United States District Court, D. Oregon
Stephen C. Hendricks, Hendricks Law Firm, Heather A. Brann,
Heather A. Brann, Attorney at Law, James R. Jennings, James
R. Jennings, P.C., Attorneys for Plaintiff Peggy Foraker.
S. McLay and Joshua N. Kastan, Hayes Scott Bonino Ellingson
& McLay, LLP, Matthew C. Casey, Bullivant Houser Bailey,
PC, Attorneys for Defendant USAA Casualty Insurance Company.
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
lawsuit, Plaintiff Peggy Foraker (“Foraker”)
asserted three claims against her automobile insurance
carrier, Defendant USAA Casualty Insurance Company
(“USAA Casualty”, arising out of a January 2012
car accident with an uninsured driver. Under Oregon common
law, Plaintiff alleged breach of express contract and breach
of the implied covenant of good faith and fair dealing.
Plaintiff also alleged financial abuse of a vulnerable
person, in violation of Oregon Revised Statutes §§
124.005, et seq. Earlier in this action, the Court
dismissed Plaintiff's claim of financial abuse.
Court also bifurcated the issues. In Phase I, the Court
addressed Plaintiff's claim of express breach of
contract. Plaintiff achieved partial success in Phase I.
Specifically, Plaintiff succeeded in proving the fault of the
uninsured motorist and that the accident was a substantial
factor in causing Plaintiff's alleged damages, both of
which USAA Casualty had denied. Before the Court is
Plaintiff's motion for attorney's fees relating to
her success in Phase I.
an action where a federal district court exercises subject
matter jurisdiction over a state law claim, so long as state
law does not contradict a valid federal statute, state law
denying the right to attorney's fees or giving a right
thereto, which reflects a substantial policy of the state,
should be followed.” Avery v. First Resolution
Mgmt. Corp., 568 F.3d 1018, 1023 (9th Cir. 2009)
(citation and quotation marks omitted). Under Oregon law, if
a settlement is not made within six months after an insured
files a proof of loss with an insurer and the insured brings
an action against the insurer under a policy of insurance and
the insured's recovery exceeds the amount of any tender
made by the insurer, the insured is entitled to receive an
award of reasonable attorney's fees. Or. Rev. Stat.
§ 742.061(1). That subsection provides in relevant part:
[I]f settlement is not made within six months from the date
proof of loss is filed with an insurer and an action is
brought in any court of this state upon any policy of
insurance of any kind or nature, and the plaintiff's
recovery exceeds the amount of any tender made by the
defendant in such action, a reasonable amount to be fixed by
the court as attorney fees shall be taxed as part of the
costs of the action and any appeal thereon. . . .
concluding that a prevailing party shall recover reasonable
attorney's fees, a court applying Oregon law must
consider the specific factors set forth in Oregon Revised
Statutes § 20.075 to determine the amount of
attorney's fees to be awarded. The specific factors set
forth in § 20.075(1) are:
(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 ORS 20.190.
(h) Such other factors as the court may consider appropriate
under the circumstances of the case.
Rev. Stat. § 20.075(1). After considering these eight
factors, Or. Rev. Stat. § 20.075(2) then directs the
court to consider the following additional eight factors:
(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 attorney from taking other cases.
(c) The fee customarily charged in the locality for similar
(d) The amount involved in the controversy and the results
(e) The time limitations imposed by the client or the
circumstances of the case.
(f) The nature and length of the attorney's professional
relationship with the client.
(g) The experience, reputation and ability of the attorney
performing the services.
(h) Whether the fee of the attorney is fixed or contingent.
Rev. Stat. § 20.075(2). Oregon law further directs that
when analyzing these factors, a court should “includ[e]
in its order a brief description or citation to the factor or
factors on which it relies.” McCarthy v. Or. Freeze
Dry, Inc., 327 Or. 185, 190-91 (1998). The court,
however, “ordinarily has no obligation to make findings
on statutory criteria that play no role in the court's
decision.” Frakes v. Nay, 254 Or.App. 236, 255
Oregon Revised Statutes § 20.075(2), factor (a)
generally relates to the reasonableness of the number of
hours expended by counsel for the prevailing party, factors
(c) and (g) generally relate to the reasonableness of the
hourly rates charged, and factor (d) generally informs
whether an upward or downward adjustment might be
appropriate. Taken together, these factors are comparable to
what is often referred to as the “lodestar”
method for calculating a reasonable attorney's fee.
See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
552 (2010) (holding that the lodestar method yields a
presumptively reasonable fee, subject to either upward or
downward adjustment as appropriate); see also Strawn v.
Farmers Ins. Co. of Or., 353 Or. 210, 221 (2013)
(“The lodestar approach that the parties have used is
at least a permissible one under the statutes involved,
” including Or. Rev. Stat. § 20.075); ZRZ
Realty Co. v. Beneficial Fire & Cas. Ins. Co., 255
Or.App. 525, 554 (2013) (“The lodestar method that the
trial court used is a commonly applied and permissible
approach for determining the reasonableness of a fee award .
. . .”).
lodestar amount is the product of the number of hours
reasonably spent on the litigation multiplied by a reasonable
hourly rate. McCown v. City of Fontana, 565 F.3d
1097, 1102 (9th Cir. 2009). In making this calculation, the
district court should consider various factors of
reasonableness, including the quality of an attorney's
performance, the results obtained, the novelty and complexity
of a case, and the special skill and experience of counsel.
See Perdue, 559 U.S. at 553-54; Gonzalez v. City
of Maywood, 729 F.3d 1196, 1209 n.11 (9th Cir. 2013).
determining the number of hours reasonably spent, “the
district court should exclude hours ‘that are
excessive, redundant, or otherwise unnecessary.'”
McCown, 565 F.3d at 1102 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). The party seeking
an award of attorney's fees “has the burden of
submitting billing records to ...