No Provision Required that Winning Defendant Enter Costs Judgment Under Any Deadlines.
Here is an interesting case that really is a big one to be archived in our “Deadlines” category. It goes to show you that recalcitrance, while not to be condoned, may not get punished unless there are statutory or court rule deadlines that are specific in application.
Millsaps v. Doehrman Co., Inc., Case No. C064390 (3d Dist. Apr. 11, 2011) (unpublished) was a situation where plaintiff employee sued both employer and a third party for personal injuries arising from a malfunctioning piece of equipment alleged to have been negligently installed by third party on employer’s premises. (Employer had paid workers’ compensation benefits to plaintiff, bringing a complaint in intervention to recover those benefits.) Third party made a 998 offer to plaintiff, offering to pay plaintiff $50,000 in exchange primarily for plaintiff’s agreement to indemnify and hold harmless third party from any claims or liens asserted by intervener employer. Plaintiff did not accept the 998 offer, but lost a jury verdict finding that third party did not install the equipment causing plaintiff’s injuries. Third party sought $50,000 in costs, with the trial court eventually awarding third party nearly $40,000 in costs and ordering third party’s counsel to reduce the favorable ruling to a form of order. However, defendant did nothing more on the case for more than two years, but eventually submitted a draft order that drew an estoppel/waiver challenge from plaintiff. Although finding the submission of the form of order “extremely tardy,” the lower court nevertheless entered it, prompting an appeal by the losing plaintiff.
The Third District affirmed.
Issue #1 was plaintiff’s challenge that the 998 offer was an impermissible offer made to “two parties” requiring all parties’ acceptance. This contention was rejected because employer did not have to agree to anything. Rather, plaintiff only had to accept the risk of indemnification if employer stuck to its guns and wanted full recovery on its workers’ compensation lien. Employer did not have to agree to anything, with the 998 offer being only a risk allocation issue between employee and the third party.
Issue #2 was plaintiff’s argument that third party was estopped or precluded by waiver from recovering costs by its delay in submitting the form of order to the lower court after obtaining a favorable costs ruling over two years earlier. On the estoppel front, plaintiff lost because there was no showing that he relied on the delay or was prejudiced from it. There similarly was no showing that third party waived its right to have the costs award included in the judgment. However, that really brought the appellate court to the key sub-issue of whether any deadlines were blown by third party. Actually, no. No time limit governs a party’s preparation of an order on a ruling granting costs. Atlhough the court clerk must immediately enter an unopposed costs memorandum request if no motion to tax costs is filed, that is the only deadline applicable in this area and one that was inapposite to the circumstances in the case. The appellate court did not condone the delay by the third party, but indicated that it would be unfair for third party to suffer a forfeiture when plaintiff failed to accept a 998 offer resulting in a shifting of costs exposure.