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

[Bron Rammell]

Loren,

The offer has to exceed what you get in damages plus all (not just
reasonable) fees and costs at least up to the offer of judgment.
While 12-120(4) includes fees and costs, an offer of judgment is only
for ordinary (not extra-ordinary) costs;not fees.  An offer of
judgment may be used in some instances to determine if you are the
prevailing party (assuming your fees and costs plus the award are less
than the offer).

Bron

Sent from my iPad

> On Feb 27, 2015, at 3:18 PM, Loren K. Messerly <lmesserly at greenerlaw.com> wrote:
>
> 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.
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