Masood v. Safeco Insurance Co.
Masood v. Safeco Insurance Co.
Opinion of the Court
Plaintiff, who prevailed on appeal, petitions for an award of $624,561.02 in attorney fees and $46,758.35 in costs. Defendant Safeco Insurance Company of Oregon (defendant) raises four objections to plaintiffs petitions, contending that plaintiff is not entitled to an award of attorney fees and, in all events, that three components of his fee and cost requests should be denied. As explained below, we conclude that plaintiff is entitled to an award of attorney fees, but we agree with defendant on two of its attorney-fee objections and, accordingly, award fees in an amount $107,583.25 less than plaintiff requested.
We briefly summarize the facts of the case, which stem from a fire that destroyed plaintiffs house and damaged surrounding buildings. Plaintiff had purchased an insurance policy from defendant that included extended dwelling coverage for loss of the house due to fire. The parties disagreed on whether plaintiff was entitled to recover amounts due under the extended dwelling coverage before plaintiff replaced the house. According to plaintiff, defendant’s adjuster orally agreed that defendant would pay the full replacement value of the house, including the extended dwelling coverage, without regard to whether the house had first been replaced. Defendant subsequently refused to pay the extended coverage, and plaintiff filed suit for breach of contract. Defendant counterclaimed for breach of contract, alleging that plaintiff had misrepresented the value of certain components of the house, that defendant had relied on those misrepresentations in paying plaintiff under the insurance policy, that the insurance policy was void as a result of the misrepresentations by plaintiff on which defendant had relied, and, as a result, that defendant was entitled to recover from plaintiff the money that it had paid plaintiff on the policy.
Plaintiff moved for a directed verdict on defendant’s counterclaim at the close of defendant’s case on the ground that defendant had failed to introduce sufficient evidence to support a finding that it had reasonably relied on plaintiffs misrepresentations. The trial court denied plaintiffs directed-verdict motion. The jury returned a special verdict
Plaintiff appealed, contending, among other things, that the trial court had erred in denying his directed-verdict motion on defendant’s counterclaim. We agreed with plaintiff and remanded the case to the trial court to enter a judgment in plaintiffs favor for the amount of damages awarded by the jury. Masood v. Safeco Ins. Co. of Oregon, 275 Or App 315, 364, 365 P3d 540 (2015), rev den, 359 Or 525 (2016) (Masood I).
Defendant petitioned for review of our decision by the Supreme Court, which denied review. Masood v. Safeco Ins. Co. of Oregon, 359 Or 525, 379 P3d 515 (2016). Plaintiff thereafter petitioned the Supreme Court for an award of the attorney fees that he had incurred in responding to the petition for review, relying on ORS 742.061(1) as authority for the award. Defendant opposed the award, arguing that ORS 742.061(1) did not apply to the claims on which plaintiff had prevailed and, hence, that plaintiff was not entitled to recover its fees. The Supreme Court rejected defendant’s argument and awarded plaintiff the attorney fees that he sought. Masood v. Safeco Ins. Co. of Oregon, 360 Or 638, 644, 386 P3d 646 (2016) (Masood II).
With that background in mind, we turn to plaintiffs petition for attorney fees and costs in this court. Defendant raises four objections to plaintiffs petitions. First, defendant challenges plaintiffs entitlement to recover attorney fees under ORS 742.061(1). That is the challenge that the Supreme Court has already rejected in awarding attorney fees to plaintiff, see Masood II, 360 Or at 644, and we reject it as well.
Second, defendant challenges $92,583.25 in “deferred payment charges” that are included in plaintiffs attorney-fee petition. Defendant contends that the charges represent
Third, defendant objects, and plaintiff concedes, that a $15,000 fee charged by plaintiffs attorneys was a fee paid to an expert witness and not a fee that plaintiff can recover from defendant. We accept plaintiffs concession and reduce plaintiffs fee award accordingly.
