Strawn v. Farmers Insurance

210 February 22, 2013 No. 7
753 Or v. 22, 2013 Ins. Co.
3
Strawn Farmers
2013
February
IN THE SUPREME COURT OF THE
STATE OF OREGON
Mark STRAWN,
on his own behalf and as representative of
a class of similarly situated persons,
Petitioner on Review/Respondent on Review,
v.
FARMERS INSURANCE COMPANY OF OREGON,
an Oregon stock insurance company;
Mid-Century Insurance Company,
a foreign corporation;
and Truck Insurance Exchange,
a foreign corporation,
Respondents on Review/Petitioners on Review,
and
FARMERS INSURANCE GROUP INC.,
a foreign corporation,
Defendant.
(CC 9908-09080; CA A131605;
SC S057520 (Control), S057629)
On petitions for attorneys fees filed June 23, 2011, August
11, 2011, and February 13, 2012; resubmitted January 7,
2013.
Richard S. Yugler, Landye Bennett Blumstein LLP,
Portland, filed the petitions for attorney fees and costs for
Petitioner on Review/Respondent on Review.
P. K. Runkles-Pearson and James N. Westwood, Stoel
Rives LLP, Portland, filed the responses/objections to the
petitions for attorney fees for Respondents on Review/
Petitioners on Review.
Before Balmer, Chief Justice, and Kistler, Linder,
Landau, Brewer, and Baldwin, Justices.*
______________
*  Walters, J., did not participate in the consideration or decision of these
petitions.
Cite as 353 Or 210 (2013) 211
LINDER, J.
The petitions for attorney fees for proceedings following
the decision of the Court of Appeals are allowed in part and
denied in part as follows. Strawn is awarded $72,724.75
in attorney fees and expenses not part of attorney fees
($70,299.90 and $2,424.85 respectively), that amount to
be paid by Farmers under ORS 742.061(1). Strawn also is
awarded another $297,850.74 in attorney fees and expenses
not part of attorney fees ($291,012.10 and $6,838.64
respectively on all three fee petitions), that amount to be
paid from the punitive damages award in this case. Strawn
is awarded a $5,000 class incentive fee to be paid from the
punitive damages award in this case. The request for class
administration fees is denied without prejudice to Strawn
seeking an award of those fees by appropriate application
to the trial court. Farmers’s motion to stay issuance of the
appellate judgment is dismissed as moot.
Mark Strawn, plaintiff in a class action case against defendant Farmers
Insurance Company of Oregon et al. (Farmers), had prevailed on review in Strawn
v. Farmers Ins. Co., 350 Or 336, 258 P3d 1199, adh’d to on recons, 350 Or 521,
256 P3d 100 (2011), cert den, ___ US ___, 132 S. Ct. 1142, 181 L. Ed. 2d 1017 (2012).
Strawn then petitioned for awards of attorney fees, some to be paid by Farmers
and others to be paid from the punitive damages awarded on behalf of the class.
Strawn also sought a $5,000 incentive fee for serving as the class representative.
Farmers opposed the petitions. Held: (1) On the facts of this case, it was appropriate
for the court to check the amount of attorney fees calculated using a lodestar
method (reasonable hours times reasonable hourly rate) by comparing it to the
amount recovered on behalf of the class; (2) on the facts of this case, Strawn’s
attorneys were not entitled to a multiplier of their reasonable attorney fees to
compensate for their having taken the case on a contingent fee basis; (3) Strawn
was allowed expenses that were not part of his attorney’s hourly rate; (4) Strawn
was not entitled to post-decision, prejudgment interest on attorney fees awarded
by the Court of Appeals and the Supreme Court; and (5) Strawn was entitled to a
$5,000 class incentive fee.
The petitions for attorney fees for proceedings following the decision of the
Court of Appeals are allowed in part and denied in part as follows. Strawn is
awarded $72,724.75 in attorney fees and expenses not part of attorney fees
($70,299.90 and $2,424.85 respectively), that amount to be paid by Farmers under
ORS 742.061(1). Strawn also is awarded another $297,850.74 in attorney fees and
expenses not part of attorney fees ($291,012.10 and $6,838.64 respectively on all
three fee petitions), that amount to be paid from the punitive damages award
in this case. Strawn is awarded a $5,000 class incentive fee to be paid from the
punitive damages award in this case. The request for class administration fees is
denied without prejudice to Strawn seeking an award of those fees by appropriate
application to the trial court. Farmers’s motion to stay issuance of the appellate
judgment is dismissed as moot.
212 Strawn v. Farmers Ins. Co.
LINDER, J.
Mark Strawn, the plaintiff in this class action
case, has petitioned for an award of attorney fees and costs
incurred for the appellate work done on review before
this court in Strawn v. Farmers Ins. Co., 350 Or 336, 258
P3d 1199, adh’d to on recons, 350 Or 521, 256 P3d 100
(2011), cert den, ___ US ___, 132 S. Ct. 1142, 181 L. Ed. 2d
1017 (2012). In addition, Strawn seeks two supplemental
fee awards: one for the cost of litigating the fee petition,
and the other for the cost of defending against a petition
for certiorari in the United States Supreme Court after
this court issued its decision. Finally, Strawn asks this
court to award him a $5,000 incentive fee for his service on
review as class representative. As we discuss in more detail
later, the attorney fee awards that Strawn seeks are of
two kinds. One is a so-called “fee-shifting award” pursuant
to ORS 742.061(1) (set out later in this opinion), which
would be paid by defendants Farmers Insurance Company
of Oregon et al. (collectively, Farmers).1 The other is a
so-called “common-fund” award, which would be paid from
the punitive damages recovery in the class action. Farmers
raises various challenges to the fees requested in the main
fee petition, in both supplemental fee petitions, and in the
motion for an incentive fee.
Preliminarily, we observe that this court often
resolves attorney fee petitions by order, rather than written
opinion. The court does so because most fee petitions present
few or no legal issues, and instead entail fact-bound or case-
specific questions of entitlement to and reasonableness of
the fees requested. This case, likewise, presents certain
disputes that are fact-bound and case-specific. We resolve
those issues with limited discussion, consistent with our
practice of ordinarily resolving them by order.
In this instance, however, the petitions and
objections also present legal issues that are appropriate to
resolve by opinion. Those issues include: (1) the appropriate
method for determining the amount of a reasonable fee
award in a case that involves both a statutory fee-shifting
1
There are three defendants in this case: Farmers Insurance Company of
Oregon, Mid-Century Insurance Company, and Truck Insurance Exchange.
Cite as 353 Or 210 (2013) 213
award and a common-fund award; (2) the propriety of
applying a multiplier to the awards; (3) how fees should
be apportioned between the fee-shifting and the common-
fund awards; (4) whether this court has authority to award
attorney fees for work done in opposing a petition for writ of
certiorari to the United States Supreme Court; (5) whether
a court has authority to award post-opinion, prejudgment
interest on court-awarded attorney fees; and (6) whether an
appellate court may award a class representative a class
incentive fee on appeal and review.
I. BACKGROUND
We begin with a brief outline of this litigation, to
provide background for our discussion of the requested
fees. Strawn filed a class action against Farmers raising
two contractual claims (breach of contract and breach
of the covenant of good faith) and one common law claim
(fraud) in connection with auto insurance policies written
by Farmers.2 The contractual claims were premised on the
common legal and factual theory that Farmers did not pay
personal injury protection (PIP) benefits in the full amount
owed under the auto insurance policies; the fraud claim
was premised on the related theory that Farmers deceived
the plaintiff class members by preventing them from being
aware that Farmers was not paying their PIP benefits in the
full amount owed. Strawn, 350 Or at 343, 352-53. The jury
found for the class on the contractual claims and the fraud
claim, and it made a single award of compensatory damages
on those claims. In addition, and for the fraud claim only,
the jury awarded punitive damages. Consistently with the
jury’s verdict, the trial court entered a judgment awarding
the class approximately $900,000 in compensatory damages
(which included prejudgment interest) and $8 million in
punitive damages. Id. at 344. The trial court also awarded
Strawn attorney fees totaling over $3.1 million. Of that
amount, over $2.6 million was a fee-shifting award to be
paid by Farmers; about $500,000 was a common-fund award
to be paid from the punitive damages awarded to the class.
2
Strawn also sought and prevailed on a declaratory judgment claim, but that
claim is not a basis for the attorney fees that Strawn seeks.
214 Strawn v. Farmers Ins. Co.
Farmers appealed. The Court of Appeals rejected
Farmers’s challenges to liability but agreed with Farmers
that the $8 million awarded in punitive damages was
excessive under federal due process standards. See Strawn
v. Farmers Ins. Co., 228 Or App 454, 485, 209 P3d 357
(2009), aff’d in part and rev’d in part, 350 Or 336, 258 P3d
1199 (2011). The Court of Appeals determined that punitive
damages of four times plaintiffs’ actual harm was the most
that was constitutionally permissible; consequently, the
court remanded the case for a new trial on punitive damages,
unless plaintiffs agreed to remittitur of punitive damages to
approximately $3.6 million (the maximum punitive damages
that the court found constitutionally permissible, plus
interest). Id. The Court of Appeals also rejected Farmers’s
challenge to the amount of the fee-shifting award that the
trial court ordered it to pay. See id. at 457 (summarizing
court’s conclusions). The court later issued a second opinion
awarding Strawn attorney fees for work done on appeal
totaling $585,441 (according to our calculations). The bulk
of that amount ($544,305) was awarded as a fee-shifting
award payable by Farmers; the remainder ($41,136) was
a common-fund award payable from the punitive damages
recovery. See Strawn v. Farmers Ins. Co., 233 Or App 401,
410, 418, 422, 426, 226 P3d 86 (2010) (figures not including
cost awards).
