Appeal from Circuit Court, Multnomah County. William M. Dale, Judge.
Burton J. Fallgren, Portland, argued the cause and filed a brief for appellant.
Jeffrey M. Batchelor, Portland, argued the cause for respondents. With him on the brief were David C. Landis, and Gearin, Landis & Aebi, Portland.
Plaintiff was injured when an automobile he was operating was involved in an accident with a truck owned by defendant East Texas Motor Freight Lines and operated by its agent, Timothy Hust. More than ten days prior to commencing his action, plaintiff gave defendants the following notice:
"Unless you contact me within ten days and make satisfactory arrangements for the settlement of this claim for personal injury or have your insurance carrier do so in your behalf, I am instructed by Mr. Landers to commence legal proceedings against you and each of you to recover full and just compensation for his injury, together with attorney's fees and court costs pursuant to ORS 20.080."
Plaintiff subsequently brought this action for $875 general damages and $105 special damages. The parties thereafter stipulated for the entry of judgment in favor of plaintiff in the sum of $450. The only issue in the case is whether under such circumstances plaintiff is entitled to attorney fees pursuant to ORS 20.080. The trial judge ruled that plaintiff was not so entitled, and plaintiff appealed.
Plaintiff contends that the notice was sufficient
despite the lack of demand for a specific amount of money because it notified defendants that attorney fees would be requested pursuant to the statute and, therefore, necessarily informed defendants that plaintiff's claim would be $1,000 or less. Defendants contend that the demand was insufficient in the absence of a demand for a specific amount because its purpose is to give a defendant an opportunity to settle before action is commenced and the notice does not give the defendants this opportunity in the absence of notification of the amount requested. ORS 20.080 is as follows:
"(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 $1,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, as a part of the costs of the action, 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; provided, that 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, an amount not less than the damages awarded to the plaintiff.
The purpose of the notice is to give the defendant an opportunity to settle the case. Heen v. Kaufman, 258 Or 6, 8-9, 480 P2d 701 (1971); Johnson v. White, 249 Or 461, 464, 439 P2d 8 (1968). The notification given by plaintiff was sufficient to inform defendants that plaintiff's claim would be $1,000 or less because that is the ...