BRANDY WHITTENTON, CHARLES WHITTENTON, and DELILA WHITTENTON, a Minor, Appellants,
PETER PAN SEAFOODS, INC., Appellee.
from the Superior Court No. 3VA-14-00054 CI of the State of
Alaska, Third Judicial District, Valdez, Daniel Schally,
Judge pro tern.
R. Wickwire, Fairbanks, for Appellants.
William H. Ingaldson, Ingaldson Fitzgerald, P.C., Anchorage,
Before: Stowers, Chief Justice, Winfree, Bolger, and Carney,
Justices. [Maassen, Justice, not participating.]
mother and daughter were involved in a car accident, they and
the father sued the employer of the other vehicle's
driver. The employer made separate offers of judgment to the
mother and daughter under Alaska Civil Rule 68, which they
rejected. At trial all three plaintiffs were awarded damages.
But - with respect to the mother - the superior court awarded
partial attorney's fees to the employer under Rule 68
because the mother's award was less than 95% of the offer
made to her.
mother appeals, arguing that the offer of judgment was not a
valid Rule 68 offer and that the superior court wrongly
excluded certain costs that, when included, would have led to
an award of more than 95% of the offer of judgment. We
conclude that the offer of judgment was valid and that the
court did not err in excluding costs not covered by Alaska
Civil Rule 79 when comparing the offer to the mother's
FACTS AND PROCEEDINGS
Facts And Pretrial Proceedings
September 2011, while Brandy and Charles Whittenton and their
daughter Delila were on vacation in Valdez, a vehicle driven
by a Peter Pan Seafoods employee backed into their vehicle.
Only Brandy and Delila were in the vehicle at the time of the
Whittentons filed suit against Peter Pan in August 2013.
Brandy and Delila sought damages for pain and suffering from
injuries incurred in the collision. Brandy also sought
damages for medical expenses and damage to the vehicle, while
Charles sought damages for loss of consortium.
2015 Peter Pan made Alaska Civil Rule 68 offers of
judgment to Brandy and Delila. Peter Pan separately offered to
pay Brandy $23,500 and Delila $2,000, both "inclusive of
costs, interest and attorney's fees." Neither offer
was accepted. The following month the Whittentons amended
their complaint to add a new claim for loss of parental
consortium on Delila's behalf.
Trial And Post-Trial Proceedings
trial in October 2015 the jury awarded damages to all three
plaintiffs. Brandy was awarded a total of $ 15,796.33. The
jury awarded Charles $2,000 and Delila $4,524. The award to
Delila exceeded the offer of judgment made to her.
Pan then moved to be considered the prevailing party for Rule
68 purposes with respect to Brandy's claims. It argued
that Brandy's total recovery, including prejudgment
interest, costs, and attorney's fees, was $21,434.70 -
less than 95% of the $23,500 offer of judgment - and that it
was therefore entitled to 50% of the fees and costs it had
incurred after the offer was made. The Whittentons opposed,
arguing that the offer was invalid and that they had incurred
additional costs prior to the offer that Peter Pan had not
included in its calculation. This included costs related to
two depositions that did not occur as scheduled. In reply
Peter Pan conceded that the Whittentons were entitled to some
additional costs, but not enough to beat the offer of
superior court first denied Peter Pan's motion, citing
Progressive Corp. v. Peter ex rel
Peter. It ruled that because the offer was
addressed only to Brandy, it was "invalid as failing to
further the goals of [Rule 68] and AS 09.30.065 because it
would not have ended the entire litigation between the
parties." Peter Pan moved for reconsideration, arguing
that the judge had misinterpreted Progressive's
holding. The superior court reconsidered its decision and
declared Peter Pan the prevailing party under Rule 68.
Whittentons filed for reconsideration of the new order,
arguing that the Rule 68 comparison could not be made until
the clerk ruled on their costs bill and attorney's fees.
The superior court denied the motion and awarded Peter Pan
attorney's fees and costs. The Whittentons then moved to
correct a "clerical mistake," arguing that Peter
Pan's motion to be considered the prevailing party had
omitted some costs. The Whittentons claimed that they had
incurred $2,446.13 in costs before the offer of judgment -
$2,290.02 more than Peter Pan had originally calculated - and
that those costs all should be added to Brandy's award
for comparison with the offer. Peter Pan again conceded that
two of the additional cost items, totaling $207.50, should
have been included, but argued that the others were not
recoverable under Alaska Civil Rule 79. The court ultimately
denied the Whittentons' motion except as to the
additional $207.50 Peter Pan had conceded; Brandy's total
damage award remained less than 95% of the offer of judgment.
After subtracting attorney's fees and costs in favor of
Peter Pan, Brandy's total recovery was $3,374.68.
STANDARD OF REVIEW
interpretation of Rule 68 'is a question of law that [we]
review de novo, adopting the rule of law that is "most
persuasive in light of precedent, policy, and reason."
' " Whether an offer of judgment complies with
Rule 68 is also a question of law which we review de
novo, because "[a]n offer of judgment and
acceptance thereof is a contract."
is intended "to encourage reasonable settlements and
avoid protracted litigation." It allows a party, before
trial, to make an offer of judgment to an opposing party
"in complete satisfaction of the claim .. . with costs
then accrued." If the offer is not accepted and the
judgment finally rendered "is at least 5 percent less
favorable to the offeree than the offer," the offeree
must pay all costs allowed under the Civil Rules and a
percentage of "reasonable actual attorney's fees
incurred by the offeror from the date the offer was
Whittentons argue that Peter Pan's offer of judgment to
Brandy did not satisfy the requirements of Rule 68 because it
would not have ended the entire litigation. They also argue
that even if the offer was valid, Brandy beat the offer
because it should be construed to include all costs incurred,
not just costs allowable under Rule 79.
Peter Pan's Offer Of Judgment Was Valid.
order to trigger Rule 68 penalties, an unaccepted offer of
judgment must "include all claims between the parties
and be capable of completely resolving the case by way of a
final judgment if accepted." An offer that addresses
only some of a plaintiffs claims would not have that effect
and therefore would not satisfy Rule 68.The
Whittentons argue that Peter Pan's offer to Brandy was
invalid because it would have resolved only her claims and
would not have ended the entire litigation.
held that unapportioned offers are invalid, as are
apportioned offers that are conditioned on joint acceptance
by all parties. But we have also upheld an offer of
judgment that made a separate offer to each plaintiff such
that one plaintiff could have accepted an offer while the
other went to trial. The Whittentons acknowledge these cases,
but they argue that we have applied Rule 68 to require that
an offer of judgment must be capable of ending the entire
litigation between all parties involved, not merely between
the parties to the offer. Because a single offer to multiple
parties is barred by our decisions rejecting unapportioned
and conditional offers, they argue that Peter Pan was
required to make offers to all three plaintiffs.
Whittentons base their argument on Windel v. Mat-Su Title
Insurance Agency, which they say held that Rule 68 has a
goal "of completely resolving the
case."They argue that if we intended to hold
that an offer must entirely resolve the claims of only one
party to be valid, we would have stated that an offer of
judgment must be capable of resolving the
claim Because we did not, they argue,
Windel requires offers of judgment to resolve the
entire litigation among all parties. Peter Pan responds that
this reading is prevented by other case law and ...