2015 ORS 20.080¹
Attorney fees for certain small tort claims

(1) In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 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, and on the defendants insurer, if known to the plaintiff, not less than 30 days before the commencement of the action or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims). 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 or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims), an amount not less than the damages awarded to the plaintiff.

(2) If the defendant pleads a counterclaim, not to exceed $10,000, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.

(3) A written demand for the payment of damages under this section must include the following information, if the information is in the plaintiffs possession or reasonably available to the plaintiff at the time the demand is made:

(a) In an action for an injury or wrong to a person, a copy of medical records and bills for medical treatment adequate to reasonably inform the person receiving the written demand of the nature and scope of the injury claimed; or

(b) In an action for damage to property, documentation of the repair of the property, a written estimate for the repair of the property or a written estimate of the difference in the value of the property before the damage and the value of the property after the damage.

(4) If after making a demand under this section, and before commencing an action, a plaintiff acquires any additional information described in subsection (3) of this section that was not provided with the demand, the plaintiff must provide that information to the defendant, and to the defendants insurer, if known to the plaintiff, as soon as possible after the information becomes available to the plaintiff.

(5) A plaintiff may not recover attorney fees under this section if the plaintiff does not comply with the requirements of subsections (3) and (4) of this section.

(6) The provisions of this section do not apply to any action based on contract. [Amended by 1955 c.554 §1; 1979 c.525 §1; 1981 c.897 §1; 1981 c.898 §19; 1985 c.342 §7; 1985 c.618 §15c; 1997 c.46 §2; 1999 c.947 §1; 2001 c.542 §2; 2009 c.487 §§1,3]

Notes of Decisions

Recovery of attorney fees as costs under this sec­tion is not restricted by limita­tion otherwise imposed by [former] ORS 20.040 (5). Bivvins v. Unger, 263 Or 239, 501 P2d 1262 (1972)

Notice which states that the plaintiff will request attorney fees under this sec­tion is sufficient to inform the defendant that plaintiffs claim would be $1000 or less. Landers v. E. Texas Motor Freight Lines, 266 Or 473, 513 P2d 1151 (1973)

Plaintiff should recover attorney fees so long as his demand is greater than $1000 and the judg­ment is greater than defendants offer of settle­ment. Landers v. E. Texas Motor Freight Lines, 266 Or 473, 513 P2d 1151 (1973)

Award of attorney fees was improper in suit to es­tab­lish ease­ment in land because suit was equitable in nature. Rose v. Rose and Freeman, 279 Or 27, 566 P2d 180 (1977)

Where original complaint set forth three alternative theories of recovery which would not have permitted recovery of more than $1,000, court was authorized to award attorney fees to prevailing plaintiffs. Barnes v. Bob Godfrey Pontiac, 41 Or App 745, 598 P2d 1289 (1979), Sup Ct review denied

Where defendants insurer was given more than one opportunity to settle for less than $1,000 before plaintiffs final demand letter, asking for more than $1,000, and where plaintiffs filed suit seeking $1,000 in damages and attorney fees, plaintiffs were entitled to recover attorney fees. Costley v. Holman, 45 Or App 501, 608 P2d 614 (1980)

Where plaintiff sent notice to shop most familiar with plaintiffs claim rather than to corporate headquarters, defendant received 10-day notice re­quired by this statute. Castro v. Earl Sheib of Oregon, 65 Or App 179, 670 P2d 226 (1983)

This sec­tion, in providing award of attorney fees to successful plaintiff seeking damages of less than $3,000 for injury to per­son or prop­erty, applies to claims for goods lost by interstate carrier. Troute v. Aero Mayflower Transit Co., 78 Or App 564, 718 P2d 745 (1986)

Ac­tion based on fraudulent misrepresenta­tions is ac­tion for damages for injury or wrong to per­son or prop­erty within meaning of this sec­tion. Farmer v. George, 80 Or App 120, 720 P2d 1328 (1986)

Plaintiff can be awarded attorney fees in contract ac­tion when contractual viola­tion causes injury to per­son or prop­erty. Barnes v. Lackner, 93 Or App 439, 762 P2d 1043 (1988)

Defendant who prevails on counterclaim for $4000 or less prevails in ac­tion and is entitled to reasonable attorney fees. Bennett v. Minson, 309 Or 309, 787 P2d 481 (1990)

Prevailing party is party for whom judg­ment is entered, not party with respect to whom trial court reduces arbitra­tion award. Scholes v. Sipco Services & Marine, Inc., 103 Or App 503, 798 P2d 694 (1990)

Defendant was not re­quired to include attorney fees from prior ac­tion with tender of full amount of damages to avoid liability for attorney fees in lien foreclosure ac­tion. ASB Construc­tion v. Bateman, 124 Or App 638, 863 P2d 516 (1993)

Attorney fees were proper in suit for damages involving ease­ment to land since primary relief granted was not equitable. Bunnell v. Bernau, 125 Or App 440, 865 P2d 473 (1993)

