§68.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§68.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

Strategic and practical considerations related to CR 68 and FED. R. CIV. P. 68 are discussed below.

(1) Interplay between CR 68 and Washington statutes

Various provisions of Chapter 4.84 RCW are consistent with the provisions of CR 68. Pursuant to RCW 4.84.030, for example, a "prevailing party" is entitled to recover costs and disbursements. Such costs include miniscule statutory attorney fees only. RCW 4.84.010(6), .080.

In contrast to CR 68, attorney fees may be recovered by either plaintiff or defendant as the prevailing party under RCW 4.84.250. That statute provides for the recovery of reasonable attorney fees as costs in suits seeking damages of $ 10,000 or less. Fees must be pleaded to be recoverable under RCW 4.84.250. Tatum v.R&R Cable, Inc., 30 Wn. App. 580, 585, 636 P.2d 508 (1981), review denied, 97 Wn.2d 1007 (1982), overruled insofar as inconsistent, Beckmannv. Spokane Transit Auth., 107 Wn.2d 785,733 P.2d 960 (1987). In Beckmann the court ruled that in personal injury actions in which, pursuant to RCW 4.28.360, the complaint does not state the actual amount of damages plaintiff seeks, the notice of offer of settlement under RCW 4.84.280 assures sufficient notice that attorney fees are being sought. Beckmann, 107 Wn.2d at 790. The provisions of RCW 4.84.280 differ somewhat from CR 68 with respect to the timing of making the offer. As with CR 68, a defendant is considered a "prevailing party" for purposes of RCW 4.84.250 if the plaintiff recovers either nothing or a sum not exceeding that offered by the defendant in settlement. RCW 4.84.270; see also RCW 4.84.250, .280.

In light of CR 68, the validity of RCW 4.84.110 and .120 comes into question. RCW 4.84.110, in an action for money, allows that the plaintiff shall pay the costs if the amount "as by agreement ought to be tendered" by the defendant is paid into court and plaintiff fails to better it. RCW 4.84.120 provides for a defendant to deposit funds in court, which, if rejected by plaintiff, will result in taxing the costs of the action to plaintiff, if plaintiff's recovery is less than the deposit in court. 10A David E. Breskin, Washington Practice: Civil Procedure Forms §68.1 (3d ed. 2012).

In circumstances in which such statutory provisions may conflict with CR 68, the conflict is to be resolved in favor of CR 68. See Tippie v. Delisle, 55 Wn.App. 417, 421, 777P.2d1080 (1989), review denied, 114 Wn.2d 1003 (1990).

Strategically, CR 68 offers, as with offers under RCW 4.84.250, are more telling in smaller stakes litigation, in which costs associated with trial are a higher percentage of the stakes in the case, or the recovery sought is small relative to the costs and fees involved.

Comment: Offers of judgment may become more useful in defining the "prevailing party" after Marassi v. Lau, 71 Wn.App. 912, 859 P.2d 605 (1993), abrogated on other grounds by Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009). There the court rejected the net affirmative judgment or "substantially prevailing" standard, in a case in which the plaintiff prevailed on only two of the original twelve claims, in favor of a proportionality approach. Id. at 916. A proportionality approach results in an award of prevailing party fees on a claim-by-claim basis; the fee awards are then offset. Id. at 917-18. However, the court

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