United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES T3ISTRICT JUDGE.
matter comes before me on Plaintiffs Robert and Janet
Chatelain's Motion for Attorney Fees , For the
reasons stated below, I GRANT in part and DENY in part the
Robert and Janet Chatelain own a dairy farm in Tillamook
County. In 2009, they decided to retire and began leasing the
farm to the Brauns. At the time of the lease, the dairy farm
had 230 milking cows, 166 heifers, two bulls, and all
equipment necessary to operate a dairy. In November 2013, the
Brauns violated their lease agreement, and in December 2013,
the Chatelains moved back to the dairy farm. On December 20,
2013, their first time milking the cows since moving back to
the farm, the Chatelains noticed that 113 milking cows and
100 heifers were missing from the livestock. They also
noticed that several pieces of equipment were, missing and
that substantial damage had been caused to the farm. The
Chatelains notified the sheriff, sued the Brauns, and
submitted an insurance claim to Country Mutual. Country
Mutual denied the claim, and the Chatelains brought suit for
breach of contract and breach of the implied duty of good
faith and fair dealing.
four-day jury trial, the jury found for the Chatelains on
both counts and awarded them $793, 375.00 in damages from
stolen personal property, stolen livestock, loss of milk
production, damages to structures, and vandalism. .
Chatelains seek: (1) an award of prejudgment interest in the
amount of $178, 448.74, through entry of judgment; (2) $816,
096.00 m attorney fees and a 2.0 multiplier; (3) $29, 021.00
in attorney fees and $5, 872.50 in expert fees incurred to
prepare the attorney fees motion; and (4) $15, 460.96 in
costs, including $1, 008.90 in costs incurred after the
filing of the attorney fees motion.
Chatelains seeks an award of prejudgment interest in the
amount of $178, 448.74. Motion  at 3. Country Mutual
does not dispute that the Chatelains are entitled to
prejudgment interest but disagrees with the Chatelains about
the date prejudgment interest began to accrue. Response 
Revised Statute Section 82.010, which governs prejudgment
interest in this case, allows for prejudgment interest at a
rate of "mine percent per annum [that] is payable on [a]
11 moneys after they become due." O.R.S. §
82.010(1); see Laro Lumber Co. v. Patrick, 630 P.2d
400, 404 (Or. Ct. App. 1981) (concluding plaintiff was
entitled to prejudgment interest from the date money was due
under a contract). "Prejudgment interest is proper when
the exact amount owing is ascertained or easily ascertainable
by simple computation or by reference to generally recognized
standards and where the time from which interest must run can
be ascertained." Gerber v. O'Donnell, 724
P.2d 916, 918 (Or. Ct. App. 1986). "Oregon courts [have]
adopted an approach where prejudgment interest is appropriate
notwithstanding that a defendant disputed liability and the
jury did not award plaintiff all the damages it sought or
where 'damages are not ascertainable until issues of fact
have been decided by the jury.'" Precision Seed
Cleaners v. Country Mut. Ins. Co., 976 F.Supp.2d 1228');">976 F.Supp.2d 1228,
1258 (D. Or. 2013) (quoting Strader v. Grange Mut. Ins.
Co., 39 P.3d 903, 909 (Or. Ct. App. 2002)).
Chatelains argue that prejudgment interest began to accrue on
the date they submitted a proof of loss to Country Mutual, or
September 29, 2014. Motion  at 4. There is some support
in case law for the Chatelains' position that interest
should be calculated from the date that damages became
ascertainable here, when they submitted the proof of loss. At
least one other court applying similar law concluded
prejudgment interest begins accruing when proof of loss is
submitted. See Underwriters Subscribing to Lloyd's
Ins. Cert. No. 80520 v. Magi, Inc., 790 F.Supp. 1043,
1057 (E.D. Wash. 1991) (applying similar Washington law and
concluding prevailing party was entitled "to prejudgment
interest from the date the proof of loss was
submitted"); see also Mayer v. Bassett, 501
P.2d 782, 789 (Or. 1972) ("[T]he plaintiff is entitled
to recover interest from the date of demand."). But
these cases do not address whether the relevant contracts
included "due" dates, which might more specifically
address when money "become[s] due."
Mutual argues that the due date was six months after the
Chatelains submitted their proof of loss, based on an Oregon
statute on attorney fees in insurance cases. Response 
at 3. However, Country Mutual does not provide any cases in
support of its proposition that the statute on attorney fees
also governs prejudgment interest. In the alternative,
Country Mutual argues that prejudgment interest did not begin
to accrue until the date of the verdict, because "there
was no clarity as to the amount of damages" until trial.
