“Bear Costs” Language In Offer Trumped Surplusage “Plaintiff Can File Costs Bill” In Acceptance Proposal.
Whatley-Miller v. Cooper, Case No. B237335 (2d Dist., Div. 8 Jan. 15, 2013) (published) is an interesting add-on to the prolific increase in cases we have seen under Code of Civil Procedure section 998 pretrial offer jurisprudence.
In this one, widow and two daughters sued for medical negligence and wrongful death against a doctor, obtaining a $1.4 million jury verdict. The trial court later reduced economic damages some, but the combined economic/noneconomic damages verdict came to about $1.2 million. Earlier, about two months after commencement of the action, plaintiffs floated a 998 offer for a total of $950,000, each side to bear his/their own costs, an offer that was rejected. The trial court then awarded successful plaintiffs $530,315.99 in costs, $108,191 of which comprised expert witness fees, prompting an appeal by the defense.
The costs awards were sustained in entirety.
The principal argument was that the 998 offer was invalid because it did not have acceptance language in the offer, notwithstanding that the offer and the acceptance proposal were contained in separate documents transmitted in the same envelope. Nope, said the appellate court, nothing in the statute says the acceptance language has to be in the offer, with the separate acceptance proposal satisfying the statutory criterion.
The next challenge emanated from a discrepancy: the offer said each side to “bear his/their own costs” while the acceptance proposal said that any costs by plaintiff could be submitted through a costs bill. The appellate court saw no fatal ambiguity, given that the offer was clear such that plaintiffs could not seek costs given the terms of the offer.
The defense argued that the 998 offer was not made in good faith or was not reasonable in nature, an argument nixed by the reviewing court. Although the offer was sent early on in the litigation, the defense had considerable information on decedent husband’s annual income and on the financial impact of his death on his family–information made available during discovery. Plus, the defense did not ask for additional information, something it should have if it was truly missing information.
Finally, the amount of the expert witness fees (part of the costs) were reasonable in nature. The defense’s mere argument in its reply brief in lower court proceedings did not rebut the presumption accorded to costs set forth in a verified costs memorandum.