 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Davila v. Nickell10/26/2005
endant does not accept . . ., and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff's first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment . . . ."
The Louies argue the court's prejudgment interest award was improper because it was based on the total compensatory damages, including the damages awarded to Barraza. The record does not support this argument. The record shows the award was based only on the compensatory damages awarded to the Davila plaintiffs.
The Louies alternatively argue the section 998 prejudgment interest penalties were inapplicable because the offer was a "joint" offer by multiple plaintiffs. The Louies rely on Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121, 124, which held that a settlement offer made jointly by wrongful death plaintiffs does not trigger section 998 penalties because it did not afford the defendant the opportunity to evaluate the separate and distinct loss suffered by each plaintiff as a result of the death. (Id. at p. 126.) The Gilman court also expressed concern that a joint offer makes it impossible to determine whether each individual plaintiff recovered more than the settlement offer. (Ibid.; see also Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 410.)
Several courts have disagreed with Gilman's analysis. (See Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 628-630; Stallman v. Bell (1991) 235 Cal.App.3d 740, 746; see also Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 263.) These courts have reasoned that because a wrongful death action requires a unitary damage award, there is but a single verdict to be compared to a single offer, and from this comparison it can be clearly determined whether the appellants received a more favorable judgment. (Johnson, supra, at p. 630; Stallman, supra, at pp. 746-747.)
We agree with the reasoning of Johnson and Stallman as applied in this case. As in Johnson, it is absolutely clear that the Davila parents received a greater amount in damages after trial than they would have received had each defendant accepted the joint offer, even if the entire amount of the offer is attributed to each Davila parent. Each parent's $900,000 compensatory damage award leaves no doubt that the plaintiffs' recovery exceeded the $750,000 statutory offer. We thus conclude that the fact the section 998 offer was a joint offer does not negate the applicability of the prejudgment interest penalty.
However, the amount of the prejudgment interest award must be conditionally reversed because we are reversing the judgments as to the three Davila children for a limited retrial on the standing issue. The interest award was computed based on the Davila plaintiffs' total compensatory damage award, which included the Davila children's recovery. On remand, the court (or jury) should first determine the standing issue as to the minors. If the minors are found to have standing under Code of Civil Procedure section 377.60, subdivision (c), the court should reinstate the compensatory damages and re-enter the prejudgment interest award. If the Davila children are found not to have standing under Code of Civil Procedure section 377.60, the court should recalculate the interest based solely on the Davila parents' compensatory damage recovery and award that interest only to the Davila parents.
DISPOSITION
The judgment as to the Davila children is reversed, and the matter remanded for a limited retrial on the issue whether these plaintiffs had standing to bring a wrongful deat
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 California Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|