Both Strawn and Farmers sought review by this
court. Strawn asserted that the Court of Appeals had erred
in reducing the punitive damages award. Farmers argued
that the Court of Appeals had not reduced the punitive
damages enough to comport with constitutional standards;
Farmers also raised challenges that went to its liability on
the contractual and fraud claims. Strawn, 350 Or at 339. In
their respective petitions for review, neither party raised
any issue about the attorney fee awards made by the trial
court or the Court of Appeals.3
3
Farmers filed a separate petition for review asking this court to vacate the
fees awarded by the Court of Appeals in the event that Farmers prevailed in this
court on its challenges to the trial court’s award on the merits. That petition,
however, did not otherwise raise any substantive challenge to the previous awards.
Cite as 353 Or 210 (2013) 215
This court allowed both petitions for review.
Ultimately, this court rejected Farmers’s challenges to
liability. Id. at 344-62. On the punitive damages award, this
court agreed with Strawn that Farmers had failed to raise
its challenge on appeal in a way that permitted to Court of
Appeals to reach the issue. Consequently, this court did not
reach the parties’ due process arguments about the amount
of punitive damages that could constitutionally be awarded;
instead, we affirmed the $8 million punitive damage award
because of the procedural posture of Farmers’s challenge.
Id. at 369-70. On Farmers’s petition for reconsideration, this
court issued a written opinion adhering to its prior opinion.
Strawn v. Farmers Ins. Co., 350 Or 521, 256 P3d 100 (2011).
II.  ATTORNEY FEES
As we previewed at the outset, Strawn seeks two
types of attorney fee awards. The first is a statutory fee
award pursuant to ORS 742.061(1).4 That statute directs
trial and appellate courts to award attorney fees against the
defendant in an action to recover on an insurance policy, if
the plaintiff’s recovery exceeds the amount of any tender in
the case. Such an award typically is referred to as a “fee-
shifting” award, because the prevailing party’s attorney
fees are shifted to the losing party. In this case, as Strawn
agrees, ORS 742.061(1) authorizes a fee-shifting award
against Farmers for the work done only on the contractual
claims (breach of contract and breach of implied covenant of
4
The citation is to the 1997 version of ORS 742.061, which provided, in part:
“(1)  Except as otherwise provided in subsections (2) and (3) of this section,
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.”
In 1999, the legislature amended ORS 742.061 to add an exception that
potentially bars recovery of attorney fees in a case such as this. Or Laws 1999,
ch 790, § 1 (exception when insurer fails to pay PIP benefits if insurer accepted
coverage, only issue is amount of benefits, and insurer consented to submit case
to binding arbitration). Although Farmers argued that the amendment applied
retroactively to this case, the Court of Appeals rejected that argument, and that
issue was not presented to this court on review. See Strawn, 228 Or App at 486-87
(analyzing amendment). Accordingly, we apply the 1997 version of the statute to
this case. All citations in this opinion are to that version.
216 Strawn v. Farmers Ins. Co.
good faith and fair dealing). That statute does not authorize
attorney fees on the common law fraud claim or the punitive
damages award.
Consequently, for work in furtherance of the fraud
claim and associated punitive damages, Strawn seeks
attorney fees from the punitive damages award itself,
pursuant to the so-called “common-fund” doctrine. That
doctrine generally applies when a party has litigated to
create or preserve a monetary fund on behalf of others,
as occurs in a successful class action for damages. Rather
than shift the plaintiff’s litigation expenses to the losing
party, the common-fund doctrine permits the burden of
those expenses to be shared among those who benefitted
from the litigant’s efforts by allowing plaintiff’s lawyers to
be paid from the common fund created or preserved by the
litigation. The doctrine is an equitable one, premised on the
theory that those benefitted by the common fund would be
unjustly enriched if they did not share in the cost of creating
or preserving that fund that would otherwise be borne by
the party that pursued the litigation. See Strunk v. PERB,
341 Or 175, 181-84, 139 P3d 956 (2006) (discussing common-
fund doctrine). In the context of class-action litigation
specifically, the common-fund doctrine permits attorney fee
awards from a monetary judgment that benefits the class.
See generally Alba Conte & Herbert B. Newberg, 4 Newberg
on Class Actions § 14:2, 512 (4th ed 2002) (“When the class
action successfully recovers a fund for the benefit of a class,
it is long settled that the attorneys who created that class
recovery are entitled to be reimbursed from the common
fund for their reasonable litigation expenses, including
reasonable attorney’s fees.”). The Oregon procedural
rule governing class actions, ORCP 32, appears to codify
the common-fund doctrine by authorizing a reasonable
fee award to be paid from any recovery awarded to the
class when the judgment can be divided for that purpose.
Compare ORCP 32 M(1)(c) (“If the prevailing class recovers
a judgment that can be divided for the purpose, the court
may order reasonable attorney fees and litigation expenses
of the class to be paid from the recovery.”) with State Farm
Mut. Auto. Ins. v. Clinton, 267 Or 653, 657, 518 P2d 645
(1974) (describing common-fund doctrine in similar terms).
Cite as 353 Or 210 (2013) 217
A.  Methodology for Determining Attorneys Fees
1.  Prevailing Methodologies for Fee Awards
For an attorney fee awarded either pursuant to
a fee-shifting statute or the common-fund doctrine, the
touchstone for the amount of the award is the same—
reasonableness. See ORS 742.061(1) (court to fix fee in
“reasonable amount” in action on insurance policy); ORCP
32 M(1)(c) (court may order “reasonable attorney fees” in
class action); Strunk, 341 Or at 184 (common-fund doctrine
permits award of “reasonable fees” assessed to the fund).
In determining what amount of fee is reasonable, two
basic methods of calculation are generally available. One
is the so-called “lodestar” method, by which the attorney is
awarded a fee based on a reasonable hourly rate, multiplied
by a reasonable number of hours devoted to work on the
case, with certain adjustments potentially made to that
amount for factors such as the risk of loss and the quality
of the attorney’s work. See Conte & Newberg, 4 Newberg
on Class Actions § 14:5 at 541-42. The other is the so-called
“percentage method” (percent-of-fund) method, which sets
the fees by calculating the total recovery secured by the
attorneys and awarding them a reasonable percentage of
that recovery. Id. § 13:80 at 493. In general, the lodestar
methodology is thought to more directly account for the
amount of work done, while the percent-of-fund method
more directly reflects the result achieved. See generally id.
§ 14:5 at 541; Alba Conte, 1 Attorney Fee Awards § 1:8, 23-24
(3d ed 2004).
Traditionally, in both state and federal courts, the
percent-of-fund method has been the prevalent means of
calculating the reasonable fee award in common fund cases.
Conte & Newberg, 4 Newberg on Class Actions § 13:80 at
493. During the 1970s, however, the lodestar approach
gained favor in common fund cases, largely as a result of
the federal Third Circuit Court of Appeals decision in Lindy
Bros. Bldrs. v. American R. & S. San. Corp., 487 F2d 161
(3d Cir 1973) (reversing trial court attorney fee award
based on the percent-of-fund methodology). The favor was
relatively short-lived. In the mid-1980s, the Third Circuit
convened a task force to review the “widespread belief that
218 Strawn v. Farmers Ins. Co.
the deficiencies of the [lodestar approach] either offset or
exceed[ed] its benefits.” Third Circuit Task Force, Court
Awarded Attorney Fees, 108 FRD 237, 246 (1986). The task
force concluded, among other problems, that calculating
a lodestar and adjusting it for factors such as quality of
representation and risk undertaken created an unwarranted
“sense of mathematical precision,” was insufficiently
objective, was burdensome and unmanageable for courts,
and encouraged lawyers to devote excessive or unnecessary
hours to the litigation. Id. at 246-49.5
Because of “myriad problems posed” by calculating
attorney fees under a Lindy-type lodestar approach, the
task force made various recommendations for change. Id.
at 273-74. Foremost among them was the importance of
distinguishing between traditional common fund cases
and cases involving statutory fees, which reflect differing
policies. Id. at 250. In a common fund case, the goal is
to equitably share the burden of litigation among those
benefitted by the fund. Statutory fee cases, on the other
hand, shift the burden of litigation to the losing party to
serve other goals. In many statutory fee provisions, the
goal is to “encourage private enforcement of the statutory
substantive rights,” both economic and noneconomic. Id.
Many statutory fee cases thus involve “important issues of
social policy or civil rights,” and may result in either very
low monetary recoveries or, as in the case of declaratory or
injunctive relief, no monetary recovery at all. Id. at 253.
The task force therefore concluded that the basic lodestar
methodology, as refined by recommendations that the task
force made, should be retained in most statutory fee cases.
Id. at 259. But it advocated abandoning the lodestar method
in traditional common fund cases, as well as in statutory
5
As the task force further observed:
“Perhaps the sharpest attack on the Lindy regime is the claim that
its preoccupation with attorneys’ time and market rates encourages the
expenditure of excessive or unnecessary hours * * *. Quite understandably,
district judges find it difficult, indeed, in most instances, impossible, to police
these matters by looking over the shoulders of lawyers to monitor the way
they handle their cases. To impose that obligation on the Bench is unrealistic,
unduly time-consuming, and typically will amount to little more than an
exercise in hindsight.”
Id. at 262 (footnote omitted).
Cite as 353 Or 210 (2013) 219
fee cases that are likely to result in a settlement fund from
which adequate counsel fees can be paid. Id. at 255-56. For
those cases, the task force concluded, a percent-of-fund
method was the preferable approach. Id.
In the years since the Third Circuit’s report, the
lodestar method of fee calculation, despite the criticisms it
has faced, has become the prevailing approach in statutory
fee-shifting cases, largely because a formula based on a
percentage of the recovery is not usually available. See
Conte, 1 Attorney Fee Awards § 2:7 at 85 (describing trend
in the law during and after 1980s). In common fund cases,
however, federal and state courts alike have increasingly
returned to the percent-of-fund approach, either endorsing
it as the only approach to use, or agreeing that a court
should have flexibility to choose between it and a lodestar
approach, depending on which method will result in the
fairest determination in the circumstances of a particular
case. Conte & Newberg, 4 Newberg on Class Actions §13:80
at 496 (describing many federal jurisdictions as having
either abandoned lodestar approach or given trial courts
flexibility to use percent-of-fund analysis in its place; state
courts “overwhelmingly” use percent-of-fund method rather
than lodestar approach).
