Opinion
No. 337, 2001.
Submitted: January 10, 2002.
Decided: March 11, 2002.
Court Below: Superior Court of the State of Delaware in and for New Castle County C.A. No. 98C-09-084
Affirmed.
Unpublished Opinion is below.
JOHN J. BEAUDET, Plaintiff Below, Appellant, v. EDWARD THOMAS, Defendant Below, Appellee. No. 337, 2001 In the Supreme Court of the State of Delaware. Submitted: January 10, 2002 Decided: March 11, 2002
Before HOLLAND, BERGER and STEELE, Justices.
CAROLYN BERGER, Justice:
ORDER
This 11th day of March, 2002, upon consideration of the briefs of the parties, it appears to the Court that:
1) This is a personal injury action arising from a motor vehicle accident in which John J. Beaudet ran into the rear of Edward Thomas's car while it was stopped at an intersection. The case was heard by an arbitrator, who awarded Thomas $40,000. Beaudet demanded a trial de novo, and made a $2,500 offer of judgment. Thomas rejected the offer of judgment and the case went to trial. After hearing testimony for two days, the jury awarded Thomas $1,000.
2) Both sides filed post trial motions. Thomas asked for a new trial and/or additur. Beaudet asked to have his trial costs taxed against Thomas because the verdict was less than his offer of judgment. The Superior Court denied both motions. Beaudet appealed and Thomas cross-appealed.
3) Beaudet argues that, pursuant to Superior Court Civil Rule 68, the trial court has no discretion to deny costs in a case where plaintiff recovers less than the amount offered by defendant. He bases his argument on the language of the Rule:
Rule 68. Offer of Judgment.
At any time more than 10 days before the trial begins a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. . . . An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. . . .
4) Thomas argues that, since the purpose of Rule 68 is to encourage settlement, the trial court should be allowed to evaluate the bona fides of the offer of judgment and deny an award of costs if it finds that the offer of judgment was unreasonable.
5) Rule 68 plainly states that "the offeree must pay the costs incurred after the making of the offer." The trial court has no discretion about whether to award costs, assuming the offer of judgment was timely; it was rejected; and the plaintiff recovers an amount less than the offer. The court's discretion is limited to an analysis of whether the requested amounts are appropriately categorized as "costs" under Superior Court Rule 54.
See: Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 509 (Del. 2001) (No recovery of costs if, after offer of judgment, verdict is for defendant.).
6) In his cross-appeal, Thomas argues that the jury verdict was inadequate and was tainted by photographs showing very little damage to Thomas's car. Relying on the recent decision in Davis v. Maute, Thomas says that the photographs should have been excluded and that he is entitled to a new trial.
770 A.2d 36 (Del. 2001).
7) In Davis, this Court held that, "in general, counsel may not argue that there is a correlation between the extent of the damage to the automobiles in an accident and the extent of the occupants' personal injuries . . . in the absence of expert testimony on the issue." The Davis court also ruled that, assuming that photographs of the cars are otherwise admissible, it is error to admit the photos without a limiting instruction to the jury.
Id. at 38.
8) In Davis, counsel objected to the introduction of the photographs. In this case, counsel did not. As a result, the trial court's failure to exclude the photographs, or give a limiting instruction, is reviewed for plain error. Under that standard of review, "the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
9) We find no plain error. The closing arguments properly focused the jury on the medical evidence and on Thomas's credibility in assessing the seriousness of his injuries. Moreover, it is apparent that the jury did base its verdict on the medical evidence because, in a note to the judge, the jury asked about the dates of Thomas's doctor visits.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court denying Beaudet's motion for costs is REVERSED and this issue is REMANDED to the Superior Court; and the judgment of the Superior Court denying Thomas's motion for a new trial or additur is AFFIRMED.