Statutory Offers to Compromise: Joint Offers

McDaniel v. Asuncion (2013) 214 Cal.App.4th 1201, 155 Cal.Rptr.3d 71

The wife and daughter of a man who was killed in a multiple vehicle accident brought an action for wrongful death against multiple defendants.  A jury returned a verdict in their favor against one defendant, but returned a defense verdict as to the only remaining defendant. The prevailing defendant filed a memorandum of costs to recover over $40,000 in expert witness fees, based upon the plaintiffs failure to obtain an award more favorable than a pretrial offer to compromise pursuant to C.C.P. § 998.

The trial court awarded the expert fees as requested, and the plaintiffs appealed, contending that the offer was void as a matter of law because it was made jointly as a single offer to two plaintiffs. The court of appeal reversed, holding that “although joint offers may be invalid… there is little, if any, justification for invalidating a joint offer in a wrongful death case”:

“[T]here is no justification for invalidating a joint offer in a wrongful death case on the ground that it may be impossible to determine whether any one party received a less favorable result at trial than that party would have received under the offer. Rather, there is only one verdict to compare to the one joint offer. It is easy to make that comparison and resolve this issue. Here, with a defense verdict, it is clear that appellants received a less favorable judgment than respondent’s offer.

One aspect of this case distinguishes it from the situations in Gilman, Stallman and Johnson. Here, the offer was made to multiple plaintiffs as opposed to having been made by multiple plaintiffs.

In the typical case other than wrongful death, when one offer is made to multiple plaintiffs, the plaintiffs need to agree between themselves as to apportionment before accepting the offer. … As the Meissner court noted, permitting such joint offers would introduce great uncertainty in that plaintiffs would be required to second-guess all joint offers to determine whether a failure to reach agreement with coplaintiffs would cause a risk of section 998 costs against them. …Thus, a defendant must serve a separate offer on each individual plaintiff. In other words, the defendant must apportion the offer between the plaintiffs.

However, in a wrongful death action any recovery is in the form of a lump sum, i.e., a single verdict is rendered for all recoverable damages, and thereafter the court apportions the award between the heirs. Thus, a defendant’s attempt to apportion the plaintiffs’ recovery through a section 998 offer would contradict the requirement that the court determine the respective rights in a wrongful death award. (§ 377.61.)

In sum, respondent’s joint section 998 offer in this wrongful death action was valid. There was a single verdict to compare to a single joint offer. Further, if appellants had recovered from respondent, it would have been up to the court, not the parties, to apportion the award. Accordingly, the reasons for requiring a party to expressly apportion a section 998 offer made to multiple parties did not apply.”