Opinion
No. 416-735, SC 25081
Submitted December 13, 1977,
Attorney fees denied February 14, 1978
In Banc
Appeal from Circuit Court, Multnomah County.
Alan F. Davis, Judge.
Donald J. Friedman, of Black, Kendall, Tremaine, Booth Higgins, Portland, for the petition.
Gerald R. Pullen, Portland, contra.
Attorney fees denied.
DENECKE, C.J.
Plaintiff brought this action to recover proceeds of a credit-disability insurance policy. The defendant insurer prevailed in the trial court. The plaintiff appealed and we reversed, but remanded the cause to the trial court with instructions to redetermine whether plaintiff was entitled to recover. Stanford v. American Guaranty Life Ins. Co., 280 Or. 525, 571 P.2d 909 (1977). Plaintiff petitions this court for an allowance of attorney fees for services in this court pursuant to ORS 743.114. The defendant insurer contends plaintiff is not entitled to attorney fees until and unless plaintiff ultimately recovers on the policy. The petition is denied.
ORS 743.114 provides:
"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."
We stated the purpose of this statute (formerly ORS 736.325) in Heis v. Allstate Insurance Co., 248 Or. 636, 643-644, 436 P.2d 550 (1968):
"* * * The policy behind the statute is to encourage the settlement of claims and to discourage the unreasonable rejection of claims of insurers. * * *."
The wording of the statute appears to condition the right to attorney fees upon "plaintiff's recovery." The purpose of the statute is also served by such an interpretation. We, therefore, deny plaintiff's petition with leave to plaintiff to petition this court for attorney fees for services in this court if the plaintiff recovers on the policy in the proceedings now before the circuit court.