Response  at 3. But this argument does not comport with
Strader and other Oregon decisions which hold that
"although there are questions of fact about the amounts
owed, that does not mean that defendant did not owe sums
certain at dates certain." Strader, 39 P.3d at
909 (quoting Hazelwood Water Dist v. First Union
Mgmt., 715 P.2d 498 (Or. Ct. App. 1986)).
not find either party's position persuasive. I conclude
that payment in this case was due sixty days after the
Chatelains submitted their proof of loss, or on November 28,
2014. The language of O.R.S. § 82.010 states that
prejudgment interest runs from the date any "moneys .. .
become due." O.R.S. § 82.010(1). The Policy in this
case states that:
will be made 60 days after "we" receive
"your" properly executed proof of loss and
"you" have complied with all the policy conditions,
1. "We" reach an agreement with "you";
2. There is an entry of a final judgment; or
3. There is a filing of an appraisal award with
[25-1] at 47. The language of this provision could mean
either that payment was due 60 days after the proof of loss
was submitted or that payment was not due in this case until
60 days after an agreement, the entry of final judgment or
the filing of an appraisal award. Because this language is
ambiguous, I construe it in favor of the Chatelains and hold
they are entitled to recover prejudgment interest beginning
60 days after they submitted the proof of loss. See
Gowans v. Nw. Pac. Indem. Co., 489 P.2d 947, 948 (Or.
1971) ("[I]f the terms of an insurance policy are
ambiguous, any reasonable doubt as to the meaning of such
terms will be resolved against the insurance company and in
favor of the insured.").
therefore calculate prejudgment interest from November 28,
2014, until entry of judgment on August 29, 2017, and grant
prejudgment interest in the amount of $171, 340.13.
Entitlement to attorney fees
law governs whether attorney fees are available in this case.
Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011)
("State laws awarding attorneys' fees are generally
considered to be substantive laws under the Erie doctrine ...
."). The parties do not dispute that the Chatelains are
entitled to attorney fees under O.R.S. § 742.061. Under
O.R.S. § 742.061, the Court "shall" award
attorney fees if: (1) the Chatelains submitted proof of loss;
(2) Country Mutual did not settle within six months of the
proof of loss; (3) the Chatelains filed a lawsuit; and (4)
the Chatelains' recovery "exceeds the amount of any
tender made by the defendant in such action." O.R.S.
§ 742.061(1). Here, the Chatelains meet each of these
criteria: they submitted proof of loss on September 29, 2014;
Country Mutual did not settle within six months; the
Chatelains filed a lawsuit; and Country Mutual never offered
more than $150, 000 to settle, but the Chatelains recovered
$793, 375 at trial.
Amount of fees
courts generally award attorney fees based on the lodestar
method, under which courts multiply the reasonable number of
hours spent on the case by a reasonable hourly rate.
See O.R.S. § 20.107(2); Strawn v. Farmers
Ins. Co. of Or., 297 P.3d 439, 447-48 (Or. 2013). The
lodestar may be adjusted based on the factors specified in
O.R.S. § 20.075. Alexander Mfg., Inc. Emp. Stock
Ownership & Tr. v. Ill. Union Ins. Co., 688
F.Supp.2d 1170, 1181 (D. Or. 2010). O.R.S. § 20.075
requires courts to undertake a two-part inquiry when
assessing the amount of attorney fees to be awarded in a case
such as this one where attorney fees are required by statute.
O.R.S. § 20.075. First, the Court must consider:
(a) The conduct of the parties in the transactions or
occurrences that gave rise to the litigation, including any
conduct of a party that was reckless, willful, malicious, in
bad faith or illegal.
(b) The objective reasonableness of the claims and defenses
asserted by the parties.
(c) The extent to which an award of an attorney fee in the
case would deter others from asserting good faith claims or
defenses in similar cases.
(d) The extent to which an award of an attorney fee in the
case would deter others from asserting meritless claims and
(e) The objective reasonableness of the parties and the
diligence of the parties and their attorneys during the
(f) The objective reasonableness of the parties and the
diligence of the parties in pursuing settlement of the
(g) The amount that the court has awarded as a prevailing
party fee under O.R.S. 20.190.
(h) Such other factors as the court may consider appropriate
under the circumstances of the case.
O.R.S. § 20.075(1). Second, the Court must consider:
(a) The time and labor required in the proceeding, the
novelty and difficulty of the questions involved in the
proceeding and the skill needed to properly perform the legal
(b) The likelihood, if apparent to the client, that the
acceptance of the particular employment by the attorney would
preclude the ...