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California: Joint Pre-Trial Settlement Offer Valid in Wrongful Death Actions
In March, 2013, the California Court of Appeal affirmed the trial court’s award of expert witness fees to the prevailing party in a wrongful death suit.
After Steven McDaniel was killed in a multiple vehicle accident, his wife and daughter filed a wrongful death action against a number of defendants. Before trial, one of those defendants, Loyd Asuncion, made a joint settlement offer of $100,000, pursuant to Code of Civil Procedure section 998, to McDaniel’s wife and daughter. They did not accept the offer.
McDaniel’s wife and daughter prevailed against one defendant (to the tune of $3.3 million), but not against Asuncion.
As the prevailing party, Asuncion sought to recover his costs, including over $41,000 in expert witness fees. The trial court awarded those costs to Asuncion.
On appeal, the Court noted that the failure to accept a section 998 offer can have adverse consequences. For example, where, as here, a plaintiff fails to obtain an award more favorable than a rejected section 998 offer, that plaintiff must pay the defendant’s costs from the time of the offer forward.
The Court rejected the argument of McDaniel’s wife and daughter than Asuncion’s joint pre-trial offer was invalid because it was not apportioned between them. Though this argument would have traction, the Court noted, in a case where there was the potential for differing amounts of recovery by different plaintiffs, such is not the case in a wrongful death action. See: McDaniel v. Asuncion, 214 Cal. App. 4th 1201 (Cal. Ct. App. 5th Dist. 2013).
After Steven McDaniel was killed in a multiple vehicle accident, his wife and daughter filed a wrongful death action against a number of defendants. Before trial, one of those defendants, Loyd Asuncion, made a joint settlement offer of $100,000, pursuant to Code of Civil Procedure section 998, to McDaniel’s wife and daughter. They did not accept the offer.
McDaniel’s wife and daughter prevailed against one defendant (to the tune of $3.3 million), but not against Asuncion.
As the prevailing party, Asuncion sought to recover his costs, including over $41,000 in expert witness fees. The trial court awarded those costs to Asuncion.
On appeal, the Court noted that the failure to accept a section 998 offer can have adverse consequences. For example, where, as here, a plaintiff fails to obtain an award more favorable than a rejected section 998 offer, that plaintiff must pay the defendant’s costs from the time of the offer forward.
The Court rejected the argument of McDaniel’s wife and daughter than Asuncion’s joint pre-trial offer was invalid because it was not apportioned between them. Though this argument would have traction, the Court noted, in a case where there was the potential for differing amounts of recovery by different plaintiffs, such is not the case in a wrongful death action. See: McDaniel v. Asuncion, 214 Cal. App. 4th 1201 (Cal. Ct. App. 5th Dist. 2013).
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Related legal case
McDaniel v. Asuncion
| Year | 2013 |
|---|---|
| Cite | 214 Cal. App. 4th 1201 (Cal. Ct. App. 5th Dist. 2013) |
| Level | State Court of Appeals |