Thursday, April 18, 2013

“Joint” Offer Under CCP § 998 Offer Upheld

A recent case out of the 5th District Court of Appeal has held that a “joint” offer of compromise to multiple plaintiffs in a wrongful death action was valid.  In McDaniel v. Asuncion (Cal. App. Fifth Dist.; March 27, 2013) 214 Cal.App.4th 1201, the Court determined that there was sufficient “unity of interest” between 2 heirs of a deceased that a single offer to them both was adequate.

The Court initially noted that “ ‘[i]n general, “a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.” ’ (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 545 (Burch).)”  

The Court then noted, however, that there is “an exception to this general rule.”  Where there is more than one plaintiff, a defendant may still extend a single joint offer if the separate plaintiffs have a “ ‘unity of interest such that there is a single, indivisible injury.’ ”  (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.)

The 5th District then pointed out that under California law, either the heirs or the personal representative on behalf of the heirs may bring a single joint indivisible action for wrongful death.  (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 696 (Smith).)  Any recovery for wrongful death is in the form of a lump sum, i.e., a single verdict is rendered for all recoverable damages.  (Smith, supra, 41 Cal.App.4th at pp. 696-697; San Diego Gas, supra, 146 Cal.App.4th at p. 1551.

Ultimately, the appellate court affirmed an award of expert costs, stating:  “In a wrongful death action, a single joint cause of action is given to all heirs and the judgment must be for a single lump sum.  A unitary verdict can easily be compared to a joint offer to determine whether the offering party has achieved a more favorable judgment. Thus, there is little, if any, justification for invalidating a joint Offer To Compromise made in a wrongful death case.” [McDaniel v. Asuncion (Cal. App. Fifth Dist.; March 27, 2013) 214 Cal.App.4th 1201.]

(Full opinion here- McDaniel v. Asuncion )

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