34 Trial Lawyer • Spring 2023 Lessons Learned Continued from p 33 prevailing lawyer, have prepared your own damage evidence in the form of a daily diary recording the services. Have fun! Ask your expert to support a multiplier One of my all-time favorite cases is a fire loss in Medford suffered by “Fabulous Mr. Thom,” who used to do Ginger Rogers’ hair. Thom had allowed his insurance to lapse by failing to pay his premiums. One day, while doing a customer’s hair, he saw a flash of flame. He shrieked, grabbed the phone, and called his agent: “I NEED YOU TO REINSTATE MY FIRE INSURANCE!!!” Thom’s salon was destroyed and for obvious reasons his insurer declined to reestablish his insurance while the salon was burning down. Fortunately, however, there is a little-known Oregon statute that provides that a business is entitled to a written notice of termination that includes a right to a hearing. The insurer’s termination notice was found ineffective because it failed to include the right to a hearing. In the fee proceeding, we chose an expert we hoped would be familiar to Medford Judge Tim Gerking — former president of the Oregon State Bar Bill Crow, who had a statewide reputation. We asked for a 25% multiplier (based on risk and result) and the court awarded a 20% multiplier. State courts allow multipliers (also called enhancements) to reflect various factors, including contingency risk, undesirability of case, obstruction by opposing counsel and result. See, e.g., Griffin By & Through Stanley v. Tri-Met Metro. Transp. Dist. of Oregon, 112 Or App 575, 584, 831 P.2d 42 (1992), amended (June 2, 1992), aff’d in part, rev’d in part, 318 Or 500, 870 P.2d 808 (1994). And in a diversity case, the federal court will apply state law in determining entitlement to attorney fees (and a potential enhancement). See Mangold v. California Pub. Utilities Comm’n, 67 F.3d 1470, 1479 (9th Cir. 1995). Attorney fee applicants should always consider the potential application of a multiplier. Conclusion Oregon’s one-way attorney fee statute is one of the most consumer-friendly in the nation. The statute provides an opportunity to make the insured whole while forcing the insurer to pay all of the attorney fees. Bob Bonaparte specializes in representing policyholders in insurance coverage disputes. He is also a well-respected and experienced attorney fee expert. Bonaparte contributes to OTLA Guardians at the Sustaining Member level. He is a partner at Bonaparte & Bonaparte, LLP, located at 1 SW Columbia St., Ste. 460, Portland, OR 97204. He can be reached at 503-2420008 or bob@bb-law.net.
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