Samuel v. Frohnmayer , 95 Or. App. 561 ( 1989 )

GRABER, J.

Plaintiff brought this declaratory judgment action to obtain indemnification for the expenses of defending a civil action. We previously held that plaintiff here had been sued in his capacity as a state agent and that the state was, therefore, required to indemnify him. Samuel v. Frohnmayer, 82 Or App 375, 84 Or App 80, 728 P2d 97 (1986), rev den 303 Or 261 (1987). On remand, plaintiff petitioned for further relief under ORS 28.080 to recover the expenses incurred in bringing the action for indemnification. He describes those expenses as additional damages. They are, in essence, his attorney fees. The trial court denied his petition, and he appeals.

ORS 28.080 provides:

“Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application thereof shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.”

Plaintiff asserts that the supplemental relief that the court may grant includes the damages that he suffered because he had to bring the action to secure indemnification of the expenses of defending the civil action. He points out that he has spent over $10,000 to recover indemnity for approximately $1,870 that he spent in defending the civil action. The supplemental relief that he requests is necessary, he argues, “in order to vindicate the rights and duties of the parties as determined and declared in the judgment itself.” Those damages are, he emphasizes in his reply brief, “the direct and forseeable consequence of Defendant’s breach of his statutory duty to defend and indemnify Plaintiff.” (Emphasis in original.)

What plaintiff seeks is an award of attorney fees under another name: “damages.” The state quotes Shakespeare: “What’s in a name? That which we call a rose by any other name would smell as sweet * * *.’¹ It could also have quoted Gertrude Stein: “[A] rose is a rose is a rose.” “Damages” that are determined by the charges that an attorney makes for services in the action in which those damages are sought are attorney fees, although fees incurred in maintaining a lawsuit may at times be damages in some other action. See, e.g., Sizemore v. Swift, 79 Or App 352, 358, 719 P2d 500 (1986).

The characterization of plaintiffs request for relief as fees instead of damages does not end the inquiry, however, because ORS 28.080 permits further “relief,” without regard to its label, “whenever necessary or proper.” The dispositive issue is whether an award of fees is “necessary or proper.”

Relief is “necessary” when it is required in order to enforce the judgment because of the failure of one party to comply. See Lowe v. Harmon, 167 Or 128, 115 P2d 297 (1941); Borchard, Declaratory Judgments 439 (2d ed 1941). Fees are not “necessary” relief in this case, because plaintiff is not seeking an order to compel the state to comply with the original declaration. It has complied.

Fees may, however, be “proper” relief. ORS 28.080 is based on the Uniform Declaratory Judgment Act, which, in turn, is based on the Federal Declaratory Judgment Act, 28 USC §§ 2201, 2202. Federal cases interpreting 28 USC § 2202, which is identical for present purposes to ORS 28.080, thus are helpful in deciding what ORS 28.080 means. See ORS 28.150.²

Several federal courts have construed 28 USC § 2202 (albeit without much analysis) to allow an award of attorney fees in a declaratory judgment action in the absence of contractual or other statutory authority for doing so. See, e.g., Freed v. Travelers, 300 F2d 395, 399 (7th Cir 1962); Security Insurance Company of New Haven v. White, 236 F2d 215 (10th Cir 1956); Automobile Club Ins. Co. Inc. v. Tyrer, 560 F Supp 755, 760 (D Idaho 1983), aff’d 734 F2d 20 (9th Cir 1984); Preferred Risk Mutual Insurance Co. v. Main, 295 F Supp 207, 218 (WD Mo 1968).³ None of those cases involved a public official; each concerned a dispute between an insured and its private insurer about the existence or extent of coverage. However, in tort claims against the state and its agents, the Attorney General takes the role of an insurer and assumes an insurer’s duty to defend. ORS 30.285(3). For that reason, the cited cases are persuasive by analogy.

When, as here, the Attorney General fails to discharge his statutory duty and an agent of the state must resort to litigation to force him to perform it, awarding that agent the expense of litigation will often be both “proper” and fair. In Van Gordon v. Ore. State Bd. of Dental Examiners, 63 Or App 561, 568, 666 P2d 276 (1983), we noted that “fairness” is a factor that we consider in deciding whether to assess attorney fees against a state agency pursuant to ORS 183.495, when that agency misconstrues a statute. Whether an award is proper requires a case-by-case consideration and depends on many factors, including benefit to the public at large, see Deras v. Myers, 272 Or 47, 535 P2d 541 (1975),⁴ and the reasonableness of the Attorney General’s refusal to defend. See ORS 28.120 and ORS 182.090.⁵

In summary, we hold that an award of attorney fees may be “proper” when a declaratory judgment action seeks to compel a public official to do his or her duty. We remand for the trial court to determine whether to award fees and, if so, in what amount.

Reversed and remanded.⁶

1 Defendant points out that William Shakespeare was not an Oregon lawyer. Nevertheless, Juliet correctly stated a principle of Oregon law.

2 ORS 28.150 provides:

“This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.”

3 Each of the cited cases involved a dispute between an insurer and its insured. In all of them except Freed, the insurer brought the declaratory judgment action against the insured and the insured, as defendant, was awarded attorney fees. In this case plaintiff, as the “insured,” brought the declaratory judgment action and seeks his attorney fees.

The dissent argues incorrectly that, in Security Insurance Company of New Haven v. White, supra, the entire award might have been for fees incurred in defending the earlier, underlying case. However, the prevailing party sought fees for both the underlying case and the indemnity action, and the court awarded the entire amount.

The dissent also relies on McGraw v. Gwinner, 282 Or 393, 578 P2d 1250 (1978). That case is inapposite, because it analyzed the requirements for attorney fees under ORS 743.114, not under ORS 28.080, and because the underlying recovery in the present case is actual, not merely potential.

4 Deras v. Myers, supra, applies directly only in equity cases and does not extend to actions at law. Cook v. Employment Division, 293 Or 398, 401, 649 P2d 594 (1982). In determining whether a declaratory judgment action is legal or equitable, we look to the underlying nature of the claim and the relief sought. Salem Resources v. U.S. Consultants, 75 Or App 249, 251, 706 P2d 970 (1985). This is an action at law, because plaintiff sought legal relief: an order to compel the Attorney General to act, which is akin to mandamus, and indemnification based on a statute.

5 ORS 28.120 provides:

“This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered.” (Emphasis supplied).

ORS 182.090 provides:

“(1) In any civil judicial proceeding involving as adverse parties a state agency, as defined in ORS 291.002, and a petitioner, the court shall award the petitioner reasonable attorney fees and reasonable expenses if the court finds in favor of the petitioner and also finds that the state agency acted without a reasonable basis in fact or in law.

“(2) Amounts allowed under this section for reasonable attorney fees and expenses shall be paid from funds available to the state agency. The court may withhold all or part of the attorney fees from any award to a petitioner if the court finds that the state agency has proved that its action was substantially justified or that special circumstances exist which make the award of all or a portion of the attorney fees unjust.

“(3) As used in this section, ‘civil judicial proceeding’ means any proceeding, other than a criminal proceeding as defined in ORS 131.005(7), conducted before a court of this state.”

Even if ORS 28.080 were not itself a grant of authority to award fees as “further relief whenever necessary or proper,” ORS 182.090 might provide an independent basis for an award of fees.

6 Plaintiffs procedural arguments require no discussion.