42 Trial Lawyer • Spring 2023 After a suit has been filed, there is nothing that prevents the parties from agreeing to submit the matter to a binding arbitration. If you do this, make sure the carrier agrees in writing that your attorney fee claim will continue through the arbitration and that the arbitration panel will have the authority to award fees under ORS 742.061. For PIP claims, obviously, this will not be a complicated issue. If the PIP carrier denies medical bills under the cover of an IME or medical records review, the insured’s breach of contract lawsuit in a circuit court will follow. This eliminates the issues above and, so long as all the other elements are met, allows for an attorney fee claim. What type of fee And it’s here that we turn back to Collacchi’s case. As mentioned above, many of the issues just discussed did not apply because in her case State Farm simply denied coverage on three UIM policies. Therefore, after prevailing, we were able to seek and recover attorney fees. But how much and of what nature? A few thoughts to consider. The first is that you are not limited to either your hourly rate or your contingent fee. Rather, you may pursue whichever fee is higher.16 Practically speaking, it is a good idea to include in your fee agreement a provision that allows you to charge the higher of these two amounts in the event you prevail in a matter including an attorney fee claim. The second thought is that, in the event you seek fees based upon your hourly rate, you are allowed to seek fees for the time that was “reasonably incurred to achieve the success” you obtained, not just the time spent on the specific PIP or UM/UIM coverage issue.17 This is a tremendous legal weapon. In Collacchi’s case, it meant that (for our alternative hourly-based argument), we were allowed to ask for all our time spent investigating the facts, resolving liability claims (because generally there cannot be a UIM claim without first resolving the underlying liability claim), and developing our damages argument. In the end, the court in Collacchi’s case awarded our full contingent fee. This meant that State Farm, in addition to paying the policy limits on all four policies the Collacchi family had spent decades paying premiums to maintain, also had to pay for her estate’s lawyer. There are few things more vindicating than winning for your client and making the insurance company pay for your time beating them. Closing thought I wish Collacchi’s family had never needed our help because they were experiencing a crisis unlike any other. But, under the circumstances, we were grateful we were able to serve the Collacchi family when they needed us the most. I never met Brenna, but after years of working with her loving mother and father I feel like I know her. Helping her family has been one of the high-water marks of my career. I appreciate their grace in allowing me to tell this small part of her story. Aaron Reichenberger is partner at the Rosenbaum Law Group where he focuses on persoanl injury and UM/UIM claims. Reichenberger contributes to OTLA Guardians at the Sustaining Member level. Rosenbaum Law Group is located at 1826 NE Broadway, Portland, OR 97232. He can be reached at aaron@rosenbaumlawgroup.com or 503-288-8000. 1 Curtis Sowell, a wonderful young boy, also lost his life in this collision. We represented Sowell’s estate as well. Sowell was a doting older brother, beloved among his peers, and was planning to dedicate his life to serving his country. Sowell’s case, however, did not involve the UM/UIM issues that arose in Collacchi’s. As such, this article is told through the lens of Collacchi’s case. Curtis Sowell’s passing deserves to be recognized and we are humbled that his family asked us to assist them in their time of need. 2 They also argued that three of the policies were cancelled mere hours before Brenna’s passing, but the discussion on why State Farm’s alleged cancellation was defective is a tale for another day. 3 See Batten v. State Farm Mutual Auto Ins. Co., 368 Or 538 (2021) (holding that “other insurance” language is void in light of changes to ORS 742.504 and insureds are entitled to coverage under all UM/UIM policies when injured as a pedestrian, bicyclist, or passenger in a car they do not own or regularly use). 4 See Collacchi v. State Farm Mutual Auto Ins. Co., 18CV49030 (Mult Cty). 5 ORS 742.061(1)–(3). See discussion below. 6 There are a handful of cases discussing proof of loss in the UM/UIM setting. See, e.g., Dockins v. State Farm Ins. Co., 329 Or 20 (1999) and Scott v. State Farm Mut Auto Ins. Co., 345 Or 146 (2008). 7 ORS 742.061(2). 8 ORS 742.061(3). 9 Berger v. Safeco Ins. Co., 305 Or App 380, 386 (2020) rev den 367 Or 290 (2020) (discussing that a carrier only sails out of safe harbor if the issue beyond liability and damages is actually disputed and requires resolution). 10 See Kiryuta v. Country Preferred Ins. Co., 360 Or 1 (2016); Cardenas v. Farmers, 230 Or App 403 (2009); and Burns v. American Family Mut. Ins. Co., 310 Or App 431 (2021). 11 Spearman v. Progressive Classic Ins. Co., 361 Or 584 (2017). 12 See ORS 742.061(1) (saying fees may be pursued if “an action is brought in any court of [Oregon]”. 13 See Rice v. State Farm Mut. Auto. Ins. Co., 307 Or App 238, 244–45 (2020) (saying “a trial court must determine whether [the elements of ORS 742.061(3) have been met].” (Emphasis added.) 14 But does this supersede ORS 742.061’s directive? 15 There is, however, an argument to be made that an arbitration panel has the authority to award fees in a binding arbitration when the carrier sails out of safe harbor after the parties have agreed to binding arbitration. This relies on the appellate court implicitly supporting the award of attorney fees in arbitration in the Kiryuta, Burns, and Cardenas cases. However, this is a thin argument and should be reserved for those matters in which there is simply too much risk that an insurer will require a weak case to go before a jury rather than stipulate to remove the filed case back to binding arbitration. 16 See Erickson v. Farmers Ins. Co., 175 Or App 548, 550 (2001) (awarding attorney fees in a UM/UIM breach of contract case based upon the agreed contingent fee percentage). 17 See Bearden v. NWE, Inc., 298 Or App 698 (2019); and Freedland v. Trebes, 162 Or App 374 (1999). Brenna Collacchi Continued from p 41
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