Woods v. Carl Karcher Enterprises Inc.

122 P.3d 121, 202 Or. App. 372, 2005 Ore. App. LEXIS 1375

• Court: Court of Appeals of Oregon
• Decided: October 26, 2005
• Docket: 0209-09609; A123470
• Status: Published

Opinions

ORTEGA, J.

Plaintiff appeals a judgment in which the trial court denied her request for attorney fees incurred in obtaining an arbitration award for injuries sustained in a slip-and-fall accident. We review that ruling, which was based on the legal conclusion that plaintiff failed to satisfy the notice requirements of ORS 20.080, for errors of law,¹ and affirm.

In late September 2000, plaintiff sustained injuries when she slipped and fell at defendant’s Carl’s Jr. restaurant. After the incident, plaintiff took steps to file a claim and was contacted by a representative of defendant’s insurer, Constitution State Service Company (CSSC). The representative informed plaintiff in writing that she would be the contact for investigating plaintiffs claim and determining liability; she also notified plaintiff of the two-year statute of limitations for filing a lawsuit. Shortly thereafter, in February 2001, the representative notified plaintiff in writing that, based on her investigation of the incident, CSSC had concluded that defendant was not responsible and denied plaintiffs claim.

The record contains no evidence of further communication between the parties until August 2002, nearly two years after the incident at issue, when an attorney wrote to CSSC on plaintiffs behalf and requested records of the investigation. The letter noted that “time [was] of the essence” and threatened a lawsuit if the matter was not resolved quickly. In early September, another CSSC representative wrote to plaintiffs attorney and reiterated CSSC’s denial of liability, inviting counsel to contact her with any questions.

Neither plaintiff nor her counsel contacted CSSC again. Instead, later in September, plaintiffs counsel mailed a demand letter, addressed “To Whom It May Concern,” to the Carl’s Jr. restaurant where plaintiff had slipped and fallen nearly two years before. The letter, captioned “Carol Lee Woods v. Carl’s Jr. Restaurant,” provided as follows:

“Please be advised that our office represents the legal interests of Carol Lee Woods relative to her slip and fall at your restaurant on or about September 26, 2000.

“Based on the information presented, her economic and non-economic losses are estimated to total approximately $5,000, which sum is hereby demanded.

“Be advised that pursuant to ORS 20.080, if a suit is filed after a period of ten days following this notice, the court may tax you a reasonable amount for attorney fees as well as costs.”

The letter was sent by first class mail, with no return receipt requested, and the record does not establish whether the restaurant actually received it. Plaintiff filed her complaint two weeks later, seeking damages and attorney fees. The case proceeded to arbitration, and plaintiff received a damage award but no costs or attorney fees. On appeal of the arbitrator’s decision, the trial court awarded costs, but denied attorney fees based on a finding that plaintiff had not satisfied the notice requirements of ORS 20.080.

Plaintiff assigns error to the denial of her attorney fees. ORS 20.080(1) provides, in part:

“In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $5,500 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less than 10 days before the commencement of the action * *

(Emphasis added.) Plaintiff contends that sending her demand letter directly to the restaurant satisfied the statute, complaining that she had “no [other] choice” because defendant’s failure to register an assumed business name with the Oregon Secretary of State made it difficult to locate a registered agent and that serving the demand on CSSC would have been “useless.” Defendant counters that plaintiffs demand was legally insufficient to constitute a “written demand * * * made on the defendant” within the meaning of the statute, contending that demand instead should have been made on CSSC. We agree that plaintiffs demand was legally insufficient and affirm the denial of fees.

The sufficiency of the demand in this case turns on the meaning of the statutory requirement that the demand be “made on the defendant.” Our task is to discern the intent of the legislature, beginning with an examination of the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). The statutory context includes other provisions of the same statute and other related statutes, as well as prior judicial interpretations of the statute at issue. State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998).

ORS 20.080 does not define the phrase “made on the defendant,” and the plain words of the statute do not indicate whether the phrase requires something more than what plaintiff did here. However, as the Supreme Court recognized in Rodriguez v. The Holland, Inc., 328 Or 440, 445, 980 P2d 672 (1999), “the Oregon Rules of Civil Procedure provide statutory context for construing ORS 20.080, because they ‘govern procedure and practice in all circuit courts * * * for all civil actions * * * except where a different procedure is specified by statute or rule.’ ” (Quoting ORCP 1 A and adding emphasis.) Here, as in Rodriguez, ORS 20.080 does not specify a procedure for serving the demand different from the Oregon Rules of Civil Procedure.

