[CLBS] interplay of 12-120(4) and offer of judgment

[Loren K. Messerly]

Have a scenario that undoubtedly occurs often but no resolution by our appellate courts. Plaintiff makes demand regarding personal injury case. Insurer client makes offer to resolve that is low or maybe forgets to respond altogether. 60 days pass and then Plaintiff files suit and claims that he has leverage on defendant to recover all attorney fees and costs if they just do better than the low or nonexistent pre-complaint offer, pursuant to 12-120(4). Defendant then makes offer of judgment for a reasonable amount to resolve the suit and retorts that Plaintiff will have to beat that number at trial (less pre-offer attorney fees) if he wants to recover all attorney fees and costs. Plaintiff claims that the offer of judgment does not limit the liability under 12-120(4). Defendant responds that this makes no sense since both provisions are to encourage early resolution and the offer of judgment takes into account the attorney fees that the Plaintiff had to spend filing the complaint. Has any Judge resolved this? Can anyone send me an order?




Loren K. Messerly | attorney
greener | burke | shoemaker | oberrecht p.a.
950 w. bannock street, suite 950|boise|idaho 83702-6138
o: 208.319.2600|f: 208.319.2601|e: lmesserly at greenerlaw.com
CONFIDENTIALITY NOTICE: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please destroy all copies of this communication and any attachments. Thank you.