Punitive damages are determined by juries in Oregon. Despite recent efforts in some states to limit the scope of punitive damages available to litigants in court cases, the Oregon Courts have consistently allowed large punitive damage awards, if the jury has evidence to conclude that the conduct was sufficiently reprehensible. In this regard, the Oregon Courts give great deference to the jury’s determination of what is appropriate. They will not independently overrule the jury because they have come to a different conclusion about what is appropriate. Although the evidence in support of punitive damages must be clear and convincing, the standard of proof “relates how a jury weighs the evidence, not to how a trial court assesses the capability of the evidence to establish facts.” See Faber v. Asplundh Tree Expert, 106 Or App 601, 606, 810 P2d 384, rev den, 312 Or 80 (1991). Also see Bolt v. Influence, Inc. 333 Or 572, 578 n 2, 43 P3d 425 (2002).
In the December issue of the Multnomah Lawyer (“One Extra Dollar: The Impact of Attorney Fee Awards in Small Claims”), the author took issue with a fee-shifting statute that hundreds of Oregon lawyers regularly utilize in comparatively modest claims to achieve fair outcomes against insurance companies. As two such lawyers, we are writing to share our perspectives.
In claims seeking no more than $10,000 in damages to person or property, ORS 20.080 states that when a plaintiff makes a properly-supported pre-filing demand and provides at least 30 days to respond, if the case can’t be settled and the plaintiff eventually recovers more in litigation than the best pre-filing offer, the plaintiff will be entitled to her reasonable attorneys’ fees, as well as her damages.
The author correctly notes that, “ORS 20.080 was passed in 1947 to address the problem of small tort claims [...] Insurers in particular had discovered they could simply defend against every claim, and since the legal cost of prosecution was likely to exceed the claim’s economic value, there was no practical way for a claimant to ever collect.” This is as true today as it was in 1947. In fact, the insurance companies that defend these claims have become more aggressive with low-balling tactics than at any point in recent memory, and regular Oregonians with modest tort claims need the protection of this law more than ever before.