County Circuit Court CV09070070, CV10060761; A149925
(Control), A149926, Susie L. Norby, Judge.
appellant-cross-respondent's cost bill fled February 29,
2016; respondent-cross-appellant's objection to cost bill
fled March 11, 2016; appellant-cross-respondent's
petition for attorney fees fled March 18, 2016;
appellant-cross-respondent's reply to objection to cost
bill fled March 25, 2016; respondent-cross-appellant's
objection to petition for attorney fees fled May 27, 2016;
and appellant-cross-respondent's reply in support of
attorney fees fled June 24, 2016. Opinion fled December 9,
2015. 275 Or.App. 315, 365 P.3d 540.
W. Axelrod and Schwabe Williamson & Wyatt P.C., for
W. Axelrod, Sara Kobak, Jordan R. Silk, and Schwabe
Williamson & Wyatt P.C., for replies.
Daniel Lindahl, John A. Bennett, and Bullivant Houser Bailey
PC, for responses.
Armstrong, Presiding Judge, and Egan, Judge, and Nakamoto,
Judge pro tempore.
for attorney fees and costs allowed in the amount of $516,
977.77 in attorney fees and $46, 758.35 in costs.
Summary: Plaintiff, who prevailed on appeal, petitions for an
award of $624, 561.02 in attorney fees and $46, 758.35 in
costs. Defendant raises four objections to plaintiff's
petitions. First, defendant challenges plaintiff's
entitlement to recover attorney fees under ORS 742.061(1).
Second, defendant challenges $92, 583.25 in "deferred
payment charges, " contending that the charges represent
interest that plaintiff's attorneys charged plaintiff for
failing to timely pay them for their work and, as such, they
are not recoverable as attorney fees. Third, defendant
objects that a $15, 000.00 fee charged by plaintiff's
attorneys was a fee paid to an expert witness and not a fee
that plaintiff can recover from defendant. Finally, defendant
objects to approximately $32, 000 in transcript costs that
represent the cost to produce daily transcripts at trial.
First, the Supreme Court has already rejected defendant's
objection to plaintiff's entitlement to attorney fees
under ORS 742.061(1). Second, the deferred payment
charges-constituting interest charged by plaintiff's law
from-are not recoverable from defendant as attorney fees.
Third, plaintiff concedes that the $15, 000.00 fee charged
was an expert witness fee and is not recoverable from
defendant. Finally, because the parties agreed that the daily
transcripts would be the record on appeal, plaintiff is
entitled to recover the cost of those transcripts.
ARMSTRONG, P. J.
who prevailed on appeal, petitions for an award of $624,
561.02 in attorney fees and $46, 758.35 in costs. Defendant
Safeco Insurance Company of Oregon (defendant) raises four
objections to plaintiff's petitions, contending that
plaintiff is not entitled to an award of attorney fees and,
in all events, that three components of his fee and cost
requests should be denied. As explained below, we conclude
that plaintiff is entitled to an award of attorney fees, but
we agree with defendant on two of its attorney-fee objections
and, accordingly, award fees in an amount $107, 583.25 less
than plaintiff requested.
briefly summarize the facts of the case, which stem from a
fire that destroyed plaintiffs house and damaged surrounding
buildings. Plaintiff had purchased an insurance policy from
defendant that included extended dwelling coverage for loss
of the house due to fire. The parties disagreed on whether
plaintiff was entitled to recover amounts due under the
extended dwelling coverage before plaintiff replaced the
house. According to plaintiff, defendant's adjuster
orally agreed that defendant would pay the full replacement
value of the house, including the extended dwelling coverage,
without regard to whether the house had first been replaced.
Defendant subsequently refused to pay the extended coverage,
and plaintiff filed suit for breach of contract. Defendant
counterclaimed for breach of contract, alleging that
plaintiff had misrepresented the value of certain components
of the house, that defendant had relied on those
misrepresentations in paying plaintiff under the insurance
policy, that the insurance policy was void as a result of the
misrepresentations by plaintiff on which defendant had
relied, and, as a result, that defendant was entitled to
recover from plaintiff the money that it had paid plaintiff
on the policy.
moved for a directed verdict on defendant's counterclaim
at the close of defendant's case on the ground that
defendant had failed to introduce sufficient evidence to
support a finding that it had reasonably relied on
plaintiff's misrepresentations. The trial court denied
plaintiff's directed-verdict motion. The jury returned a
special verdict that found that plaintiff was entitled to the
full amount of his damages from the fire, including the
extended dwelling coverage, but that also found on
defendant's counterclaim that plaintiff had
misrepresented material facts to defendant on which defendant
had detrimentally relied. Based on the verdict, the trial
court entered a judgment in defendant's favor for the
amount that defendant had paid plaintiff under the policy.
appealed, contending, among other things, that the trial
court had erred in denying his directed-verdict motion on
defendant's counterclaim. We agreed with plaintiff and
remanded the case to the trial court to enter a judgment in
plaintiff's favor for the amount of damages awarded by
the jury. Masood v. Safeco Ins. Co. ...