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Filed: November 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON ZRZ REALTY COMPANY, an Oregon corporation, for itself and as trustee of the ZIDELL REMEDIATION FUNDING TRUST, an Oregon trust; ZIDELL MARINE CORPORATION, a Washington corporation; TUBE FORGINGS OF AMERICA, INC., an Oregon corporation; and PON EXPLORATION, INC., a Delaware corporation, fka Zidell Explorations, Inc., an Oregon Corporation, Petitioners on Review, v. BENEFICIAL FIRE AND CASUALTY INSURANCE COMPANY, succeeded in interest by J.C. Penney Life Insurance Company, et. al., Defendant, and CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, and CERTAIN LONDON MARKET INSURANCE COMPANIES, aka "Lloyds," including the following defendant companies: ASSICURAZIONI GENERALI S.P.A., INSURANCE COMPANY OF NORTH AMERICA (UK) LTD., COMMERCIAL UNION ASSURANCE COMPANY, PLC, EDINBURGH ASSURANCE COMPANY, LTD., OCEAN MARINE INSURANCE COMPANY, LTD., WORLD AUXILIARY INSURANCE CORPORATION, LTD., CORNHILL INSURANCE COMPANY, LTD., DOMINION INSURANCE COMPANY, LTD., EAGLE STAR INSURANCE COMPANY LTD., THE THREADNEEDLE INSURANCE COMPANY LTD., EXCESS INSURANCE COMPANY LTD., LONDON & EDINBURGH GENERAL INSURANCE COMPANY LTD., NEW ZEALAND INSURANCE COMPANY, LTD.,

ROAD TRANSPORT & GENERAL INSURANCE COMPANY, LTD., SOUTH BRITISH INSURANCE COMPANY, LTD., ULSTER MARINE INSURANCE COMPANY, LTD., THE UNITED SCOTTISH INSURANCE COMPANY, LTD., YORKSHIRE INSURANCE COMPANY, LTD., HANSA RE & MARINE INSURANCE COMPANY (UK) LTD., LA REUNION FRANCAISE (UK) LTD., ECONOMIC INSURANCE COMPANY LTD., NORWICH UNION FIRE INSURANCE SOCIETY, LTD., FIREMEN'S INSURANCE COMPANY OF NEWARK NEW JERSEY, SWISS UNION GENERAL INSURANCE COMPANY, LTD., LEADENHALL INSURANCE COMPANY, LTD., BISHOPGATE INSURANCE COMPANY, LTD., HOME INSURANCE COMPANY, NIPPON FIRE & MARINE INSURANCE COMPANY (UK), LTD., SWITZERLAND GENERAL INSURANCE COMPANY, LTD., RIVER THAMES INSURANCE COMPANY, LTD., ROYAL INSURANCE COMPANY, LTD., BRITISH FIRE INSURANCE COMPANY, LTD., BRITISH & FOREIGN INSURANCE COMPANY, LTD., NATIONAL PROVINCIAL INSURANCE COMPANY, LTD., THE SCOTTISH LION INSURANCE COMPANY, LTD., SKANDIA MARINE INSURANCE COMPANY (UK), LTD., DRAKE INSURANCE COMPANY, LTD., SPHERE INSURANCE COMPANY, LTD., SPHERE DRAKE INSURANCE COMPANY PLC, ALLIANCE ASSURANCE COMPANY, LTD., BRITISH LAW INSURANCE COMPANY, LTD., and CONTINENTAL ASSURANCE COMPANY OF LONDON, LTD., LIVERPOOL MARINE & GENERAL INSURANCE COMPANY, LTD., PHOENIX ASSURANCE COMPANY, LTD., FINE ART & GENERAL INSURANCE COMPANY, LTD., ANGLO-FRENCH INSURANCE COMPANY, LTD., BALOISE MARINE INSURANCE COMPANY, LTD., BALTICA INSURANCE COMPANY (UK), LTD., FUJI FIRE & MARINE INSURANCE COMPANY, (UK), LTD., R.W. GIBBON GROUP, LA PRESERVATRICE GROUP, SWITZERLAND GENERAL INSURANCE COMPANY (LONDON), LTD., YASUDA FIRE & MARINE INSURANCE COMPANY, LTD., IRON TRADES MUTUAL INSURANCE COMPANY, LTD., MINSTER INSURANCE COMPANY, LTD., RELIANCE INSURANCE COMPANY,

SIRIUS (UK) INSURANCE PLC, INDEMNITY MARINE ASSURANCE COMPANY, LTD., LONDON & HULL MARITIME INSURANCE COMPANY, LTD., AND ASSOCIATED COMPANIES, C.A. PARR AGENCIES, LTD., SUN INSURANCE OFFICE, MARINE INSURANCE COMPANY, LIMITED, and SUMITOMO MARINE & FIRE INSURANCE COMPANY, LIMITED, Respondents on Review. (CC 9708-06226; CA A121145; SC S057155) En Banc On petitioners on review's petition for attorney fees, filed January 5, 2011; considered and under advisement September 8, 2011. Bruce L. Campbell, Miller Nash LLP, Portland, filed the petition for attorney fees and the reply for petitioners on review. With him on the petition and reply was Heather K. Cavanaugh. Thomas W. Sondag, Lane Powell PC, Portland, filed the objection to petitioners' fee petition for respondents on review. With him on the objection was John Folawn, Folawn Alterman & Richardson LLP, Portland. KISTLER, J. The petition for attorney fees is allowed. Petitioners on review are awarded $40,858.50 for their attorney fees before the Court of Appeals and the Supreme Court.

