dissenting.
The majority reaches a result that appears to be just; unfortunately, its opinion has no legal basis and, if accepted, would destroy long established law about when a prevailing party may receive an award of attorney fees. Because I cannot join the majority in ignoring the law, even in order to do justice, I dissent.
Plaintiff apparently concedes that there is no statute other than the Declaratory Judgment Act that might authorize an award of attorney fees in this case.1 The only authority that he suggests for an award is ORS 28.080, which 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.”
As the majority notes, plaintiff must show that attorney fees would *566either be “necessary” or “proper” in this case. They would not be “necessary,” because they are not required to enforce the declaratory judgment. Despite the majority’s efforts to show otherwise, they are also not “proper.”
A declaratory judgment may establish a party’s right to some particular relief. It would then be “proper” under ORS 28.080 for the court to award that relief, thereby avoiding the need for a second action. See, e.g., Aspgren v. City of Columbia City, 34 Or App 991, 1002 n 3, 581 P2d 536 (1978); Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb 279, 283-284, 369 NW2d 620 (1985); Utah Rest. Ass’n v. Davis Cty. Bd. of Health, 709 P2d 1159, 1162 (Utah 1985). In this case, it was “proper” under indemnity law for the court to award plaintiff the attorney fees that he incurred in defending the original action, because defendant failed to perform a duty to defend him. What relief is “proper,” however, depends on whether plaintiff would have a right to it under other law; ORS 28.080 does not in itself create rights.
Plaintiff argues that attorney fees are “proper” relief, because he had to incur them “in order to vindicate the rights and duties of the parties,” and that they were the “direct and foreseeable consequences” (emphasis in appellant’s brief) of defendant’s failure to comply with his statutory duty. 95 Or App at 562. Every successful plaintiff could make the same argument. If we were to accept it, we would destroy the rule that a court may award attorney fees only when a statute or contract provides specific authority for the award. See, e.g., Beaver v. Davis, 275 Or 209, 217-218, 550 P2d 428 (1976).2
The majority relies on several cases under 28 USC § 2202 to support its position. Unfortunately, they do not. In both Freed v. Travelers, 300 F2d 395, 399 (7th Cir 1962), and Security Insurance Company of New Haven v. White, 236 F2d 215, 220 (10th Cir 1956), the court made a lump sum award of attorney fees for a previous personal injury case. Neither court said whether any part of the fees was for services in the declaratory judgment action. It is possible that all of each award was for the fees incurred in defending the earlier case. See Travelers Indemnity Company v. Holman, 330 F2d 142, 152 (5th Cir 1964). Those cases, therefore, are not authority for awarding fees in this one.
Somewhat stronger for the majority is Preferred Risk Mutual Insurance Co. v. Main, 295 F Supp 207, 218 (WD Mo 1968), *567in which the court looked both to state law and to what it described as the court’s inherent equitable authority under 28 USC § 2002 as sources for an award of attorney fees. See also National Indemnity Company v. Harper, 295 F Supp 749, 757 (WD Mo 1969). A different district court took a similar position in Automobile Club Ins. Co., Inc. v. Tyrer, 560 F Supp 755, 760 (D Idaho 1983), aff’d 734 P2d 20 (9th Cir 1984). However, the Fifth Circuit has recently suggested that, even if those courts were correct in stating that they have inherent power, that power is limited. In Mercantile Nat. Bank at Dallas v. Bradford Tr. Co., 850 F2d 215 (5th Cir 1988), the court held that 28 USC § 2202 does not provide statutory authority for an attorney fees award. It then held that a court has equitable power to award attorney fees in addition to statutory costs in cases that involve the creation, protection or distribution of a fund within the court’s jurisdiction or bad faith, vexation, wantonness or oppression. 850 F2d at 218. This case is not in equity and does not involve a fund within the court’s jurisdiction. See n 2, supra. Any award based on defendant’s alleged bad faith would need to meet the requirements of ORS 182.090. See n 1, supra. Neither of the grounds for an award that these federal courts recognize applies here.3
The majority analogizes plaintiffs situation to that of an insured who seeks a declaratory judgment to resolve a coverage dispute with an insurer. Some states do permit an award of attorney fees in those cases without requiring specific statutory authority; most states, however, do not. See Annot., 87 ALR3d 429, 437-441 (1978). Oregon is one of the states that do not. Oregon cases all turn on whether an award is justified under ORS 743.114. See, e.g., McGraw v. Gwinner, 282 Or 393, 578 P2d 1250 (1978); Annot., supra, 87 ALR3d at 483-486, 491-493. That statute is clearly inapplicable to this case, and plaintiff suggests no other that might apply.
The majority, in short, has strained mightily to find some justification for reaching what must appear to all of us as the just result, but it has failed in its quest. The reasoning that it has adopted, if accepted, would permit an award of attorney fees in almost every declaratory judgment action in which a public body or official is the losing defendant. It is for the legislature, not this court, to decide whether such a change in the law is desirable. I therefore dissent.
For this reason, it is unclear why the majority discusses ORS 182.090. Plaintiff does not even cite that statute, let alone rely on it, and it, therefore, cannot support his claim. Indeed, it provides a further reason to deny plaintiffs claim. The statute represents the legislature’s policy of when and how to provide attorney fees to litigants who must sue to force the state to perform its obligations. The legislature has decided that a plaintiff who does not meet the statutory criteria should not receive an award of attorney fees. This plaintiff does not attempt to show that he does. We should not override the legislature’s decision.
As the majority notes, Deras v. Myers, 272 Or 47, 535 P2d 541 (1975), provides an exception for some equity cases that provide a benefit to the public at large. Because this is an action at law, Deras has nothing to do with it, and judicial views of fairness or public benefit are irrelevant.
Other federal cases deny that there is any authority to award attorney fees in a declaratory judgment in which the rights involved arise under state law, unless the applicable state law explicity authorizes the award. American Family Ins. Co. v. Dewald, 597 F2d 1148, 1151 (8th Cir 1979); Travelers Indemnity Company v. Holman, supra, 330 F2d at 152; Western World Ins. Co. v. Hartford Mut. Ins. Co., 602 F Supp 36, 37 (D Md 1985).