2007 ORS § 20.080¹

Attorney fees for certain tort claims of $5,500 or less

(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 $5,500 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 not less than 10 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 10 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 10 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 $5,500, 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) 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]

Notes of Decisions

Recovery of attorney fees as costs under this sec­tion is not restricted by limita­tion otherwise imposed by 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 plaintiff's 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 defendant's 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 defendant's 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 plaintiff's 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 insurer's separate claim against defendant for insurance benefit pay­ment to plaintiff could not be added to amount of plaintiff's 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 Cannon's 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), aff'd 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)

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. ...”

1 Legislative Counsel Committee, CHAPTER 20—Attorney Fees; Costs and Disbursements, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­020.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 20, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­020ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
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.