Finally, because neither method has proven to be
without flaws, courts do not always confine themselves to
one or the other.6 Rather, there is a trend towards using
a blended approach, in which a court may calculate the
fee based on the percent-of-fund method and then, by
comparing that fee to what the lodestar approach would
produce, check the reasonableness of the result. Conte,
6
As Conte observes in his treatise on attorney fee awards, neither method is
inherently better than the other or particularly satisfying in terms of predictability
or consistency:
“What has now emerged in most fee-award decisions is a recognition that
fee determinations in both common-fund and statutory-fee situations are
incapable of mathematical precision because of the intangible factors that
must be resolved in the court’s discretion based on the circumstances of each
particular case. There is also the recognition that rigid adherence to any fee-
formula approach which attempts to assign precise weights or multipliers
to particular factors is an exercise that gives an impression of artificial
precision to what essentially must be a sound judgment call by the court after
considering the relevant factors as applied to the particular case involved.”
1 Attorney Fee Awards § 2:7 at 85 (footnote omitted).
220 Strawn v. Farmers Ins. Co.
1 Attorney Fee Awards § 2:6 at 69, 78 (describing tandem
use of lodestar and percent-of-fund approaches as cross-
check on reasonable fee; growing recognition of shortfalls
of lodestar approach); Conte & Newberg, 4 Newberg on
Class Actions § 13:80 at 496-97 (state and federal courts
often use hybrid approach to cross-check reasonableness
of fee award). That approach has been most often used in
so-called “hybrid” class actions that are initiated under a
statute with a fee-shifting provision, but that later, through
settlement or judgment, result in a common fund recovery
for the class. Conte & Newberg, 4 Newberg on Class Actions
§ 14:10 at 605. The blended approach is usually used to
ensure the reasonableness of a percent-of-fund award.
Conte & Newberg, 4 Newberg on Class Actions § 14:7 at
172 (Supp 2012). Courts also have used it, however, to test
the reasonableness of a fee calculated through the lodestar
method by checking the lodestar fee against what the
percent-of-fund method would yield when there is a common
fund available for that purpose. Id. Conte, 1 Attorney Fee
Awards § 2:6 at 69-70 (in practice courts often compare
results of both methods).
2.  Methodology in This Case
This court has never attempted to assess the
appropriate methodology to be applied to common fund and
statutory fee-shifting cases generally. Nor have the parties
done so in this case. Rather, as they did at trial and on
appeal to the Court of Appeals, the parties have assumed
that the lodestar methodology is the appropriate one to use
for both the statutory fee-shifting and the common-fund
awards; likewise, the trial court and the Court of Appeals,
without discussing the correct methodology, used the
lodestar approach for both the common fund and fee-shifting
awards. Strawn, however, invites something of a blended
approach through his arguments to this court. In particular,
in assessing the reasonableness of the lodestar fee and the
adjustments to it that he proposes, Strawn compares the
overall fee that he requests to the amount that his attorneys
would have received under his contingent fee agreement
with them, which was based on a percentage of the damages
awarded.
Cite as 353 Or 210 (2013) 221
The lodestar approach that the parties have used
is at least a permissible one under the statutes involved.7
Because the parties have structured their principal
arguments around that approach, we begin there as well. We
also conclude, however, that a percent-of-fund methodology
is a helpful cross-check on the lodestar calculation, for two
reasons. First, this case is a “hybrid” one—that is, it is a class
action that resulted in a significant common-fund award,
even though it was brought at least partially pursuant to a
statute authorizing a fee-shifting award.8 A percent-of-fund
methodology fits with the nature of the relief that plaintiff
and the class recovered in this case. See Strunk, 343 Or at
246 (in cases that result in a common fund recovery, the
“fund itself is a primary measure of success”).
7
Neither a lodestar or a percent-of-fund approach is mandated by the statutes
involved, although both are potentially permissible. ORS 20.075 sets out criteria
to assess the reasonableness of all court-awarded attorney fees. That statute does
not specify any particular methodology for the award, but it does instruct the court
to consider the amount of time required by the case, given the difficulty of the
questions involved and the skill necessary. ORS 20.075(2)(a). The emphasis is
expressly on the time required by the issues involved, not the time actually spent;
the lodestar method initially measures the latter. Actual time spent, however,
is at least relevant to assessing the time required. At the same time, the statute
also looks to the “amount involved in the controversy and the results obtained,”
ORS 20.075(2)(d), which the percent-of-fund approach more directly measures in
a common fund case or other case involving a significant monetary award. We
therefore conclude that the statute, although not mandating either a lodestar or
percent-of-fund methodology, does not foreclose either.
The same is true of the provision governing fee awards in class actions.
Among other factors, the applicable rule explicitly considers “[t]he time and
effort expended by the attorney,” as well as the “[r]esults achieved and benefits
conferred upon the class,” ORCP 32 (M)(1)(e)(i) and (ii). The rule suggests that
either or both a lodestar and percent-of-fund method of fee calculation can be
appropriate, depending on which methodology best arrives at a fair award given
the circumstances of the particular case.
8
Worth noting in that regard is that ORS 742.061(1) applies to actions
brought on insurance policies of any kind. The statute thus provides for an award
of attorney fees in essentially private contractual disputes whether they involve a
modest loss to an automobile owner, a massive loss to a corporation, or a dispute
between insurers. Unlike many statutorily authorized fee-shifting awards, the
award authorized by ORS 742.061(1) is not designed to ensure the availability of
counsel to pursue socially desirable policies in cases that counsel might otherwise
not be willing to pursue. The statute instead serves the different purpose of
encouraging settlement of insurance claims without litigation. Compare Chalmers
v. Oregon Auto. Ins. Co., 263 Or 449, 452, 502 P2d 1378 (1972) (identifying that
as the purpose for the statutory predecessor to ORS 742.061(1)) with Honeywell
v. Sterling Furniture Co., 310 Or 206, 213, 797 P2d 1019 (1990) (fees available in
unlawful trade practices cases assure that wronged consumers can obtain counsel
to prosecute claims that would otherwise be impractical to bring).
222 Strawn v. Farmers Ins. Co.
Second, plaintiffs prevailed on two independent, if
related, types of claims: contract-based and fraud. Both are
fee-generating claims, but each looks to a different source for
the fee. As we have already described, for the contract claims,
Strawn’s attorneys are entitled to a fee-shifting award to
be paid by Farmers. For the fraud claim and the punitive
damages component of the case, the attorney fee award
comes from the common fund itself. In a case involving both
a fee-shifting award and a common-fund award, counsel
appropriately should be paid reasonable fees from both
authorized sources to further the purpose of each award;
conversely, “allowing recovery under only one partially
thwarts the object of the other.” Honeywell v. Sterling
Furniture Co., 310 Or 206, 213, 797 P2d 1019 (1990). Because
this case generated a significant monetary recovery on both
types of claims, some of which ($900,000 in compensatory
damages) is attributable equally to both, but much of which
($8 million in punitive damages) is attributable only to one
(the fraud claim), a percent-of-fund method is particularly
appropriate to test the reasonableness of the attorney fee
awards to be made. Quite simply, it would overlook the
realities of this litigation—in which the incentive to pursue
the litigation was the potential monetary recovery—to not
account for the amount of the fund recovered in determining,
or at least cross-checking, the total amount of attorney fees
that Strawn’s attorneys will receive.9
B.  Main Fee Petition
As we earlier described, Strawn has filed a series of
petitions and supplemental petitions seeking attorney fees
to be paid in part by Farmers and in part from the punitive
damages awarded to the class. We consider each of those
petitions, and the issues that they raise, in turn, beginning
with Strawn’s main fee petition.
9
As Conte observes:
“A common-fund fee award that does not consider the amount of the fund
produced as the controlling guideline in setting a reasonable fee under
prevailing market conditions runs afoul of the economics and practicalities of
a plaintiff-litigation practice.”
1 Attorney Fee Awards § 2:7 at 105.
Cite as 353 Or 210 (2013) 223
1.  A Reasonable Base Lodestar Fee
Strawn’s main petition for attorney fees requests
fees for work done in seeking review by this court, in
resisting Farmers’s petition for review, and in briefing the
merits on both petitions. In that petition, Strawn presents
billings listing the number of hours worked on those
stages of the case, multiplies those hours by the billing
rates for the attorneys and other staff who worked them,
and calculates a base lodestar accordingly. Strawn then
argues for adjustment of that lodestar through a multiplier,
principally to compensate his attorneys for the contingent
nature of any fee they would receive, which in turn entailed
the risk of nonpayment and delay in receiving any fee from
either the common fund or Farmers.
Farmers challenges some of the discrete billings
by Strawn’s attorneys, arguing that they are for work that
the attorneys either should not have performed or for which
they should not have billed. With one exception, we reject
those challenges without further discussion. The exception
is a $575 charge for 2.5 hours that an attorney spent
driving to and from Salem to deliver replacement pages
for Strawn’s response brief, which Strawn now concedes
are not allowable. We agree with Strawn’s concession and,
accordingly, we have deducted the amount of that billing
from all figures in this opinion.
Farmers’s more significant challenge is to the
reasonableness of the overall time spent by Strawn’s
attorneys on the briefing and other work involved in
litigating the case at this court’s level. In total, for work
done after the Court of Appeals decision and until this
court issued its opinion, Strawn’s attorneys spent a total
of 1,252.55 hours. For those hours of work, Strawn seeks a
base fee award of $412,807.00. In addition, Strawn asks this
court to apply multipliers to the base amounts, resulting in
a total requested fee of $760,063.12 for work done on review
to this court.10
10
Strawn applies different multipliers for the fee-shifting and common-fund
awards that he seeks (1.6 times amounts attributed to the fee-shifting award, and
2.0 times amounts attributed to the common-fund award). We later discuss how the
hours are apportioned between the two fee categories. We omit that information
here, however, because including it would unnecessarily complicate the process of
determining whether the total number of hours incurred was reasonable.
