48 Trial Lawyer • Spring 2024 dissent, held that Oregon common law does not permit an insurer to be held liable in tort for denying coverage under a policy. The dissent concluded that the court’s analysis in Farris was dispositive and disagreed with the majority’s attempt to distinguish that case on its facts. DECISIONS OF THE OREGON COURT OF APPEALS Consolidation of multiple cases for trial does not deprive a plaintiff of the right to attorney fees under ORS 20.080, and to be valid a tender under that statute must be unambiguous in requiring only a release of the defendant, not other parties. Frost v. Jacobs, 330 Or App 61 (2023); Aoyagi, J. The plaintiff was represented by Rahn Hostetter. The plaintiff and the defendant had an altercation. Afterward, each filed a civil action against the other. The actions were consolidated and tried together. In the plaintiff’s action, the plaintiff sought $10,000 for battery. In the defendant’s action, the defendant sought $47,000 for assault and battery. The plaintiff counterclaimed for $40,000 for malicious prosecution. The jury found for the plaintiff in the plaintiff’s action, awarding $1,087. In the defendant’s action, the jury rejected both the defendant’s claim and the plaintiff’s counterclaim. In the plaintiff’s action, the plaintiff requested attorney fees under ORS 20.080, which provides for a mandatory fee award to the prevailing plaintiff in tort actions where the amount pleaded is $10,000 or less. The trial court denied the request on two grounds. First, the court treated the consolidated cases as a single action and thereby concluded that the plaintiff had pleaded more than $10,000 in damages. Second, alternatively, the trial court found that the defendant had made a “tender” before trial in an amount greater than the jury award, thus precluding a fee award under the statute. The plaintiff appealed, and the Court of Appeals reversed. First, the court held that, for purposes of ORS 20.080, separate actions must be treated as separate, even when they are consolidated, and even when there are concerns about claim splitting, such that the plaintiff’s action was within the $10,000 statutory limit. Second, the court held that the defendant did not make a valid “tender” for purposes of ORS 20.080 because the written offer made by the defendant’s insurer was ambiguous as to the offer’s conditions, specifically, whether it required the plaintiff to release the plaintiff’s claims against the defendant only (which was permissible), or also against a different person against whom the plaintiff had also asserted a claim (which was not permissible). Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Guardians Club level. Hoesly is a shareholder at Barg Singer Hoesly PC, 121 SW Morrison St., Ste. 600, Portland, OR 97204. He can be reached at 503-2418521 or [email protected]. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or [email protected]. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 101 SW Main St., Ste. 910, Portland, OR 97204. She can be reached at [email protected] or 503-2286474. Sheets Continued from p 47
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