Strategies, Challenges, and Answers

A Fee Shifting Strategy For Nevada’s District Courts: Part 3

AN OFFER OF JUDGMENT SUCCESS STORY

Over the course of the last few years, several Mills & Associates Newsletters have been devoted to the strategy of serving Offers of Judgment in defense litigation cases.  An exceptionally good example of how this Offer of Judgment strategy can make a difference presented itself in a wrongful death case that this office recently settled.  With the permission of the insurance carrier and the clients, please allow me to describe the circumstances related to the case and how the Offer of Judgment strategy managed to contribute to a good resolution of a case.

952313_gavel I.  FACTS

This wrongful death case was brought by a young lady whose mother was killed in a drunk driving accident.  The mother was a passenger in a vehicle driven by a drunk driver.  The mother was also intoxicated with a blood alcohol content of .27.

Mills & Associates represented the driver of a tractor trailer combination.  The accident occurred on a rural highway at night in Nevada with one lane going in each direction.  There were reports that the vehicle in which the decedent was riding had its taillights out.

The driver of the semi truck, approaching the other vehicle from the rear, began to pass the decedent’s vehicle.  Just as the tractor moved into the oncoming traffic lane to begin the pass, the driver of the decedents’ vehicle lost control and swerved directly into the path of the semi truck.  Both the driver and the passenger were instantly killed.

The investigating officers did not cite the semi truck driver.  Nevertheless, the daughter sued the semi driver and the owners of the semi truck.  The argument they made to the court was that the semi truck driver knew or should have known that the driver of the decedents’ vehicle was drunk and should not have tried to pass at the time and location where he did.

II.  PROCEDURAL BACKGROUND

In the lead up to trial, there were a number of decisions made by the court that persistently impacted the defense’s ability to put on its case.  As a result of discovery sanctions imposed as a result of delays from the semi truck driver, the judge ordered that the semi truck driver would not be allowed to testify at trial.  In addition, the court inexplicably ruled that the blood alcohol content of the passenger was not admissible at trial, stating that it is not illegal for a passenger to be drunk in a vehicle.  These two, and other less consequential rulings, meant that the defense was heading into trial with not only one but virtually both hands tied behind its back regarding how it would prove its case to the jury.

III.  THE OFFER OF JUDGMENT

In Nevada, wrongful death cases are made up of two significant parts.  The first part of a wrongful death claim allows the estate of the decedent to recover for the final medical expenses leading up to the death of the decedent and the funeral expenses.  The second part, of a wrongful death claim deals with damages to the heir, including but not limited to the heirs grief and sorrow, as well as the loss of support, comfort, and consortium between the decedent and the heir.

Early in the case, the carrier offered to settle the claim of the heir for a nominal amount.  More importantly, however, the carrier served the estate with an Offer of Judgment to settle its claim for $5,000.  It was learned through discovery that there were no medical bills related to the treatment provided at the scene by the paramedics to the decedent.  Thus, the only special damage incurred by the estate was the funeral expense in the amount of $2,500.

IV.  HOW THE EFFECT OF THE OFFER OF JUDGMENT PLAYED ITSELF OUT IN THE DAYS BEFORE TRIAL

The Offer of Judgment that was served on the estate had a devastating effect from the plaintiff’s perspective.  Because the amount of the Offer of Judgment was twice what the estate could recover, even on its best day, it was clear that the Defense was going to obtain a result better that any result the estate could obtain at trial.  That meant that the estate was going to be subject to the effects allowed by the Offer of Judgment rules.  This gave the defense a great negotiating advantage.  This negotiating advantage overcame in part the rulings that the judge had made against the defense on issues of liability.  Even though the judge had ruled that our driver could not testify and had ruled that the blood alcohol content of the passenger was not relevant, it was obvious we were going to be able to better at trial the Offer of Judgment served on the estate.

If the case had gone to trial, and assuming that the estate had recovered only  $2,500 as predicted, the defense would have been able to argue that it was entitled to recover all of its attorney’s fees and costs incurred since the time if served its Offer of Judgment very early on in the case.  Any award of attorney’s fees and costs against of the estate could have been offset against any verdict.  Furthermore, the only viable asset of the decedent was her home and it was an asset of the estate.  The daughter felt threatened that if the defense prevailed, that it might be able to take her mother’s home from her.

Just before trial, the daughter recognized this threat.  Her demands dropped from over a million dollars down to the hundreds of thousands.  Ultimately the settlement came at an amount well below $100,000.

The plaintiff’s attorney admitted to me in discussions after the settlement had been reached that the Offer of Judgment made a huge effect in the settlement of the case.  His client realized that she could lose the house in which she was living and would never have the opportunity to regain it if the defense were to successfully obtain attorney’s fees and costs against the estate.

V.  CONCLUSION

Although the Offer of Judgment was not allowed to come to a full concluions following trial, it is clear that the Offer of Judgment had a moderating effect on the position advocated by the plaintiff.  I believe that it was one of the main factors in bringing this case to a resolution.  In light of the adverse evidentiary rulings by the court, the Offer of Judgment threat weighed heavily on their minds in making a decision as to how this matter should be resolved.

This is just one very striking example of how Offers of Judgment can help bring cases to conclusion or in the alternative to obtain an advantage post trial.  The Offer of Judgment strategy is one that we advocate strongly.  If you have questions about it, please feel free to contact me to discuss how you can use that strategy in your case to your advantage.

Additional information on strategically implementing Offers of Judgment in Nevada litigation can be found by clicking HERE.  We also encourage you to explore the “Categories” listed in the right column for related topics. 

If you have any questions about the Offer of Judgment or any other litigation strategies, feel free to contact me at 702.240.6060 or by email.

— Mike Mills

 

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Michael Mills About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

 
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