Second District, Division Six Reverses Expert Witness Cost Award Where No Individual Apportionment Made In Wrongful Death Case.
In an earlier post on Alkire v. Vaughn, we discussed how a “single/indivisible damage injury” case could sustain a Code of Civil Procedure section 998 offer to multiple plaintiffs without an apportionment. Conversely, the next case we explore demonstrates how a 998 offer made to multiple parties was held to be too conditional because each plaintiff had a personal and separate claim that needed to be addressed.
St.Clair v. C & D Towing, Case No. B200170 (2d Dist., Div. 6 June 24, 2008) (unpublished) involved a wrongful death case brought by adult children arising from their parents’ death. Two defendants made a 998 offer to both children, not apportioned between them, and containing no provision that it was directed to either of them individually. Children did not accept, children lost at trial (with the 998 offer of $202,000 beating the adverse zero judgment), and the trial judge awarded defendants $46.634.05 in sought-after $60,528.58 expert witness fees under section 998. Children appealed, lost the merits but won a reversal of the 998 expert witness fee award.
As did the winners in Alkire, defendants argued that the joint 998 offer was valid because children had a unity of interest based on a “single, indivisible injury.” Not so, the appellate court determined. Although a wrongful death claim is joint in terms of requiring joinder by all heirs and joint in that damages are awarded in a lump sum, that is where jointness ends. Importantly, each plaintiff has a separate, personal claim with respect to the loss of the decedent. That personal, separate interest by each plaintiff distinguished the matter from Vick v. DaCorsi, 110 Cal.App.4th 206, 212 (2003), where a 998 offer was made to husband and wife with a community of interest.
Alkire and St. Clair teach that joint 998 offers must be evaluated against the substantive elements of the claims at issue. If separate interests are involved substantively, unapportioned and joint 998 offers likely will not pass muster.