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KISTLER, J. Pursuant to ORS 742.061, plaintiffs (Zidell) have petitioned to recover attorney fees that they incurred before this court and the Court of Appeals. Defendants (London) have objected to Zidell's fee request on three grounds. London contends that, as a result of a 2005 amendment to ORS 742.001, Zidell may not recover any fees that it incurred after the effective date of that amendment. Alternatively, London argues that Zidell is entitled to fees only for work that it did to establish London's duty to defend. Finally, London argues that the billing records that Zidell submitted do not support its fee request. We hold that, to the extent the 2005 amendment applies to ORS 742.061, that amendment does not apply to actions filed before its effective date. We also hold that, at this stage of the litigation, Zidell may recover the attorney fees that it incurred to establish London's duty to defend and to prepare the fee petition. Zidell bases its fee request on ORS 742.061, which provides, in part: "[I]f 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 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." By its terms, ORS 742.061 applies to "any policy of insurance of any kind or nature." London notes, however, that in 2005 the legislature amended ORS 742.001 to except surplus lines insurance policies from the requirements of ORS chapter 742.1 London
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As amended in 2005, ORS 742.001 provides that "[t]his chapter * * * appl[ies] to all insurance policies delivered or issued for delivery in this state except * * * [s]urplus lines insurance policies." 1

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argues that the policies in this case are "surplus lines insurance policies"2 and that, as a result of the 2005 amendment to ORS 742.001, ORS 742.061 does not authorize Zidell to recover any attorney fees that it incurred after the effective date of the amendment. Zidell responds that the 2005 amendment does not apply to actions filed before its effective date.3 In this case, both parties argue that the 2005 act applies prospectively. They differ over the event to which the 2005 act prospectively applies. London argues that the act applies prospectively to fees incurred after its effective date, while Zidell argues that it applies prospectively only to actions filed after its effective date. In resolving the parties' dispute, we look initially to the text, context, and legislative history of the 2005 act. See Whipple v. Howser, 291 Or 475, 480, 632 P2d 782 (1981); cf. Spicer v. Benefit Ass'n of Ry. Emp., 142 Or 574, 593, 17 P2d 1107, 21 P2d 187 (1933) (following an express legislative direction that an amendment authorizing attorney fees on appeal for the predecessor to ORS 742.061 did not apply to actions filed before the Generally, if insurers admitted to do business in this state do not offer coverage for in-state risks, some brokers (surplus lines licensees) can place the coverage for those risks (surplus lines insurance) with insurers who are not authorized to do business in Oregon and who are eligible to accept such insurance. See ORS 731.144 (defining "surplus lines insurance"); ORS 735.405(3), (6), and (9) (defining respectively "eligible surplus lines insurer," "nonadmitted insurer," and "surplus lines licensee"). We note that the 2005 amendment to ORS 742.001, which excepts surplus lines insurance generally from several chapters of the revised statutes, is at odds with the more specific terms of ORS 742.061, which applies to "any policy of insurance of any kind or nature." Zidell does not argue, however, that the specific controls over the general. Rather, it assumes that the later-amended statute controls over the earlierenacted one but argues that the later amendment does not apply to this action. For the reasons explained below, we conclude that, even assuming the 2005 amendment controls, it does not apply to actions, such as this one, filed before its effective date. 2
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amendment's effective date). Those usual sources of legislative intent provide no help here, however. Nothing in the text, context, or legislative history of the 2005 act addresses whether that act applies prospectively or retroactively. See Or Laws 2005, ch 185; Minutes, HB 2160, Senate Business and Economic Development Committee, May 10, 2005.4 In the absence of guidance from those sources, this court "ordinarily [has] decline[d] to construe a legislative amendment to have a retrospective effect if to do so would 'impair existing rights, create new obligations or impose additional duties with respect to past transactions.'" Black v. Arizala, 337 Or 250, 271, 95 P3d 1109 (2004) (quoting Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or 533, 539 n 7, 577 P2d 477, cert den, 439 US 1051 (1978)); accord Joseph v. Lowery, 261 Or 545, 551-52, 495 P2d 273 (1972). In considering that issue, we note that this court explained more than 80 years ago that the predecessor to ORS 742.061 was intended "to protect an insured who has suffered a loss from annoying and expensive litigation." Murray v. Firemen's Ins. Co., 121 Or 165, 172, 254 P 817 (1927). Accordingly, this court recognized that an insured could allege a claim for attorney fees under the predecessor to ORS 742.061 if the insured had filed a proof of loss and if the insurer had not settled within the statutory House Bill 2160 made technical changes to the insurance code. As initially proposed, the bill did not address surplus lines insurance. It was amended late in the session to "[c]larify when the Insurance Code applies and does not apply to surplus lines." See Statement of Joel Ario, HB 2160, Senate Business and Economic Development Committee, May 10, 2005, Exhibit K (stating the purpose of the surplus insurance lines amendments to the bill). Nothing in the legislative history addresses whether or how the amendments to HB 2160 regarding surplus lines policies would apply to claims for attorney fees under ORS 742.061. 3
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time period, forcing the insured to bring an action on the policy and incur attorney fees. Id. at 170-71.5 To be sure, then as now, an insured's fee claim was not perfected until he or she recovered more than the insurer had tendered. Compare Oregon Laws, title XXXVI, ch I,

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