224 Strawn v. Farmers Ins. Co.
In response, Farmers does not challenge the hourly
rates claimed by Strawn’s counsel, but it does challenge the
reasonableness of the number of hours. See ORS 20.075(2)(a)
(requiring court to consider the amount of time required by
the case, given the difficulty of the questions involved and
the skill necessary). In support of that challenge, Farmers
offers the testimony of an expert that 614.3 hours would
have been reasonable for the work done before this court,
for a total fee award of $202,719. Farmers also opposes the
use of any multipliers to the base fee award.
We have evaluated the factors prescribed by ORS
20.075,11 and we agree with Farmers that those factors do
not support the amount of fees that Strawn requests. In
particular, we have considered the novelty, difficulty, and
skill needed to perform the legal services required of the
case on review by this court. In that regard, we have taken
into account the fact that the issues had been previously
and extensively briefed at the Court of Appeals level, that
Strawn’s attorneys were already intimately familiar with the
record, and that many of the issues turned on fairly narrow
procedural points that were neither novel or unusually
11
ORS 20.075(2) directs the court to consider the following factors in
determining the amount of fees to be awarded:
“(a) The time and labor required in the proceeding, the novelty and
difficulty of the questions involved in the proceeding and the skill needed to
properly perform the legal services.
“(b)  The likelihood, if apparent to the client, that the acceptance of the
particular employment by the attorney would preclude the attorney from
taking other cases.
“(c)  The fee customarily charged in the locality for similar legal services.
“(d)  The amount involved in the controversy and the results obtained.
“(e)  The time limitations imposed by the client or the circumstances of the
case.
“(f)  The nature and length of the attorney’s professional relationship with
the client.
“(g)  The experience, reputation and ability of the attorney performing the
services.
“(h)  Whether the fee of the attorney is fixed or contingent.”
Subsection (2) of ORS 20.075 requires the court to consider, in addition, “the
factors specified in subsection (1).” Subsection (1) lists factors that ordinarily are
considered in deciding whether to make a discretionary award of fees. We do not
list those factors here, because we conclude that they do not inform the proper
disposition of this particular fee petition.
Cite as 353 Or 210 (2013) 225
difficult (such as preservation).12 The case was complex,
but not unusually so for a civil case involving such a large
damages award, and not as complex as many cases that come
before this court. In our view, the approach that both parties
took to the case complicated it more than necessary and the
court was less aided by the parties’ advocacy as a result. See
generally Chalmers v. Oregon Auto. Ins. Co., 263 Or 449,
455-56, 502 P2d 1378 (1972) (in determining reasonable
attorney fee, court considers assistance provided by party
seeking fee, including efficiency of briefing and helpfulness
of advocacy). Strawn, as the party seeking an award of
fees, has the burden of establishing the reasonableness
of the fee amount that he requests. Hillsboro v. Maint. &
Const. Serv., 269 Or 169, 172, 523 P2d 1036 (1974) (where
opposing party objects to attorney fee request, burden
of proving reasonableness of fees rests on party seeking
them). We have considered Strawn’s arguments in favor of
the number of hours his attorneys expended (1,252.22) as
against the estimate by Farmers’s expert of a reasonable
number of hours for the work done at this court’s level (614.3
hours). We are persuaded by Farmers’s expert.13 Multiplied
by the average rate of $330 per hour charged by Strawn’s
attorneys,14 we conclude that a reasonable lodestar fee for
the work done on review to this court is $202,719.
12
As the Court of Appeals aptly observed in its opinion awarding attorney fees
in this case for the work done on appeal:
“Appellate work is not identical to trial work. As the prevailing party at trial
and the respondent on appeal, plaintiffs were entitled to certain favorable
standards of review. The prosecution of the case at trial was more risky than
the defense of the judgments on appeal. In addition, plaintiffs’ efforts in
arguing from a closed record on appeal cannot be equated with their efforts in
creating that record at trial.”
Strawn, 233 Or App at 417.
13
We have reviewed the attorney fee orders that this court has awarded from
the year 2000 forward. Strawn’s requested amount of fees appears unprecedented.
Equally unprecedented would be an award at the reduced amount that Farmers’s
expert identified as reasonable. Although that fact is not determinative, it does
have legitimate bearing, especially given that this case is not the high water mark
of complex cases coming to this court.
14
Farmers’s expert relied on that average rate to calculate a reasonable fee
based on the total hours that he concluded would have been reasonable to devote
to the work involved. Although Strawn, in response, took issue with the expert’s
opinion on the reasonableness of the hours devoted to the case, Strawn did not
take issue with the average hourly rate that the expert used.
226 Strawn v. Farmers Ins. Co.
2.  Whether to Adjust the Lodestar for Contingency
ORS 20.075(2)(h) directs a court, in setting a
reasonable attorney fee, to consider whether the attorney
fee is fixed or contingent. Strawn relies on ORS 20.075(2)(h)
as supporting an enhanced award in this case through the
use of a multiplier. He contends, essentially, that a mere
hourly award would compensate his attorneys significantly
below the amount that they would receive if they were paid
on a contingent fee basis, thus failing to account for the risk
that his attorneys incurred agreeing to undertake the case.15
In support, Strawn compares the amount of attorney
fees already awarded by the trial court and Court of Appeals
to the amount that his counsel would have been entitled to
receive under the terms of the contingent fee agreement that
Strawn and his attorneys negotiated. The contingent fee
agreement with Strawn (as class representative) entitles his
attorneys to a percentage of the “gross recovery to all class
members”—50 percent if the case goes to appeal.16 Strawn
asserts that the gross recovery for the class is $12,114,305,
which consists of the general judgment of $8,900,000,
plus fee-shifting attorney fee awards against Farmers of
$2,670,000 by the trial court and $544,305 by the Court of
Appeals. Strawn asserts that the attorney fees awarded to
date are only 31 percent of that gross recovery—well below
the 50 percent provided in the contingency fee agreement.
15
As Conte explains:
“It is axiomatic that attorneys who work on a contingent-fee basis must
charge a higher fee than those who work on a noncontingent-fee basis, to
compensate them for the risk of loss and the risk of receiving no compensation
for services rendered and to permit them to earn an income that would be
competitive with colleague who get paid, win or lose.”
1 Attorney Fee Awards § 1:8 at 23-24 (footnote omitted). Neither party in this
case has explored the legislative history of ORS 20.075(2)(h) to determine
whether, as Strawn assumes, the legislature intended that provision to authorize
a multiplier to account for contingency. For present purposes, we may assume,
without deciding, that it does, because (as we later explain) we conclude that the
fees awarded are reasonable without any multiplier. In this case, therefore, it
suffices to note that courts that have used the lodestar methodology to determine
a reasonable fee have divided over the question of how any enhancement to the
lodestar for contingent fee cases should be calculated, a division illustrated by the
three opinions in Pennsylvania v. Del. Valley Citizens’ Council, 483 U.S. 711, 107 S
Ct 3078, 97 L. Ed. 2d 585 (1987).
16
More specifically, the fee agreement entitles counsel to the greater of 50
percent of the class recovery or the fees actually awarded by the court.
Cite as 353 Or 210 (2013) 227
As we earlier noted, that comparison by Strawn
invites a percent-of-fund method of calculating the attorney
fee as a check on the lodestar calculation. And as we have
already explained, such an approach seems particularly
appropriate in this case, because this litigation resulted
in a significant common fund for which a percent-of-fund
approach is generally considered to be an appropriate way
to calculate a reasonable attorney fee. Strawn’s calculation,
however, reflects three significant errors.
First, Strawn incorrectly includes the fee-shifting
attorney fee awards as part of the gross recovery subject to
the contingent fee. Doing so amounts to a form of double-
counting. The client would be charged a percentage of
not only the fund recovered under the judgment, but also
an added percentage based on the attorney fees that the
attorney will recover from the other side. Because of that
double-counting problem, fee-shifting attorney fee awards
may not be considered as part of the gross recovery subject
to a contingent fee, at least in the absence of a specific fee
agreement to the contrary. See Chalmers, 263 Or at 453-54
(noting possibility of holding that fee-shifting award could
“be added to the amount of the judgment in determining
the total amount of recovery subject to the contingent fee
percentage,” but rejecting such a rule absent a specifically
negotiated fee agreement that so provides).17 The fee
agreement in this case, which is part of the record, does not
17
Chalmers noted the “basic unfairness” to a client who expects the attorney
to be fully paid by the contingent fee, only to learn that the attorney will claim
both the contingent fee and a fee awarded by the court. 263 Or at 454. The court
recognized that an attorney and client might (subject to the attorney’s ethical
obligations) negotiate a fee agreement to calculate the fee in that or some other
way, because an agreement would not create any surprise or unfairness. Id. In the
absence of a specific provision, however, any fee-shifting award must be credited
against the amounts due under the contingency fee agreement:
“If * * * the contingent fee agreement makes no specific reference to any
possible attorney fee which may be awarded by the court and makes no
specific provision for the manner in which any such fee is to be considered in
computing the amount, source, and manner of distribution of the contingent
fee, we hold that any attorney fee awarded by the court shall be offset as a
credit or deduction from the amount of the agreed contingent fee, as computed
upon the basis of the amount of the judgment.”
Id. If the fee-shifting award is large enough, then the client would be entitled to
the full amount of the judgment, despite the contingent fee agreement. Id. at 454-
55.