The rules do not specifically address the manner in which prelitigation demands must be “made on the defendant,” but ORCP 7 and ORCP 9 do address service in general. ORCP 9 addresses the requirements for service on the parties to litigation once litigation has been commenced. ORCP 7, on the other hand, addresses the requirements for proper service of summons, by which “the court having jurisdiction over the subject matter of the action also attains personal jurisdiction over the party served.” McCall v. Kulongoski, 339 Or 186, 192, 118 P3d 256 (2005) (citation omitted). Although the rule specifies various methods of service, its overall requirement is that a summons be served in a manner “reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.” ORCP 7 D(l). A defendant who fails to appear and defend after proper service of the summons pursuant to ORCP 7 is subject to an order of default and, ultimately, a default judgment. ORCP 69.

The requirement that demand be “made on the defendant” under ORS 20.080 arises in an analogous context, in which a person or entity over whom the court has not yet attained personal jurisdiction will be required to timely respond to the content of the demand or suffer adverse consequences, in this case potential attorney fee liability. Accordingly, the Supreme Court has recognized that the evident purpose of the ORS 20.080 demand requirement is “to give the defendant an opportunity to settle the case.” Landers v. E. Texas Motor Frt. Lines, 266 Or 473, 475, 513 P2d 1151 (1973). As the court explained, “We believe it was the legislature’s intention, whenever a defendant has notice that a claim will be [within the monetary limits of the statute²], to require him to evaluate the case and to make an offer at the risk of having to pay attorney fees if the offer is inadequate.”³ Id. at 477.

Because ORS 20.080 does not specify a method for ensuring that the prelitigation demand is “made on the defendant,” the Oregon Rules of Civil Procedure — and specifically ORCP 7 D(1), which deals with the analogous problem of service of a summons on the defendant — are context for construing ORS 20.080.⁴ See Rodriguez, 328 Or at 445-46 (using the rules as context for interpreting the phrase “amount pleaded” in ORS 20.080). We conclude that a demand is “made on the defendant” only if it is served in a manner reasonably calculated, under all the circumstances, to apprise the defendant of the demand and to afford a reasonable opportunity to respond as required. Cf. Castro v. Earl Scheib of Oregon, 65 Or App 179, 182, 670 P2d 226 (1983) (holding that an ORS 20.080 demand was adequate on the grounds that it was “reasonably calculated to apprise [the] defendant of the demand”).

Here, the demand letter that plaintiff apparently sent by first class mail was not transmitted by the method of mail service that is presumptively reasonable under ORCP 7, because it was not coupled with service by certified or registered mail, return receipt requested, or express mail.⁵ Although it is possible that sending a notice by first class mail alone might be reasonable under some circumstances, here the letter was not directed to anyone at the Carl’s Jr. restaurant, but rather was addressed “To Whom It May Concern.” Plaintiff did nothing to ensure that the letter went to anyone in charge who would be able to respond timely. Moreover, in contrast to Castro, the record here does not establish or even suggest that sending the written demand to the restaurant would ensure that it would find its way to those “most familiar with plaintiffs claim.” 65 Or App at 182 (finding that notice to the particular place of business where the injury occurred was reasonably calculated to apprise the defendant of the demand where the record indicated that the notice went to “the people responsible for [the] injury” and “most familiar with [the] plaintiffs claim”). Because of plaintiffs failure to use a presumptively reasonable method of mail service or to otherwise ensure that the letter would reach someone with the authority and knowledge necessary to act on it, her demand was not reasonably calculated to apprise defendant of the need to act.⁶

The fact that plaintiff chose not to serve the demand on CSSC, though not dispositive, nevertheless suggests the unreasonableness of the method she chose for making her demand.⁷ There is no question that sending the demand to CSSC, which had clearly communicated that it was authorized as defendant’s agent in addressing plaintiffs claim and with whom plaintiff and her attorney had already been dealing, would have been reasonable. See Schwartzkopf v. Shannon the Cannon’s Window, 166 Or App 466, 470-71, 998 P2d 244 (2000) (holding that an ORS 20.080 demand may be made on an insurer who is acting as an agent for an insured defendant for purposes of defending or settling a claim). Plaintiff was not required to serve her demand on CSSC; other adequate modes of serving the demand presumably existed.⁸ However, she was required to choose a method that would reasonably apprise defendant of her demand — and, whether or not she viewed communication with CSSC as “useless,” plaintiff cannot reasonably contend that communication with CSSC would not have provided defendant with the requisite notice of her demand.⁹ The adequacy of the demand must be measured against the totality of the circumstances, and, here, plaintiff rejected one obviously reasonable method of apprising defendant of her demand in favor of a method that was not reasonably calculated to apprise anyone with the authority to act on it.

