Opinion
C.A. No. 00C-12-044 JTV
Submitted: September 13, 2002
Decided: December 31, 2002
Upon Consideration of Defendant's Motion for Costs DENIED
Jeffrey J. Clark, Esq.,
Robert B. Young, Esq.
OPINION
Plaintiff Katrina Flood filed suit for damages arising from injuries which she sustained in an automobile accident. Her husband, Darryl Flood, asserted a claim for loss of consortium. At the conclusion of trial, a jury returned a verdict of $20,000 for Ms. Flood and zero for her husband. Before trial, the defendant made an offer of judgment in the amount of $26,000 pursuant to Superior Court Civil Rule 68. The offer was not accepted. The defendant has now filed a motion for costs in which he contends that costs should be awarded to him pursuant to Superior Court Civil Rules 54 and 68 and 10 Del. C. § 5101. He seeks reimbursement for expert witness fees for two physicians who testified at trial, one live and one by deposition, and a transcript fee for the one who testified by deposition.
Under Rule 68, a party defending against a claim may offer to allow judgment to be taken against the party for an amount specified in the offer. The offer must be made more than ten days before trial. If the adverse party does not accept the offer within ten days, it is deemed withdrawn. If the adverse party obtains a judgment against the defending party which is not more favorable than the offer, the defending party is entitled to costs accrued after the date the offer was made. The purpose of Rule 68 is to encourage settlements by shifting to the plaintiff part of the risk of proceeding with the lawsuit where it appears likely that "the plaintiff will obtain a judgment but the amount of recovery is uncertain." General principles of contract law are applicable in interpreting offers of judgment and their acceptance. An award of post offer costs is mandatory if the offer of judgment is an effective offer.
Delta Airlines, Inc. v. August, 450 U.S. 346, 352 (1981); 13 James Wm. Moore et al., Moore's Federal Practice § 68.02 (3d. Ed. 2002).
Moore et al., supra, note 3, § 68.04.
Mulford v. Hass, 2001 Del. Super. LEXIS 172, at *13 (Del.Super. 2001).
No award of costs can be made against Mr. Flood under Rule 68 in this case because the jury returned a zero verdict as to him. In Hercules, Inc. v. AIU Ins. Co. the Delaware Supreme Court held that the rule does not apply to an adverse party who does not obtain a judgment. The issue, therefore, is whether, or not, the offer is effective as against Ms. Flood.
784 A.2d 481 (Del. 2001).
The defendant's offer of judgment read as follows:
"NOW COMES Defendant, Timothy Riley, and makes this Offer of Judgment, to wit: $26,000.00, plus trial costs accrued as of June 20, 2002, pursuant to Superior Court Civil Rule 68."
The offer does not state how much of the $26,000 was offered to Ms. Flood for her claim, or how much was offered to Mr. Flood for his claim. For an offer to be effective, the Court must be able to determine whether the amount offered an individual offeree is more favorable than the judgment obtained by that offeree. Courts in several cases in this and other jurisdictions have concluded that this determination cannot be made where an unallocated offer is made to two or more adverse parties. Since the offer in this case was not individualized as to each plaintiff, it is not possible to determine whether the judgment obtained by Ms. Flood was not more favorable than the offer. The Court is not willing to presume that the offer of judgment made to both Mr. and Ms. Flood in this case contained an offer of $20,000 or more to Ms. Flood. Therefore, the defendant's request for assessment of costs against Ms. Flood under Rule 68 will be denied.
Gavoni v. Dobbs House, 164 F.3d 1071, 1075 (7th Cir. 1999).
164 F.3d 1071; Lintz v. American General Finance, Inc., 76 F. Supp.2d 1200 (D.Kan. 1999); Orr v. Field, 2002 Del. Super. LEXIS 342 (Del. Super 1992); Smith et al. v. Sante Volpe, Inc., 1992 Del. Super. LEXIS 28 (Del.Super. 1992).
Since Ms. Flood prevailed in her personal injury claim, the defendant cannot recover costs against her under Rule 54 or 10 Del. C. § 5101. The fees sought relate to her injury claim. Therefore, costs will not be assessed against either plaintiff.
The defendant's motion for costs is denied.
IT IS SO ORDERED.