228 Strawn v. Farmers Ins. Co.
provide for the contingent fee to be calculated by adding
any fee-shifting award to the damages. We conclude, then,
that the fee-shifting attorney fee awards made in this case
should not be included in the total recovery for purposes
of calculating the contingent fee. Instead, the contingent
fee applies only to the total damages (compensatory plus
interest, and punitive damages) awarded to the class based
on the jury’s verdict: $8,900,000. So calculated, the amount
of attorney fees that Strawn’s attorneys have received to
date (that is, at trial and before the Court of Appeals) is not
31 percent, as Strawn claims. It is, instead, 42 percent.
The second error is that Strawn’s calculations fail
to reflect the statutory limit on the contingent fee that could
be collected in this case. The class was awarded $900,000
in compensatory damages and $8 million in punitive
damages, for a total of $8.9 million. Strawn assumes that
the contingent fee would be half of that, or $4.45 million.
But the legislature, by statute, has limited the contingent
fee that may be paid from a punitive damages award.
Specifically, under former ORS 18.540(1)(a) (1999),18 no
more than 20 percent of a punitive damages award may be
awarded to a plaintiff’s counsel as attorney fees. In this case,
the maximum contingent fee amount payable to Strawn’s
counsel from the punitive damages award would be $1.6
million. That amount, added to half the compensatory
damages ($450,000), equals $2,050,000.
That figure—slightly over $2 million—represents
the largest contingent fee that, consistently with former
ORS 18.540(1)(b) (1999), Strawn’s attorneys could have
received from the class recovery for litigating this case,
notwithstanding the negotiated fee agreement. Necessarily,
Former ORS 18.540(1)(a) (1999) provided, in part:
18
“Forty percent [of the award of punitive damages] shall be paid to the
prevailing party. The attorney for the prevailing party shall be paid out of the
amount allocated under this paragraph, in the amount agreed upon between
the attorney and the prevailing party. However, in no event may more than 20
percent of the amount awarded as punitive damages be paid to the attorney
for the prevailing party.”
Former ORS 18.540 (1999) has since been renumbered as ORS 31.735 and was
amended in 2011. Or Laws 2011, ch 689, § 1; Or Laws 2011, ch 597, § 311. Those
amendments are not relevant to the disposition of this case.
Cite as 353 Or 210 (2013) 229
then, it is also the “reasonable market expectation” that
Strawn’s attorneys would have had for taking the risk of
litigating this case for a contingent fee. The trial court
and Court of Appeals, however, have already awarded
Strawn’s attorneys over $3 million in attorney fees. Thus,
relative to the amount they would have received under the
contingent fee agreement, Strawn’s attorneys are not being
undercompensated by the base lodestar fee.
The third error in Strawn’s calculation is his use
of a 50-percent contingent fee that he and his attorneys
negotiated as the appropriate comparison for a percent-of-
fund analysis. As Strawn concedes, a court is not bound by
that agreement in determining a reasonable fee to be paid
from the class recovery under the common-fund doctrine.19
Strawn nevertheless presumes that a 50-percent fee would
be appropriate in this case. We disagree.
For individual litigation, the normal range for a
reasonable contingent fee is between 33 and 40 percent of
any recovery, with 50 percent usually serving as the upward
limit. Conte, 1 Attorney Fee Awards § 2:8 at 123 (describing
usual range) and § 2:8 at 106 (stating general upward limit).
Class actions, however, generally benefit from significant
economies of scale and generate proportionately larger
common funds than do individually litigated cases. Id.
§ 1:9 at 27 and 2:7 at 104.20 Because of that reality, courts
frequently reduce the percentage of the fund awarded below
what would be awarded in individual litigation. Id. § 2:7 at
104. Thus, for complex class actions that result in substantial
economic recoveries, the normal fees tend to be between 20
to 30 percent of the recovered fund, with deviations from
19
Specifically, Strawn acknowledges:
“[G]iven a court’s unique authority in class-action proceedings and the
necessity of ensuring that no conflict or adversity arises between the class
and class counsel, the proper procedure in Oregon should ensure that attorney
fee awards in class-action proceedings are always subject to the control of
the court in which the class-action proceeding is pending, regardless of any
written fee agreement.”
(Emphasis in original.)
20
Said another way, from a contingent-fee practice market-based perspective,
“class action lawyers working to generate common funds are in big business, while
individual contingent-fee practitioners are in small business, generally speaking.”
Conte, 1 Attorney Fee Awards § 1:9 at 26.
230 Strawn v. Farmers Ins. Co.
that range when the fund is extraordinarily large or small
relative to the hours of work reasonably expended by the
attorneys. Id. § 2:8 at 106-14; see also Conte & Newberg,
4 Newberg on Class Actions § 14:6 at 550 (20 to 33 percent
is usual range for securities and antitrust litigation). A
50 percent-of-fund fee remains the usual upward limit, so
that the fee does not consume a disproportionate portion of
the fund recovered. Conte, 1 Attorney Fee Awards § 2:8 at
106; Conte & Newberg, 4 Newberg on Class Actions § 14:6
at 550. But such a percentage is extraordinary. The median
of the usual range—25 percent—is used by many courts
as a reasonable starting point for common-fund awards in
class actions, with deviations made based on circumstances
justifying an upward or downward adjustment. Conte,
1 Attorney Fee Awards § 2:8 at 113.
Here, the contingent fee agreement that Strawn
and his attorneys entered into was at the upward limit: 50
percent of any fund awarded. For present purposes, we will
assume (but need not decide) that that percentage might have
been appropriate if this case had been litigated for Strawn
in his individual capacity only. In this class action, however,
Strawn’s attorneys benefitted from significant economies of
scale. They were able to rely on evidence that was common
to all the class members, rather than having to produce
individualized proofs of the terms of their contracts, the
acts that breached those contracts, and the reliance by the
class members that was necessary to prove the fraud claim.
Strawn, 350 Or at 340-44 (describing legal and factual basis
for claims); id. at 351-62 (holding that reliance for fraud
claim did not have to be established through individual
proofs, but could be inferred from evidence common to
class). And the class action aspect of the case undoubtedly
aided Strawn in obtaining the $8 million punitive damages
award, which depended on proof of reprehensibility through,
among other class-based evidence, a showing of repeated,
rather than isolated, wrongdoing. See generally Goddard
v. Farmers Ins. Co., 344 Or 232, 253, 179 P3d 645 (2008)
(discussing reprehensibility factor that supports award of
punitive damages). Thus, because this was a class action
case, Strawn’s attorneys likely generated a much larger
common-fund award for significantly less effort than would
Cite as 353 Or 210 (2013) 231
have been entailed in bringing individual claims for each
class member.21
The remaining question is: What should an
appropriate percent-of-fund fee be in this class action? The
parties have not considered that question, and we conclude
that we need not identify a particular percentage at this
juncture. The total amount of attorney fees that Strawn’s
attorneys received at trial and in the Court of Appeals
already amounts to 42 percent of the common recovery
awarded to the class, and therefore already exceeds the
normal range for class actions awards. This is not a case
that has resulted in an exceptionally small common-fund
award, which might justify going above that normal range.
Thus, the comparison demonstrates that no enhancement of
the lodestar calculation is warranted.
On Strawn’s main petition for attorney fees,
then, we reject Strawn’s request for a multiplier or other
enhancement of the base award of $202,719.
3. Apportioning Fees Between Fee-Shifting and
Common-Fund Awards
What we have discussed so far is independent of
how the fees should be allocated between the fee-shifting
and common-fund awards. On that issue, Strawn asserts
that about 40 percent of the fees sought in the main petition
qualify for the fee-shifting award against Farmers, while
60 percent of those fees qualify for the award from the
common fund. Farmers does not dispute Strawn’s allocation,
with the exception of the percentage allocation that Strawn
seeks for the post-opinion proceedings and the attorney fee
petition. We accept Strawn’s proposed allocation, to the
extent that Farmers does not dispute it.22 Of the $171,600
21
Indeed, such efficiencies are a prerequisite to maintaining a class action.
See ORCP 32 B (trial court must find that “a class action is superior to other
available methods for the fair and efficient adjudication of the controversy”).
22
Strawn has allocated all common work performed on the fee-shifting
(contract) and common-fund (fraud) claims to the fee-shifting award only. That
approach seems problematic. This is not a case that involves both a fee-generating
and non-fee-generating claim. See, e.g., Estate of Wesley E. Smith v. Ware, 307 Or
478, 481, 769 P2d 773 (1989) (statutory fees can be awarded for work on both fee-
generating and non-fee-generating claims, where work done on claim for which
fee is authorized would have been incurred regardless of the non-fee-generating
232 Strawn v. Farmers Ins. Co.
in attorney fees whose apportionment Farmers does not
dispute, we therefore conclude that $59,268 should be
apportioned to the fee-shifting award and $112,332 to the
common-fund award. We turn to the disputed allocation for
the post-opinion proceedings and the attorney fee petition.
In that regard, Strawn asks this court to attribute to
the fee-shifting award 99 percent of the time spent preparing
the fee petition and responding to two post-opinion motions
filed by Farmers: a petition to reconsider the opinion, and a
motion to recuse one justice and, because of the recusal, to
rehear the case. This court denied both motions by written
opinion. Strawn, 350 Or at 521. Farmers’s expert asserts that
only 10 percent of the time spent responding to the petition
to reconsider and the motion to recuse should be attributed
to the fee-shifting award, while the time spent preparing
the attorney fee petition should be divided equally between
the fee-shifting award and the common-fund award.
We agree that Strawn’s allocation of 99 percent
of that time to the fee-shifting award is not appropriate.
Significant portions of the work necessarily benefitted the
common-fund claims only. On reconsideration, for example,
the only issue presented related to this court’s holding as to
the fraud claim (i.e., the petition for reconsideration asserted
that this court had improperly eliminated the reliance
requirement of fraud by permitting classwide reliance
to be inferred from evidence common to the class rather
than established by individualized proof).23 As we have
claim). Rather, here, both the contract and fraud claims are fee-generating claims,
with the fees payable from different sources. To the extent that work on the claims
was common to both, so that either claim would have required that same work
regardless of the existence of the other, the more logical approach would be for
the two sources for the awards to bear the fees for the common work equally.
