Send Clear and Unambiguous Written Settlement Tenders or Face the Fees: Oregon Court of Appeals Rejects Ambiguous Email Settlement Offer as ‘Tender’ in ORS 20.080 Cases.

From the Desk of Cliff J. Wilson:

When is a pre-filing settlement offer not really a settlement offer? The Oregon Court of Appeals makes it clear that not all pre-filing settlement offers operate to avoid paying a plaintiff’s attorney fees in ORS 20.080 cases.

Claims Pointer:

The Oregon Court of Appeals held that an ambiguous email offer to settle an ORS 20.080 claim did not qualify as a valid “tender” under Oregon law. To avoid paying attorney fees in ORS 20.080 cases, defendants must make written, unambiguous, and unconditional settlement offers.

Frost v. Jacobs, 330 Or. App. 61 (2024)

Facts Summary:

In Frost v. Jacobs, following a physical altercation, plaintiff Timothy Frost filed a battery claim against defendant Justin Jacobs seeking $10,000.  Defendant Jacobs filed his own suit against Frost, seeking $47,000 for assault and battery. In that action, Frost counterclaimed for $40,000 for malicious prosecution.  The two lawsuits were consolidated, and at trial, the jury awarded Frost $1,087 in damages on his original claim but rejected Jacobs’s claim and Frost’s counterclaim.

Prior to the filing of Frost’s suit, he sent a letter to Justin Jacobs demanding $10,000 and referred to ORS 20.080, an Oregon Statute that provides for a mandatory attorney fee award to the prevailing party in tort actions for $10,000 or less if the plaintiff recovers more than any pre‑filing settlement tender. He sent a similar letter to Jacobs’s wife (Jenni Jacobs), asserting a claim against her for false arrest.

In response to those 20.080 letters, Jacobs’s insurance agent sent an email offering to settle Frost’s claims against Mr. Jacobs for $5,100, inclusive of all issues, and the claim against Mrs. Jacobs for $1,086, inclusive of all issues.  He concluded the email by saying, “If our offer is acceptable, I will send you the release of all claims.” Frost rejected that offer.

Following the trial, Frost sought attorney fees and costs under ORS 20.080.  The trial court denied Frost’s fee request, reasoning that Plaintiff’s battery claim for $10,000 and his malicious prosecution counterclaim for $40,000 should be treated as claims in a single action, which meant that his claims exceeded the ORS 20.080 statutory limit of $10,000. The trial Court also ruled that Mr. Jacobs’s pre-trial tender of $5,100 exceeded the amount the jury ultimately awarded him. 

Frost appealed.

Law:

The Oregon Court of Appeals focused on two key legal questions:

1. Whether ORS 20.080, which governs attorney fee awards in tort cases under $10,000, applied to Frost’s action for battery only, or the aggregate of his battery action and his malicious prosecution counterclaim; and
2. Whether Jacobs’s email offer to settle constituted a valid “tender” under the statute, which could operate to preclude an award of attorney fees.

Analysis:

The Oregon Court of Appeals reversed the trial court’s decision and ruled that Frost was entitled to his attorney fees under ORS 20.080. The appellate court emphasized the importance of ORS 20.080 in incentivizing fair settlements and ensuring plaintiffs can pursue low-dollar but legitimate claims without undue financial burden.

Next, the Court of Appeals analyzed the issue of whether the trial Court should have aggregated the Plaintiff’s damages claims, ultimately holding that claims for the purposes of ORS 20.080, Plaintiff’s separate actions remain separate, even if they have been consolidated.  Therefore, he could be awarded attorney fees under the statute for his original battery claim.

Finally, the Court addressed Justin Jacobs’s insurer’s pre-filing settlement offer email. The Court concluded that the statute requires more than just an offer, stating that —a formal tender requires either the actual production of money or an unconditional written offer of payment that serves the same purpose.  Here, the Court of Appeals held that because the email was ambiguous as to whether it was making two separate settlement offers or whether the offers were dependent on one and could only be accepted together, it was not a valid “tender” for purposes of ORS 20.080.

Big Picture:

This case serves as a reminder that when trying to protect from attorney fees in Oregon low-dollar tort cases, when responding to any written demand seeking damages of $10,000 or less, only written, unambiguous, and unconditional settlement offers will qualify as pre-filing tenders under the statute. Sending an email that does not qualify as a valid tender may give rise to the award of attorney fees.