Wife’s Separate Loss of Consortium Recovery Did Not Have to Be Factored In, When 998 Offer Was Not Joint In Nature.
The next case—Wright v. Noack, Case No. C073459 (3d Dist. Sept. 23, 2014) (unpublished)—shows how a well-crafted CCP § 998 offer can indeed yield positive results for the defense, especially in a joint plaintiff case involving distinct claims (but claims which may seem interrelated for spouses).
In this one, plaintiff husband sued for a bad injury to his leg in a “Parade of Lights” holiday event and plaintiff wife sought loss of consortium damages resulting from the injury. Importantly, the defense served a 998 offer only to husband for $60,001. Later, after a jury trial in which husband was found 25% comparatively negligent, a judgment of $54,805.50 was entered in favor of husband. When pre-998 offer costs were factored in, the “total” award to husband was $59,552.92—oh so close but oh yet so far, $448.08 less than the defense 998 offer. Plaintiff wife was awarded $30,000 by the jury for consortium loss; but, after deduction of the 25% comparative negligence component, $22,500 was the “net” award. When it came to awarding costs, that is where the rubber met the road, so to speak. The lower court found the defense beat husband’s award, so that it was entitled to “offset” substantial costs as the prevailing party (mainly expert fees) resulting in only a net, net award of $1,389.63 to husband. However, wife got not only $22,500, but a separate $5,898.15 in costs.
Husband appealed, contending it was error not to add the loss of consortium recovery to his recovery for purposes of determining if the 998 offer “beat” the recovery. The Third District disagreed. Aside from the lack of authority, the clinching factors were two in nature: (1) the 998 offer was only made to husband, beating his recovery; and (2) loss of consortium is a separate claim distinct to wife, such that husband’s potential community property interest in it did not negate its legal distinctiveness.