See Honeywell, 310 Or at 213 (to further purpose of each award, reasonable
attorney fee award should be paid from both authorized sources where case
involves both statutory fee award and common-fund award from punitive damages
recovery). Farmers has not objected to Strawn’s allocation on that basis, however.
Consequently, we accept Strawn’s proposed allocation without agreeing that his
method of allocating all work common to both claims to the fee-shifting award is
the appropriate one.
23
Farmers’s petition did also seek reconsideration based on the same facts
that underlay Farmers’s motion to recuse. Recusal and rehearing would have
affected the two contractual claims that were subject to a fee-shifting award under
ORS 742.061(1), as well as the fraud claim. Strawn’s response to the petition for
reconsideration, however, merely incorporated by reference his response to the
Cite as 353 Or 210 (2013) 233
noted and as Strawn has conceded, the fee-shifting award
authorized by ORS 742.061(1) does not apply to the fraud
claim. Consequently, reasonable fees for time that Strawn’s
attorneys spent responding to the petition to reconsider
should be borne by the class, not shifted to Farmers.
Similarly, although Strawn’s petition for attorney
fees included time subject to a fee-shifting award, the petition
addressed two matters that are not subject to a fee-shifting
award: the requests for a common-fund award and for class
administration fees. By definition, Strawn’s entitlement to
a common-fund award was independent of the fee-shifting
award. And although the class administration fees may be
recoverable from the trial court under ORS 742.061(1), those
fees had nothing to do with the issues on appeal or review,
and the Court of Appeals had already ruled that they were
not properly sought on appeal, Strawn, 233 Or App at 410
(a ruling that Strawn did not challenge before this court).
For those reasons, we are satisfied that Strawn’s
proposed allocation—one percent to the common-fund award
and 99 percent to the fee-shifting award—is not justified.
The problem, however, is that the time records presented
by Strawn provide insufficient information to determine
the correct allocation. Strawn, as the party seeking the
award, has the obligation to provide sufficient information
to justify the fee award. Farmers has agreed, however, that
10 percent of the amount spent responding to the petition to
reconsider and motion to recuse ($1,131.90 of $11,319) and
50 percent of the amount spent responding to the attorney
fee petition ($9,900 of $19,800) are properly apportioned to
the fee-shifting claims. In light of Farmers’s position, we
will apportion the hours attributable to the post-opinion
proceedings and the attorney fee petition to the fee-shifting
award accordingly. We conclude that the remainder is
properly payable from the common fund.
Accordingly, we apportion the $202,719 in attorney
fees that we have approved in connection with the original
fee petition as follows. Strawn is awarded $70,299.90
(the $59,268 undisputed portion of the fee award plus
motion to recuse. Thus, the hours attributable to the motion to recuse fully account
for the time Strawn’s attorneys spent working on that issue.
234 Strawn v. Farmers Ins. Co.
$11,031.90 of the fees incurred in connection with the post-
opinion proceedings and attorney fee petition) as a fee-
shifting award payable by Farmers under ORS 742.061(1),
which equals approximately 35 percent of the reasonable
fees incurred. The remaining amount, $132,419.10, which
is approximately 65 percent of the total, is awarded under
the common-fund doctrine, to be paid from the punitive
damages recovery in this case.
D.  Supplemental Fee Petitions
Strawn has filed two supplemental petitions for
attorney fees. The first supplemental fee petition seeks
additional fees incurred to address post-opinion proceedings
in this court as well as to prepare for an anticipated petition
for certiorari to the United States Supreme Court by
Farmers. The second supplemental fee petition seeks fees
incurred in contesting Farmers’s certiorari petition before
the United States Supreme Court. Farmers objects to both
supplemental petitions.
We begin with Strawn’s first supplemental petition
for attorney fees. Strawn asks for $22,945 in fees, part of
which is attributable to addressing Farmers’s objections
to the original attorney fee petition, and part of which
is attributable to responding to an anticipated petition
for certiorari to the Supreme Court of the United States.
Farmers objects to the time sought by the first supplemental
petition that related to Farmers’s expected petition for
writ of certiorari to the United States Supreme Court—
specifically, time that Strawn’s attorneys spent discussing
the petition for certiorari, responding to Farmers’s motion
for stay pending certiorari, and negotiating with Farmers
about the supersedeas bond. Farmers asserts that those
fees were premature, because Strawn’s request in the
first supplemental fee petition preceded the filing of the
certiorari petition. That is no longer true; Farmers since has
petitioned the United States Supreme Court for certiorari,
and the Court has since denied that petition. Accordingly,
we overrule Farmers’s only objection (that the request is
premature) and allow those fees.
Neither party addresses to what extent the
attorney fees claimed in the first supplemental fee petition
Cite as 353 Or 210 (2013) 235
should be apportioned between the fee-shifting award and
the common-fund award. As Strawn concedes in his second
supplemental petition, however, the work done in responding
to Farmers’ certiorari petition is fairly attributable only to
the fraud claim, which presented a potential federal question
and was the exclusive focus of that petition. Likewise, the
work done in anticipating the certiorari petition was also
fairly attributable only to the fraud claim. Strawn has
provided no documentation that would permit this court
to determine what portion of the remaining fees sought
in the first supplemental fee petition should be awarded
against Farmers and what portion should be awarded from
the common fund. We therefore decline to make such an
allocation between the two awards. We conclude, however,
that the fees requested by the first supplemental fee petition
are reasonable in amount, and that they were reasonably
incurred by Strawn’s attorneys in defending the damages
awards that accrued to the benefit of the class as a whole.
Those amounts are therefore appropriate to award from the
common fund. Accordingly, we award Strawn $22,945 in
attorney fees on the first supplemental fee petition, to be
paid from the punitive damages as a common-fund award.
We turn, then, to the second supplemental fee
petition. In that petition, Strawn seeks fees that his counsel
incurred in defending against Farmers’s petition for
certiorari to the United States Supreme Court. Strawn seeks
a base award of $135,648 as compensation for 274.5 hours
of legal work. As with the original fee petition, Strawn asks
this court to impose a multiplier to those fees to compensate
for the contingent nature of the award. Strawn concedes that
none of those fees is attributable to the fee-shifting award;
he seeks them only as a common-fund award. Farmers
objects on a several grounds.24
24
Strawn argues that we should not consider Farmers’s objections, asserting
that they are untimely because they were filed more than 14 days after Strawn
filed the second supplemental fee petition. See ORAP 13.10(6) (allowing 14 days to
object to attorney fee petition).
Strawn’s position is not well-taken. Strawn’s second supplemental fee petition
was deficient because it lacked the proof of service required by our rules. See
ORAP 1.35(2)(d) (“Anything filed with the Administrator shall contain * * * proof
of service in the form of a statement of the date and manner of service * * *.”).
This court issued a notice of deficiency requiring Strawn to submit a certificate
of service within 14 days or “the defective document will not be considered by the
236 Strawn v. Farmers Ins. Co.
Farmers first objects that this court lacks authority
to award fees incurred before the United States Supreme
Court. Relatedly, Farmers objects that there is no authority
to award attorney fees to Robert Peck, Strawn’s counsel of
record in the Supreme Court, because that attorney is not
admitted to practice in Oregon.
If Strawn were seeking to recover for that work
through the fee-shifting award authorized by ORS
742.061(1), Farmers’s arguments might be well taken
because the statute authorizes a fee award only on an action
brought “in any court in this state.” In this instance, however,
Strawn seeks those fees only from the punitive damages
award under the common-fund doctrine. As we have already
explained, the common-fund doctrine is an exercise of equity
to prevent unjust enrichment. The right to recover for unjust
enrichment does not depend on the unjust enrichment
having occurred in court proceedings. See Dan B. Dobbs, 1
Dobbs Law of Remedies § 4.1(2), 557-63 (2d ed 1993) (listing
broad categories of cases where plaintiff may be entitled to
restitution from defendant for unjust enrichment, including
when defendant breached contract, when defendant
obtained title to property by wrongdoing, or when plaintiff
conferred benefit on defendant by contract based on mistake
or unforeseen change in conditions). The question, then, is
not whether fees resulted from attorney representation in
this court, or in any court at all. The question is whether
the other class members would be unjustly enriched by
receiving the benefits of that representation without having
to pay for it. We have already concluded that they would.
Accordingly, we have authority to award the requested fees
from the common fund.
Farmers additionally asserts that Strawn’s
attorneys incurred an unreasonable number of hours in
opposing the petition for certiorari. Among other responses,
Strawn asserts that Farmers’s petition contained numerous
factual misrepresentations. For that reason, he was obligated
court.” See ORAP 1.20(2) (authorizing court to strike any document that does not
conform to any statute or rule). Because this court had given notice that the fee
petition might effectively be stricken, the time for Farmers to respond to the fee
petition was tolled. Farmers filed its objections within 14 days of the deficiency
being cured.
Cite as 353 Or 210 (2013) 237
to file a brief to correct those perceived misstatements, or
risk waiving any objection to them. See S Ct Rule 15.2 (party
potentially waives objection if brief in opposition does not
address any perceived misstatements made in the petition
for certiorari, including factual misstatements). Farmers did
not submit any expert affidavit that would otherwise bring
into question the reasonableness of the number of hours
expended by Strawn’s counsel to respond to the petition for
certiorari. For those reasons, we reject Farmers’s argument
that the number of hours were unreasonable.
Finally, Farmers objects to Strawn’s request for
a multiplier on the attorney fees claimed in the second
supplemental petition. We agree with Farmers that a
multiplier is not appropriate for the same reasons that we
concluded that a multiplier or other enhancement to the
lodestar was not appropriate in connection with the original
fee petition. We need not repeat that analysis at any length.
