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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