiff to the defendant. RCW 4.84.260. This settlement offer must be served on the defendant at least 10 days prior to trial or arbitration, and no earlier than 30 days after service and filing of the complaint. If the defendant serves a settlement offer on the plaintiff in accordance with these same time limits, the Washington statute mandates that a plaintiff who recovers zero damages, or who recovers an amount less than the defendant’s settlement offer, will pay the defendant’s attorney fees. RCW 4.84.270.
Thus, it is advantageous to cut off plaintiff’s rights to fees in both Oregon and Washington by making timely settlement offers when the damages sought are $10,000 or less. Although a successful defendant in Oregon cannot flip the right to recover fees, Washington defendants who successfully beat their settlement offers may be entitled to a fee recovery.
December 5, 2013