Finally, defendant objects to approximately $32,000 in transcript costs that represent the cost to produce daily transcripts at trial. Because, as explained below, the parties agreed that the daily transcripts would be the record on appeal, we conclude that plaintiff is entitled to recover the cost of those transcripts.
As noted, defendant objects to the deferred payment charges that are included in plaintiffs attorney-fee petition. Plaintiff contends that, because he incurred the charges as part of the cost of his representation by his attorneys, and ORS 742.061 is intended “to make insureds whole,” the charges should be recoverable as part of the attorney-fee award.
We turn to the dispute over the cost of the transcript. The three parties involved in the trial (one of which,
Plaintiff now seeks his share of the cost of the dailies—$32,746.15—in addition to the cost of obtaining final trial transcripts and transcripts of other proceedings required for the appeal, which totals $13,273.80. Defendant objects to the expense of the dailies on two grounds.
First, it argues that the cost of dailies is not a recoverable cost under ORS 20.310(2), which provides:
“Costs and disbursements on appeal * * * are the filing or appearance fee, the reasonable cost for any bond or irrevocable letter of credit, the prevailing party fee provided for under ORS 20.190, the printing, including the excerpt of record, required by rule of the court, postage for the filing or service of items that are required to be filed or served by law or court rule, and the transcript of testimony or other proceedings, when necessarily forming part of the record on appeal.”
(Emphasis added.) In defendant’s view, the dailies were for use at trial and were not “necessarily” incurred to create the record on appeal. Second, defendant argues that plaintiffs request is inconsistent with the cost-sharing agreement among the parties to pay for the dailies because the parties said nothing in their agreement about whether the prevailing party could seek the expense of that party’s share of the dailies as a cost on appeal.
“(2) Except as provided in subsection (3) of this section, a reporter employed by one of the parties may charge fees as agreed to between the reporter and all of the parties to the proceeding for preparing transcripts on appeal. The reporter and the parties must agree to the fees to be charged before the commencement of the proceeding to be recorded. A share of any fees agreed upon shall be charged to parties joining the proceeding after the commencement of the proceeding.
“(5) Except as otherwise provided by law, the fees for preparing a transcript requested by a party shall be paid forthwith by the party, and when paid shall be taxable as disbursements in the case.”
ORS 21.345 (emphasis added). Thus, plaintiff concludes, he entered into an agreement for paying the reporter and paid his share consistently with ORS 21.345(2), and now his share of the transcript fees is an allowable cost, as provided in ORS 21.345(5). Plaintiff argues that, although he agreed to share payment, he never waived his right to request reimbursement of his share as costs, nor did any party suggest that the sharing agreement would constitute a waiver of a right to recover the transcript fees as costs. Finally, plaintiff notes that defendant sought its share of the dailies as a cost in the trial court under ORCP 68 A.
There is little case law on the subject. The only Oregon case on dailies is Klutschkowski v. PeaceHealth, 245 Or App 524, 263 P3d 1130 (2011), aff'd in part and rev’d in part on other grounds, 354 Or 150,311 P3d 461 (2013). There, we held that dailies were not recoverable as costs in the trial court under ORCP 68 A because a clause in former ORS 21.470 (2009), renumbered as ORS 21.345 (2011), authorized recovery of costs for preparing transcripts on appeal but not at trial. 245 Or App at 549-51.
In sum, we agree with two of defendant’s objections and, accordingly, award attorney fees in an amount $107,583.25 less than plaintiff requested, but otherwise reject defendant’s objections to plaintiffs request for an award of attorney fees and costs.
Petitions for attorney fees and costs allowed in the amount of $516,977.77 in attorney fees and $46,758.35 in costs.
As support for his position, plaintiff relies on an unpublished order of this court that included deferred payment charges in an attorney-fee award. The statute on which we relied to award those charges, former ORS 197.352(6) (2005), repealed by Or Laws 2007, ch 424, § 4, is materially different from the statute at issue in this case, ORS 742.061(1), and we are not persuaded that our unpublished order provides any authority on the issue.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.