Rossi v. State Farm Mutual Automobile Insurance , 90 Or. App. 589 ( 1988 )

752 P.2d 1298 (1988) 90 Or.App. 589

Debra ROSSI, Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE Insurance Company, Respondent.

16-84-06629; CA A41936.

Court of Appeals of Oregon.

Argued and Submitted October 9, 1987. Decided April 20, 1988.

Robert J. Guarrasi, Eugene, argued the cause for appellant. With him on the briefs was Malagon & Moore, Eugene.

Donald A. Loomis, Eugene, argued the cause for respondent. With him on the brief was Loomis & Tomlinson, Eugene.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Plaintiff brought this action against defendant, her automobile insurer, after it refused to pay a number of her claims arising out of an automobile accident. The trial court granted defendant's motions to dismiss most of the "causes of action" in plaintiff's complaint and amended complaints on the ground that they failed to state facts sufficient to constitute claims. The principal basis for those rulings was that plaintiff alleged tort theories in the challenged claims, but only contract relief was available to her. Plaintiff also pleaded a breach of contract claim in which she sought damages and attorney fees under ORS 743.114. Included in the attorney fees sought were those that she incurred in an arbitration proceeding, which she initiated and pursued successfully and which she understands to have been a "prerequisite to the institution of this litigation." The trial court granted defendant's motion to strike the allegation pertaining to attorney fees for the arbitration proceeding. The court then entered a judgment dismissing one of the three claims in plaintiff's second amended complaint with prejudice and a stipulated judgment dismissing her other claims, including the contract claim, without prejudice. Plaintiff appeals. We affirm.

Six of plaintiff's seven assignments of error challenge the dismissal of her claims which alleged common law or purported statutory torts by defendant and its agents. However, under the facts alleged in the complaints, plaintiff was not entitled to proceed on any of her tort theories, and any judicial recourse she might have is by an action on the contract. See Farris v. U.S. Fid. and Guar. Co., 284 Or. 453, 587 P.2d 1015 (1978); Employers' Fire Ins. v. Love It Ice Cream, 64 Or. App. 784, 670 P.2d 160 (1983). Plaintiff relies on Porter v. Utah Home Fire Insurance Co., 58 Or. App. 729, 650 P.2d 130 (1982), as support for the contrary conclusion. However, the language in Porter to which she points was disavowed in Love It Ice Cream. 64 Or. App. at 791, 670 P.2d 160.

Plaintiff also challenges the dismissal of her "outrageous conduct" claim. We hold that no claim was stated by plaintiff. Her allegations show nothing more than a typical disagreement between an insurer and an insured over the existence of compensable events and the amount of compensation. None of the specific conduct that plaintiff alleges that defendant and its agents committed approached bad faith, egregiousness or the limits of social toleration. See State Farm Ins. Co. v. Berg, 70 Or. App. 410, 689 P.2d 959 (1984), rev.den. 298 Or. 553, 695 P.2d 49 (1985).

In her remaining assignment, plaintiff ascribes error to the court's striking of her claim for reasonable attorney fees which she incurred in the arbitration proceeding. ORS 743.114 provides, in pertinent 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 therefrom." (Emphasis supplied.)

Defendant argues, in essence, that the striking of the allegation is not reviewable, because the contract claim through which plaintiff sought attorney fees has been dismissed without prejudice. We agree. Whether the fees incurred in the arbitration proceeding may be included in any attorney fees which plaintiff might recover in an action on the contract cannot be determined at this time, because no such action is pending. See Meadowbrook v. Groves, 60 Or. App. 26, 652 P.2d 842 (1982). Regardless of what fees may be included in an award under ORS 743.114, it is clear that an award under that statute can only be made by a court in an action on an insurance contract.

Affirmed.