Affirmed.

1 See Selective Services, Inc. v. AAA Liquidating, 126 Or App 74, 77, 867 P2d 545 (1994); ORS 20.220.

2 The version of ORS 20.080 at issue in Landers applied to claims where the amount pleaded was $1,000 or less. 266 Or at 475. The version applicable to this matter applies to claims where the amount pleaded is $5,500 or less.

3 The dissent’s contention that “ORCP 7 D is based on due process concerns that are not present here,” 202 Or App at 385 (Wollheim, J., dissenting), misses this analogous concern informing the ORS 20.080 notice requirements. Indeed, the dissent appears to believe that, because the statute does not define the phrase “made on the defendant” to address this concern explicitly, a plaintiffs method of serving the demand is not subject to any evaluation for reasonableness. By that logic, plaintiff simply could have left the demand under the door of the restaurant or on the table next to her discarded french fries. Such a reading ignores the legislative intent as recognized in Landers.

4 Contrary to the dissent’s view, 202 Or App at 385 (Wollheim, J., dissenting), this matter is different from McCall, in which the Supreme Court rejected importation of the “reasonably calculated” requirement of ORCP 7 D(1) in evaluatingthe method of serving a notice of appeal. The court explained that the statutes controlling service of appeal notices are “separate and distinct” from the statutes controlling the service of summonses “because the act of filing and serving a notice of appeal fulfills a different purpose” (i.e., giving the appellate court jurisdiction over the issue on appeal to the exclusion of the lower court). McCall, 339 Or at 192. The court noted as well that the statutes devoted to appeals, particularly ORS 19.500, specifically provide that appellate service is to be carried out according to ORCP 9 B. Id. Here, by contrast, the demand requirement of ORS 20.080 serves a purpose similar to that of a summons (notifying persons or entities over whom the court has not yet acquired personal jurisdiction that they must timely respond or incur potential liability), and the statute does not point to any alternative rule or method of service.

5 Service by mail under ORCP 7 D(2)(d), which presumptively meets the service rule’s reasonableness requirement, ORCP 7 D(1), requires that service by first class mail be coupled with service by certified or registered mail, return receipt requested, or express mail.

6 Contrary to the dissent’s contention, 202 Or App at 383 (Wollheim, J., dissenting), the dispute in this case does not center on whether the Carl’s Jr. restaurant is the defendant. Rather, it centers on whether the method that plaintiff used to convey her demand was reasonably calculated to apprise defendant of that demand, so that it can be said that the demand was “made on” defendant. As discussed, we derive the reasonableness requirement from the statutory context.

7 Plaintiff does not contend that her prior communications with CSSC satisfied the requirements of ORS 20.080(1), and we do not address that possibility.

8 Contrary to the dissent’s suggestion, 202 Or App at 388 (Wollheim, J., dissenting), we do not rely on Schwartzkopf in. concluding that plaintiffs demand was insufficient. We address Schwartzkopf only to indicate that at least one alternative method of notifying defendant of her demand was available to plaintiff in this case. We do not hold that plaintiff was obligated to use that method, and, indeed, we assume that other methods likely were available.

9 The dissent implies that plaintiff was somehow required to use the method she did because (1) CSSC had denied the claim; (2) CSSC had not indicated that it would accept service on behalf of defendant or that it was defendant’s registered agent; and (3) defendant had not complied with ORS 648.007 by filing an assumed business name registration with the Oregon Corporation Division. 202 Or App at 384 (Wollheim, J., dissenting). Schwartzkopf establishes that an ORS 20.080 demand may be made on “an insurer who is acting as an agent for an insured defendant for purposes of defending or settling a claim,” 166 Or App at 471; neither Schwartzkopf nor any other authority suggests that the insurer’s apparently authorized denial of the claim makes any difference. Indeed, such a denial supports the view that the insurer is acting for the insured. Likewise, the dissent cites no authority for the suggestion that the insurer may not receive the demand unless it has indicated that it will accept service or that it is defendant’s registered agent. Finally, although a defendant’s failure to file an assumed business name registration may complicate the task of serving an ORS 20.080 demand, the circumstances in this case do not suggest that plaintiff was without other reasonable alternatives for making demand on defendant.