As we have explained, the amount of fees that Strawn’s
attorneys have received to date (42 percent of the total
class recovery) already compares favorably—and, indeed,
potentially exceeds—a properly calculated reasonable
percent-of-fund fee. With the attorney fees that we are
awarding for work done on review to this court, Strawn’s
attorneys will receive an amount that equates with an even
greater percentage of the total recovery (approximately 46
percent).25 An enhancement to the lodestar fee that we have
already determined is reasonable therefore is not warranted.
25
To be clear, the amount of attorneys fees awarded through all stages of this
case (trial, appeal, and now review) is slightly over $4 million, which is about 46
percent of the total common fund, but most of that amount is not being paid from
the common fund. When the final math is done, the total amount of fees shifted
to Farmers, given the multipliers applied by the trial court and Court of Appeals,
exceeds $3.2 million, which is about 80 percent of the total attorney fees awarded.
The class, on the other hand, will bear a total of $837,148.10 (including the fees
awarded in this court), or about 20 percent of the total attorney fees awarded for the
litigation. As those numbers reveal, from a percent-of-fund perspective, Farmers
has significantly subsidized the fees that would otherwise be due from the punitive
damages recovery. That is true even though Farmers is responsible for shifted fees
only on the contractual claims and the compensatory damages recovery (about
$900,000) and is not responsible for the work done on the fraud claim and punitive
damages award ($8 million). Whether those respective amounts, viewed from
a percent-of-fund perspective, represent a fair apportionment of the fees is not
before us, because it is a consequence of the amounts awarded by the trial court
and the Court of Appeals, which have not been drawn into question on review.
238 Strawn v. Farmers Ins. Co.
On the second supplemental fee petition, then, we
award Strawn $135,648 in attorney fees, payable from the
punitive damages award under the common-fund doctrine.
II.  EXPENSES NOT PART OF HOURLY RATE
Strawn has asked this court to award him expenses
that are not part of his attorneys’ hourly rates, such as
internal photocopying and computerized legal research.
Strawn sought expenses of $6,928.15 in his main fee petition,
$686.99 in his first supplemental fee petition, and $1,648.35
in his second supplemental fee petition. Farmers poses
no objection to those expenses. We therefore allow them.
See Willamette Prod. Credit v. Borg-Warner Acceptance,
75 Or App 154, 159, 706 P2d 577 (1985), rev den, 300 Or
477 (1986) (“Modern electronic accounting methods allow
a more specialized billing for attorney fees. Courts should
recognize the reality of modern legal business practices and
include expenses specially billed to the client in the attorney
fees award when they are properly documented and are
reasonable.”).
The $1,648.35 in expenses sought by Strawn’s
second supplemental fee petition is payable entirely from
the common-fund award. Similarly, we conclude that the
$686.99 in expenses sought in Strawn’s first supplemental
fee petitions also should be paid entirely from the common
fund; those expenses should follow the underlying attorney
fees sought by that supplemental fee petition, which (as we
have already explained) are payable only as a common-fund
award. The expenses sought by the original fee petition,
however, must be apportioned between the fee-shifting
claims and the common-fund claims. Neither Strawn nor
Farmers makes any suggestion as to how those expenses
should be apportioned. Because the expenses relate
principally to the work done during the petition for review
and merits stages of the proceeding before us, we conclude
that it is appropriate to apportion the expenses in the same
ratio that we apportioned the attorney fees awarded on the
main fee petition: 35 percent to the fee-shifting award and
65 percent to the common-fund award.
Cite as 353 Or 210 (2013) 239
Accordingly, we award Strawn $2,424.85 in expenses
as a fee-shifting award, all from the original fee petition.
We also award Strawn $6,838.64 in expenses as a common-
fund award, representing expenses of $4,503.90 from the
original fee petition, $686.99 from the first supplemental fee
petition, and $1,648.35 from the second supplemental fee
petition.
III.  POST-DECISION, PREJUDGMENT INTEREST
ON FEE AWARD
Strawn asks this court to award him post-decision,
prejudgment interest on the appellate attorney fee awards—
interest that begins accruing when the fees are granted,
not when the appellate judgment issues. Thus, Strawn
seeks interest on the Court of Appeals’ attorney fee award
beginning January 27, 2010, the date that the Court of
Appeals issued its opinion granting those fees. Similarly,
Strawn asks that interest on this court’s attorney fee awards
begin accruing on the date that this court awards them, not
on the date that the appellate judgment issues.
Generally, interest cannot be awarded in the
absence of either a contract or a statutory provision
authorizing it. See Dowling v. Albany Planing Mill, 238
Or 425, 431, 395 P2d 143 (1964) (“[I]n the absence of an
agreement to pay interest, interest can be recovered only
in those circumstances authorized by statute.” (citation
omitted)); Sorenson v. Oregon Power Co., 47 Or 24, 34, 82 P.
10 (1905) (“In the absence of a contract to pay interest, the
right to exact it must be found in the statute[.]” (citation
omitted)). As statutory authority for prejudgment interest
here, Strawn invokes ORS 82.010(1)(a), which authorizes
an award of interest on “[a]ll moneys after they become
due.”26
26
Specifically, ORS 82.010(1) provides:
“The rate of interest for the following transactions, if the parties have
not otherwise agreed to a rate of interest, is nine percent per annum and is
payable on:
“(a)  All moneys after they become due; but open accounts bear interest
from the date of the last item thereof.
“(b)  Money received to the use of another and retained beyond a reasonable
time without the owner’s express or implied consent.
240 Strawn v. Farmers Ins. Co.
As we observed in McDowell Welding & Pipefitting v.
US Gypsum Co., 345 Or 272, 288-89, 193 P3d 9 (2008), most
claims for prejudgment interest arise under ORS 82.010
when the person from whom prejudgment interest is sought
has breached a duty to pay money (subsection (1)(a)) or has
wrongfully failed to return money to the person to whom it
belongs (subsection (1)(b)). Litigation may be necessary to
determine that the duty to pay or return money has been
breached. But if a plaintiff prevails in such an action, the
breach does not occur at the time of judgment. It is, instead,
a past event. For litigation of that kind, the question whether
the court may order prejudgment interest usually reduces
to whether the amount due was readily ascertainable. See,
e.g., Public Market Co. v. Portland, 171 Or 522, 625, 138
P2d 916 (1943) (prejudgment interest can be awarded on
unliquidated damages for contract breach when “the demand
is of such a nature that its exact pecuniary amount was
either ascertained, or ascertainable by simple computation,
or by reference to generally recognized standards such as
market price” (quoting Theodore Sedgwick, 1 A Treatise on
the Measure of Damages § 300, 571 (9th ed 1912) (emphasis
in original)).
An appellate court’s award of attorney fees is not
in that posture, however. To be sure, when an appellate
court by order or decision awards attorney fees to a party,
the amount becomes ascertainable. It does not, however,
immediately become due. Rather, by statute, an appellate
court attorney fee award is not effective until the appellate
judgment issues. See ORS 19.450(2) (“appellate judgment is
effective when a copy of the appellate judgment is entered
in the [appellate] court’s register and mailed by the State
Court Administrator to the court from which the appeal
was taken”). In effect, entry of judgment creates a monetary
obligation that does not exist until that event occurs. An
appellate court decision or order awarding the fees declares
that such fees should be paid and sets their amount, but the
legal obligation to pay arises only once the court’s appellate
judgment is entered in the register.
“(c)  Money due or to become due where there is a contract to pay interest
and no rate specified.”
Cite as 353 Or 210 (2013) 241
That result is consistent with the justification for
the general rule, reflected in ORS 82.010(1)(a), that interest
accrues on money only after it “becomes due.” Once due,
the debtor has the use of money to which the debtor is not
entitled, while the delay in payment deprives the creditor
of that use. See 1 Dobbs Law of Remedies § 3.6(1) at 333
(“Interest is the sum paid or payable for the use or detention
of money. Just as rent is money paid for the use of property,
interest is money paid for the use of other money.”). To
agree with Strawn that Farmers owes prejudgment interest
on the appellate court attorney fee awards, we would have
to conclude that Farmers was immediately obligated to
pay Strawn’s attorney fees once the Court of Appeals set
the amount of fees, even though the entire review process
remained outstanding. Farmers did not, however, default
on any legal obligation to pay Strawn’s attorney fees when
it failed to do so on January 27, 2010. As to the fee-shifting
award, then, we deny Strawn’s request to award post-
decision, prejudgment interest on the attorney fee awards.
As to the common fund recovery, we need not decide
whether an award of prejudgment interest is authorized
and appropriate for an attorney fee to be paid from such
a fund.27 We have already compared the amount of court-
ordered fees Strawn’s attorneys have been awarded to date
and compared that amount to what they would recover
pursuant to a reasonable percent-of-fund approach. Based
on that comparison, we declined to enhance the lodestar
fee that we determined to be reasonable to compensate for
the risk of nonpayment and delayed payment of the fees.
For those same reasons, even assuming (without deciding)
27
Our authority to make that award would arise, not by statute, but under the
common-fund doctrine. Again, the common-fund doctrine is an equitable doctrine
that is intended to prevent unjust enrichment. See Strunk, 341 Or at 181 (the
equitable common-fund doctrine “is primarily ‘employed to realize the broadly
defined purpose of recapturing unjust enrichment.’ ” (citation omitted)). We have
held that, in equity, courts have discretion to award interest on an amount due
and owing when, “under all the circumstances of the case, [it] seems equitable
and just.” Emrich v. Emery et al, 216 Or 88, 99, 335 P2d 604, on reh’g, 337 P2d
972 (1959) (alteration in original; citations and internal quotation marks omitted).
When the issue is attorney fees for work undertaken on a contingency basis, and
prejudgment interest is sought as a way to compensate for delay in the payment
of attorney fees, it is difficult to see why that concern is not subsumed within the
analysis of whether to apply a multiplier or other enhancement for the contingency
nature of the fee.
