concurring.
This is Primal Scream II, the sequel concurrence. See Grijalva v. Safeco Ins. Co., 153 Or App 144, 157, 956 P2d 995 (1998) (Haselton, J., concurring). I agree with the majority that it correctly interprets the words of ORS 742.061. The purpose of this statute is to discourage expensive and lengthy litigation. Dolan v. Continental Casualty Co., 133 Or 252, 255, 289 P 1057 (1930). In reality, however, the statute allows an insurer to force an insured to engage in lengthy litigation without fear of liability for attorney fees under ORS 742.061 so long as the insurer offers a sufficient tender at any time before a decision by the factfinder. This result encourages litigation and guts the “purpose of the statute.”
The majority, though, correctly parses the words of the statute. Plaintiffs recovery here did not exceed the amount of the final tender made by defendant. Therefore, plaintiff is not entitled to attorney fees under ORS 742.061. If this is not what the legislature intended, then it is for the legislature, and not the courts, to remedy.