Plaintiff Claimed Offset Should Not Have Been Considered, But Total Calculus Of Offer Still Meant Defendant Won.
We have told you before in our category “Section 998” that Code of Civil Procedure section 998 offers deserve careful consideration and sometimes even byzantine arithmetic to make sure they are properly analyzed. The next case demonstrates the importance of these key considerations.
In Haskell Corp. v. ConocoPhillips Co., Case No. A124446 (1st Dist., Div. 4 Mar. 14, 2012) (unpublished), plaintiff did get a net judgment of $2.3 million after factoring in a $1.3 million offset judgment for defendant. However, the defense put forward a $2.9 million pretrial 998 offer, which it argued beat what plaintiff recovered. (Importantly, defendant did structure the offer in a way to not seek reimbursement for $1.1 million in payments made to plaintiff’s subcontractors.) Plaintiff argued that its $3.6 million recovery before offset beat the 998 offer. The trial court disagreed, awarding the defense $180,000 in postoffer expert witness fees.
Affirmed on appeal. After all, the Court of Appeal found, you did have to factor in the $1.1 million given up on subcontractor claims. When that was factored into the $2.9 million 998 offer, then the real $4.0 million offer meant that the defense was entitled to postoffer expert fees as the 998 winner.