Weekly Law Resume - May 9, 2013: A Single Statutory Settlement Offer Made to Multiple Plaintiffs in a Wrongful Death Suit is Valid

by Low, Ball & Lynch
Contact

Amy Jo McDaniel, et al. v. Loyd Richard Asuncion
Court of Appeal, Fifth District (March 27, 2013)

California has a statutory settlement procedure (Code of Civil Procedure § 998) by which a party may make a written offer to compromise and, if that offer is not accepted and the opposing party fails to recover a judgment more favorable than the offer, then (in the case of an offering defendant) recovery of costs shifts in favor of the offering party and (in the case of either party) the offering party may recover otherwise unrecoverable expert witness fees. Ordinarily, a single settlement offer made to multiple plaintiffs is considered to be invalid because, among other reasons, of the impossibility of determining whether any individual plaintiff’s judgment is “more favorable” than the joint settlement offer that was made to all plaintiffs.

In this case, the Court of Appeal determined that a single 998 offer made to two plaintiffs in a wrongful death action was valid because in a wrongful death action a single joint action is given to all heirs and the judgment must be for a single lump sum. Thus a single verdict can easily be compared to a joint offer to determine whether the offering party has achieved a more favorable judgment. The defendant in this case made a single $100,000 settlement offer to both plaintiffs. The plaintiffs recovered a $3.3 million verdict against a co-defendant but the jury returned a defense verdict in favor of the defendant who had made the statutory 998 offer. Because plaintiffs failed to obtain a more favorable judgment as to the offering defendant, that defendant was awarded $41,000 in expert witness fees by the trial court.

In reaching its conclusion affirming the trial court, the Court of Appeal noted that three other Courts of Appeal had considered the issue and had reached two different results. In Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 12, four plaintiffs had made a joint 998 offer to a single defendant in a medical malpractice wrongful death action. When the judgment at trial was more favorable than the offer, the trial court awarded plaintiffs their expert witness costs. The Sixth Appellate District reversed that award. The court concluded that the joint offer did not afford the defendant the opportunity to evaluate the distinct loss suffered by each plaintiff as a result of the death. The court further noted that without apportionment it was impossible to say that any one of the plaintiffs received a judgment more favorable than the offer.

In contrast to Gilman, in Stallman v. Bell (1991) 235 Cal.App.3d 740, Division Four of the Second Appellate District held that a joint 998 offer made by two plaintiffs in a wrongful death action was valid and upheld the trial court’s award of expert witness fees. The court reasoned that, unlike the cases in which the individual plaintiffs receive separate verdicts, in wrongful death actions there is but a single verdict to be compared to a single offer and from this comparison it can be clearly determined whether or not the plaintiffs received a more favorable judgment.

The third case to consider the matter, Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, noted that the results in Gilman and Stallman cannot be reconciled. Thus, Division Three of the Fourth Appellate District was required to make a choice and it decided that Stallman was the better reasoned decision. The Johnson court noted that because a wrongful death judgment must be for a single lump sum, even though the heirs share the damages in proportion to their loss, there would be little, if any justification for invalidating a joint offer. On that basis the Court found that the trial court properly awarded the plaintiffs their expert witness fees.

COMMENT

For a copy of the complete decision see:

http://www.courts.ca.gov/opinions/documents/F064240.PDF


 

Written by:

Low, Ball & Lynch
Contact
more
less

Low, Ball & Lynch on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.