Where suit pleads causes of ac­tion arising out of different operative facts, pleaded ac­tions are to be aggregated in determining whether amount cap is exceeded. Steele v. A & B Automotive & Towing Service, Inc., 135 Or App 632, 899 P2d 1206 (1995)

Notice require­ment cannot be met by measuring commence­ment of the ac­tion from filing date of amended complaint. Rath v. Haycock, 137 Or App 456, 905 P2d 854 (1995)

Where cross-complaints were merged, designa­tion of prevailing party as defendant in merged ac­tion did not qualify party to seek attorney fees as defendant filing counterclaim. Rath v. Haycock, 137 Or App 456, 905 P2d 854 (1995)

Amount of insurers separate claim against defendant for insurance benefit pay­ment to plaintiff could not be added to amount of plaintiffs claim to disqualify plaintiff from receiving attorney fees. Gish v. Lawless Roofing, 140 Or App 618, 915 P2d 487 (1996)

Where no objec­tion to pleadings is raised, mixture of legal and equitable claims in same count does not prevent award of attorney fees. Stephenson v. Pierson, 145 Or App 23, 929 P2d 329 (1996)

Amount pleaded refers to allega­tion of damages only. Timber Service Co. v. Ellis, 163 Or App 349, 988 P2d 396 (1999)

Amount pleaded is amount sought in pleading that is operative at time of judg­ment. Rodriguez v. The Holland, Inc., 328 Or 440, 980 P2d 672 (1999)

Where plaintiff sent single demand for pay­ment, then filed and prevailed on two ac­tions consolidated for trial, plaintiff was entitled to attorney fees for one of two ac­tions. Beers v. Jeson Enterprises, 165 Or App 722, 998 P2d 716 (2000)

Defendant includes attorney or insurer acting as agent for defendant. Schwartzkopf v. Shannon the Cannons Window and Other Works, Inc., 166 Or App 466, 998 P2d 244 (2000)

Tender includes offer of pay­ment that contains condi­tion upon which offering party has right to insist or that recipient has no right to refuse. Reed v. Jackson County Citizens League, 183 Or App 89, 50 P3d 1287 (2002), Sup Ct review denied

Prelitiga­tion offer to pay money condi­tioned upon discharge of disputed claim is tender. Fresk v. Kraemer, 185 Or App 582, 60 P3d 1147 (2003), affd 337 Or 513, 99 P3d 282 (2004)

Where plaintiff fails to recover amount exceeding settle­ment offer made under ORCP 54E, offer cuts off recovery of attorney fees incurred after offer. Bell v. Morales, 207 Or App 326, 142 P3d 76 (2006), Sup Ct review denied

Prelitiga­tion demand must be made for same claim on which plaintiff prevailed at trial and provided to same defendant against whom plaintiff prevailed. Huntley v. Tri-Met, 210 Or App 269, 149 P3d 1268 (2006)

Written demand must be made in manner reasonably calculated to apprise defendant of demand. Woods v. Carl Karcher Enterprises, Inc., 341 Or 549, 146 P3d 319 (2006)

Oral communica­tion cannot cure defect in written notice of claim. Johnson v. Swaim, 343 Or 423, 172 P3d 645 (2007)

Plaintiffs entitle­ment to attorney fees under this sec­tion is excep­tion to ORCP 54E curtail­ment of attorney fees following post-filing offer of judg­ment by defendant. Powers v. Quigley, 345 Or 432, 198 P3d 919 (2008)

Tender made on same day on which complaint is later filed qualifies as tender made prior to commence­ment of ac­tion. Kile/Coffey v. York, 234 Or App 358, 228 P3d 599 (2010)

This statute does not govern claims for attorney fees where claimant prevailed in ac­tion for money had and received. Williamson v. Govern­ment Employees Insurance Co., 247 Or App 48, 270 P3d 260 (2011), Sup Ct review denied

Require­ment to issue pre-litiga­tion demand letter of intent to collect attorney fees applies only to plaintiff that prevails in ac­tion, not to defendant that prevails on counterclaim. Halperin v. Pitts, 352 Or 482, 287 P3d 1069 (2012)

Law Review Cita­tions

56 OLR 585 (1977)

  • Dwyer, Williams & Potter, LLP / Arne Cherkoss , Sep 9, 2009
    “Sometimes the value of a case is small enough that it really doesn’t make economic sense to hire a lawyer. For example, imagine a scenario wherein someone damages your car, and the repair cost is $3,000. ... The Oregon Legislature enacted ORS 20.080 to assist people in Oregon in just these types of situa­tions. ...”
  • Oregon Bike Law / Ray Thomas, Jan 12, 2010
    “. . . Few bicyclists are willing to go to small claims court to advocate for themselves. Unfortunately, this means that riders frequently grudgingly accept “low ball” offers to settle prop­erty damage claims. One tool that does exist for bicyclists is a law that gives a victim a negotiating edge. ORS 20.080 provides . . .”

1 Legislative Counsel Committee, CHAPTER 20—Attorney Fees; Costs and Disbursements, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors020.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 20, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano020.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.