ORS 742.061 (emphasis added) provides in relevant part:
“…if 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.”
The statute does not define “recovery,” but a recent decision by the Oregon Court of Appeals holds that “recovery,” for purposes of ORS 742.061, requires a money judgment.
In Triangle Holdings, II, LLC v. Stewart Title Guar. Co., No. 110607932, 2014 WL 5365977, at *1 (Or. Ct. App. Oct. 22, 2014), plaintiff, a private lender, loaned money to a builder and obtained title insurance from defendant. After learning construction liens had been placed on the subject property, the plaintiff satisfied the liens itself and then sought reimbursement from defendant. After delay in receiving payment, plaintiff filed suit against defendant. Defendant then paid the amount sought by plaintiff, and plaintiff accepted the payment. Neither party notified the court. Defendant moved for summary judgment, arguing that plaintiff’s claim was moot and the court granted the motion. Plaintiff sought attorney fees under ORS 742.061, contending that it had “recovered” the full amount it sought, thus satisfying the statute’s requirement. The trial court disagreed because no judgment was obtained. On appeal, the Court of Appeals affirmed, observing that “recovery” is defined by dictionaries as “the obtaining in a suit at law of a right to something by a verdict, decree, or judgment of court.” The Court also explained that its cases construing prior versions of ORS 742.061 held that the plaintiff “must recover a money judgment.” Because the plaintiff in Triangle Holdings had not obtained a money judgment, the Court concluded that it had not obtained “recovery” under the statute and was therefore not entitled to attorney fees.
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