242 Strawn v. Farmers Ins. Co.
that we may, pursuant to our equitable authority, assess
prejudgment interest against the common fund class
recovery, we decline to do so in this case.
IV.  MOTION FOR CLASS INCENTIVE AWARD
Strawn asks this court to award him $5,000 as an
incentive fee for serving as the class representative in this
case, such award to be paid from the punitive damages
award. Farmers opposes the request.
Strawn’s motion to award a class incentive fee
duplicates similar motions that Strawn filed in the trial court
and the Court of Appeals. The trial court awarded Strawn
$20,000 as an incentive fee; Farmers did not challenge
that award on appeal, so the validity of that award was
not presented to either the Court of Appeals or this court.
The Court of Appeals, however, denied Strawn’s motion
requesting a $5,000 incentive award on appeal. Strawn, 233
Or App at 423-24 (so explaining). Strawn has petitioned
this court for review of that ruling, and that petition has
been held for this case.
Incentive fees are intended to address a cost burden
that class actions disproportionately impose on the class
representative. Every class action must have one or more
named representatives (see, e.g., FRCP 23(a); ORCP 32
A), and those representatives incur costs—monetary and
otherwise—that the other members of the class do not.
Those costs may include spending time learning about the
case; being subject to the time, expense, and intrusiveness
of discovery; and in some types of cases, such as employment
discrimination actions, facing potential retaliation or loss
of reputation. Theodore Eisenberg & Geoffrey P. Miller,
Incentive Awards to Class Action Plaintiffs: An Empirical
Study, 53 UCLA L Rev 1303, 1305 (2006).
“In some cases—consumer class actions, where the typical
class-member recovery is low, being an example—a class
member may even experience a net loss from acting as class
champion because the small recoveries normally gained
from the case are not enough to cover the increased costs of
serving as the named plaintiff.”
Id. at 1305-06.
Cite as 353 Or 210 (2013) 243
Those costs may lead to what is sometimes termed
a “free rider” problem, in which all the class members hope
that someone else will assume the burden of serving as
class representative. Id. at 1306. The costs also give the
class representative an incentive to minimize his or her
participation “because the named plaintiff gains only a
fraction of the value added by his or her efforts on behalf of
the class.” Id.
To address those problems, courts across the nation
have awarded incentive fees to class representatives in
roughly 28 percent of all successful class actions. Id. at
1307. Generally, the awarded incentive fees represent
only a small fraction of the sum recovered by the class—on
average, 0.16 percent of the class recovery, with a median
incentive fee of only 0.02 percent of the class recovery. Id.
at 1308. “The average award per class representative was
$15,992 and the median award per class representative was
$4,357.” Id.
Yet the award of incentive fees to the class
representative is not without controversy. There are even
problems justifying the award conceptually. Writing for the
Seventh Circuit Court of Appeals, Judge Richard A. Posner
has noted:
“The basis for an award of fees in a common-fund case
is, as we said, restitutionary, and the law of restitution
(excepting salvage in admiralty) generally confines the right
to restitution to professionals, such as doctors and lawyers.
2 George E. Palmer, The Law of Restitution, ch. 10 (1978).
If you dive into a lake and save a drowning person, you are
entitled to no fee. The named plaintiff is not a professional;
he is, at most, a public-spirited member of the class.”
Matter of Continental Illinois Securities Litigation, 962 F2d
566, 571 (7th Cir 1992). Judge Posner went on to explain,
however, that courts generally had not followed that
reasoning:
“Yet the usual formulations of the common-fund doctrine
describe the plaintiff rather than his lawyer as the person
entitled to be compensated for the expenses he has incurred
in conferring a benefit on the (other) beneficiaries of the
common fund. The principal expense is the attorney’s fee,
244 Strawn v. Farmers Ins. Co.
but there can be others, provided they are not personal.
Since without a named plaintiff there can be no class action,
such compensation as may be necessary to induce him to
participate in the suit could be thought the equivalent of
the lawyers’ nonlegal but essential case-specific expenses,
such as long-distance phone calls, which are reimbursable.”
Id. (citations omitted).
In the context of approving settlement agreements,
courts have often expressed concern that granting extra
benefits to the class representatives may encourage
improper behavior. As one court explained:
“Although it is laudable that plaintiff undertook to
prosecute this litigation, the court perceives no circumstances
warranting a special award. A class representative is
a fiduciary to the class. If class representatives expect
routinely to receive special awards in addition to their share
of the recovery, they may be tempted to accept suboptimal
settlements at the expense of the class members whose
interests they are appointed to guard.”
Weseley v. Spear, Leeds & Kellogg, 711 F Supp 713, 720
(EDNY 1989).28 Those concerns, however, are limited to
the settlement context; they do not come into play when (as
here) the parties litigated the case to a final decision.
In this case, we are persuaded that Strawn should
be awarded an incentive fee from the punitive damages
award. The incentive fee that Strawn received from the trial
court does not account for the risk he undertook on appeal.
By serving as class representative through the appeal and
review process, Strawn incurred a substantial risk of being
required to pay Farmers’s costs, even if large portions of the
28
See also Holmes v. Continental Can Co., 706 F2d 1144, 1148 (11th Cir 1983)
(“Settlements entailing disproportionately greater benefits to named parties are
proper only when the totality of circumstances combine to dispel the cloud of
collusion which such a settlement suggests.” (Internal quotation marks and citation
omitted).); Shelton v. Pargo, Inc., 582 F2d 1298, 1315 (4th Cir 1978) (trial court
evaluating pre-certification settlement of class action must focus on possibility
of collusion between class representative and defendant; in doing so, trial court
should “conduct a careful inquiry into the terms of the settlement, particularly the
amount paid the plaintiff in purported compromise of his individual claim and the
compensation to be received by plaintiff’s counsel, in order to insure that, under
the guise of compromising the plaintiff’s individual claim, the parties have not
compromised the class claim to the pecuniary advantage of the plaintiff and/or his
attorney”).
Cite as 353 Or 210 (2013) 245
award were upheld on appeal. See ORAP 13.05(3) (costs may
be awarded to party who obtains substantial modification
of judgment on appeal). Strawn has estimated—and our
own review suggests—that those costs could have exceeded
$20,000. That risk was not shared with the rest of the class;
because Strawn is the only named plaintiff, he was the
principal person who could be required to pay those costs.
See ORCP 32 M(1)(b) (“If under an applicable provision of
law a defendant  * * * is entitled to attorney fees, costs, or
disbursements from a plaintiff class, only representative
parties and those members of the class who have appeared
individually are liable for those amounts.”). At the same
time, Strawn’s personal share of the judgment against
Farmers was only $1,450.64, plus the $20,000 incentive fee
approved by the trial court.29 In other words, Strawn put
himself at distinct risk among the class of being subject to
a cost award that could easily have eliminated his entire
recovery in the action, and that could have been more than
30 times greater than his actual damages, even if he was
largely successful in defending the verdict and the other
class members mostly retained the benefit of the judgment.30
Under those circumstances, we conclude that it
would be unjust for the class members to retain the benefit
of Strawn’s defense of the judgment on appeal and review
without compensating him for the personal risk that he
undertook on their behalf. Accordingly, we award Strawn
a $5,000 incentive fee, payable from the punitive damages
award.
V.  CLASS ADMINISTRATION FEES;
MOTION TO STAY APPELLATE JUDGMENT
In both the original fee petition and the second
supplemental fee petition, Strawn requests an award of fees
29
The general judgment awarded Strawn $412.50 in compensatory damages
plus $197.22 in interest, for a total compensatory damages award of $609.72. Each
class member was also awarded $840.92 as their share of the punitive damages
award; Strawn received $20,840.92, which included the incentive fee.
30
That is, in fact, essentially what had happened in the Court of Appeals
before this court heard the matter on review. Because the Court of Appeals had
reduced the punitive damages award substantially, Farmers likely would have
been designated the prevailing party and been awarded costs that would have
wiped out Strawn’s recovery. The other class members, however, still would have
recovered all actual damages, albeit with a lesser award of punitive damages.
246 Strawn v. Farmers Ins. Co.
incurred in administering the class post-trial, together with
expected class administration fees in the future. As Strawn
admits, the Court of Appeals denied those fees, directing that
they should be sought from the trial court. See Strawn, 233
Or App at 410 (so noting). No party challenged the propriety
of that ruling on review, and we decline to consider the merits
of that conclusion. See ORAP 9.20(2) (generally, court will
consider on review only those questions “that the petition or
response claims were erroneously decided by” the Court of
Appeals). Strawn “simply request[s] that this Court identify
clearly whether or not the class administration fees and
costs * * * are included in its award, * * * so that there will
be no dispute over whether [Strawn has] the right to include
those fees and costs in a supplemental submission to the
trial court.” We deny the request for class administration
fees here, without prejudice to Strawn seeking an award of
those fees by appropriate application to the trial court.
One final motion requires disposition. Farmers
filed a motion to stay issuance of the appellate judgment
while it sought a petition for certiorari from the United
States Supreme Court. While this matter was pending, the
Supreme Court denied the petition. Accordingly, we dismiss
the motion for stay as moot.
VI. CONCLUSION
The petitions for attorney fees for proceedings
following the decision of the Court of Appeals are allowed
in part and denied in part as follows. Strawn is awarded
$72,724.75 in attorney fees and expenses not part of attorney
fees ($70,299.90 and $2,424.85 respectively), that amount to
be paid by Farmers under ORS 742.061(1). Strawn also is
awarded another $297,850.74 in attorney fees and expenses
not part of attorney fees ($291,012.10 and $6,838.64
respectively on all three fee petitions), that amount to be
paid from the punitive damages award in this case. Strawn
is awarded a $5,000 class incentive fee to be paid from the
punitive damages award in this case. The request for class
administration fees is denied without prejudice to Strawn
seeking an award of those fees by appropriate application
to the trial court. Farmers’s motion to stay issuance of the
appellate judgment is dismissed as moot.