40 Trial Lawyer • Spring 2023 By Aaron Reichenberger OTLA Guardian Brenna Collacchi was a sweet and outgoing young woman. She was the oldest of three girls and a kind big sister. Full of energy and enthusiasm, Collacchi was on her high school dance squad and was elected homecoming queen. Her presence lit up whatever room she walked into. She was 21-years-old and filled with potential. Her entire life was in front of her. In February 2017, a drunk driver took Collacchi’s life. She was a passenger in the drunk driver’s car when he took a turn on a rural road at far too high a speed. That was all it took to snuff out Collacchi’s light.1 In the darkness that followed, her family was left with many unanswered questions about what happened that night. In their search for answers, they reached out to OTLA Aaron Reichenberger member Mike Rosenbaum and me for help. In the months that followed, Rosenbaum and I did everything we could to get the Collacchis the answers they sought. We also pursued every civil remedy available to them. Policy limits settlements were made with all potential tortfeasors. But when it came to the estate’s claims against their underinsured motorist (UIM) insurer, things got difficult. At the time of her death, Collacchi was insured under four separate State Farm UIM policies. State Farm accepted coverage on one policy and denied coverage on the other three saying that “other insurance” language in their policy precluded coverage.2 This was a pre-Batten world, so the question of whether State Farm could deny coverage was unanswered.3 Regardless, Collacchi’s family, at a time of need, felt betrayed. They had been State Farm insureds for decades and now, when they finally needed the insurance benefits they had paid thousands of dollars in premiums to obtain, they were being told to take a hike. We filed suit, brought the issue before the court, and won on summary judgment.4 This was a momentous win for Collacchi’s family. They not only felt vindicated, but they also understood that this could help other Oregonians battling their own insurance companies. But a question remained: was this all we could do for Collacchi’s family? The answer, thankfully, was no. Because of a wonderful and powerful statute, ORS 742.061, we could also force State Farm to pay the estate’s attorney fees. Right to attorney fees To start, ORS 742.061 is not a universal right to attorney fees in UM/UIM and PIP claims, but rather provides an insured with the right to attorney fees in certain situations. For an attorney fee claim to arise in a PIP or UM/UIM claim, the insured must provide their insurer with proof of loss, the claim must not settle within six months, the insured’s ultimate recovery must exceed the insurer’s best offer, and (critically) the insurer must either fail to send a safe harbor letter or take subsequent steps that sail them out of safe harbor.5 For an excellent discussion on the first three elements, see Brenna COlLacchi and the Fight Against State Farm This was a momentous win for Collacchi’s family. They not only felt vindicated, but they also understood that this could help other Oregonians battling their own insurance companies.
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