and submitted March 1, 2016 .
County Circuit Court 140404987; Nan G. Waller, Judge.
Willard E. Merkel argued the cause for appellant. With him on
the briefs was Merkel & Associates.
M. Christ argued the cause for respondent. With him on the
brief was Cosgrave Vergeer Kester LLP.
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
Summary: Plaintiff appeals a judgment awarding her damages
for property damage caused by defendants, assigning error to
the trial court's denial of her exception for attorney
fees under ORS 20.080. Held: Plaintiff's demand
failed to meet the requirements of ORS 20.080(3). Plaintiff
maintained the burden of proving that, at the time she
petitioned for an award of attorney fees, her demand letter
either contained the information required under ORS 20.080 or
that such information was not in her possession or reasonably
available to her at the time the demand was made. As a
result, the trial court did not err in denying
plaintiff's exception to the denial of attorney fees.
appeals a judgment awarding her damages for property damage
caused by defendants, assigning error to the trial
court's denial of her exception for attorney fees under
ORS 20.080. For the reasons that follow, we affirm.
review attorney fee awards under ORS 20.080 for errors of
law. Johnson v. Swaim. 343 Or 423, 427, 172 P.3d 645
(2007). On January 18, 2014, plaintiff's car was struck
in rapid succession by each of the three defendants'
cars. On January 28, 2014, defendant Chhetri's insurer,
Travelers, issued an estimate of the cost to repair
plaintiff's car. On February 26, 2014, plaintiff's
attorney sent a demand letter to defendant Conroy and his
insurer, Safeco. The letter stated:
"Demand is made for payment of $10, 000 in damages that
resulted from the collision of January 18, 2014[, ] caused by
[defendant Conroy]. Please forward payment during the next 30
days. Please consider this to be a 30[-] day pre-suit notice
issued pursuant to ORS 20.080."
thereafter, plaintiff's attorney sent identical demand
letters to defendants Gaspar and Chhetri and their insurers,
State Farm and Travelers.
subsequently filed a complaint against defendants for the
property damage to her car. The trial court referred the case
to mandatory arbitration. On December 10, 2014, the
arbitrator ruled in plaintiff's favor, finding defendants
liable and awarding plaintiff damages. Plaintiff then
petitioned for attorney fees, arguing that she was entitled
to recover those fees pursuant to ORS 20.080.Plaintiff's
attorney fee petition included an affidavit by plaintiffs
counsel, averring that plaintiff made a demand on defendants
and that the attorney fees of plaintiff's counsel were
reasonable; plaintiff attached the demand letters to the
petition. Defendants objected to the award of attorney fees,
contending that plaintiffs demand was insufficient under ORS
20.080(3), and as a result, plaintiff was not entitled to
January 26, 2015, the arbitrator filed its decision and award
with the court; the award provided plaintiff damages for her
property damage and costs, but denied plaintiffs request for
attorney fees. Plaintiff filed an exception pursuant to ORS
36.425(6) to the arbitrator's denial of attorney
fees, which defendants opposed. Following a hearing, the
trial court denied plaintiff's exception. The trial court
then entered a general judgment and money award against
defendants for the amount of plaintiff's property damage
appeal, plaintiff reprises her argument that she was entitled
to attorney fees pursuant to ORS 20.080. Plaintiff contends
that the demand letter that she sent to defendants included
plaintiff's opinion of the value of the car, and
therefore satisfied the requirements of ORS 20.080(3).
Plaintiff asserts that an expert appraisal as to the
car's value was not "reasonably available"
because defendants possessed plaintiff's car, ORS 20.080