On January 30, 2019, the Third District Court of Appeal affirmed a jury trial verdict and the award of expert fees in Jim Miller’s client’s favor in an unpublished decision. Jim’s client was also awarded the costs of appeal.
The appeal arises from a ten day jury trial that was completed in May, 2015. Jim Miller was also the trial attorney for the defendant. For a summary of the trial, please review the May 2015 post of Ziert v. Young’s Lockeford Payless Market, Inc.
At that time of the trial, the jury awarded plaintiff Ziert his co-payments only and did not award any other medical expenses, wage loss or general damages. The jury then found the plaintiff 75 percent comparatively at fault which resulted in a verdict of $720 in favor plaintiff and against Jim’s client. The verdict as to intervener was $0 and therefore, a judgment in favor of Jim’s client against intervener was entered.
Early in the litigation, Jim had served 998 Offers on both the plaintiff and intervener and those offers were in excess of the jury verdicts. Accordingly, the trial judge awarded Jim’s client its expert fees. The total judgment awarded to Jim’s client against the plaintiff and intervener joint and severally was $136,062.70.
Initially, both the plaintiff and intervener filed appeals arguing that there were facts insufficient to support the jury’s verdicts and that the trial court should not have awarded costs due to an improper 998 Offer. While the appeal was pending, the intervener and Jim’s client reached a confidential settlement. Therefore, the intervener dismissed it’s appeal. However, plaintiff’s appeal went forward.
The Court of Appeal issued its unpublished decision first noting that plaintiff’s attorney failed to present a proper record on appeal to allow it to address the issues argued in plaintiff’s appeal. The Court of Appeal then delved further noting that the record on appeal which was presented by plaintiff was adequate to show that there was sufficient evidence to support the jury verdict.
As for the awarding of costs, the Court of Appeal again affirmed the trial Court’s decision. The 998 that was offered to plaintiff was by Young’s Market and two other defendants, Louis and Harry Young. Louis and Harry had not yet been dismissed from the lawsuit at the time of the offer but ultimately were before the matter went to trial. Additionally, the 998 Offer also included the phrase that acceptance of the offer will also constitute satisfaction and settlement of all existing liens.
Plaintiff argued that the 998 was invalid because the offer included the individual defendants, Louis and Harry. The Court of Appeal ruled that it can be determined that the 998 Offer exceeds the judgment because there is no pending or anticipated action that might yield a judgment against the individual defendants whom plaintiff dismissed from the lawsuit. The Court of Appeal went on to offer that although the dismissal was without prejudice, there was no reason to anticipate renewed litigation, because the individuals and their market were sued as agents of each other, clearly united in interest and sued on a theory of joint and several liability.
Plaintiff’s second reason for invalidity of the settlement offer is that the offer required that all liens existing in May 2012 be satisfied from the offer. Plaintiff argued “there is no way to know what if any potential liens may arise, so the offer is ambiguous and not capable of being valued. The lien from the VA was itself in excess of $400,000 and impossible to satisfy from the offered amount.”
However, the Court of Appeal found that the offer was not ambiguous; it said nothing about “potential liens” but rather specified “existing liens.” Plaintiff failed to show the $400,000 lien was attributable to the subject accident. The Court further found that an offer designating that plaintiff is responsible for all medical liens is valid and comports with Section 998 is nothing more than a reminder of the plaintiff’s obligation to pay the medical liens. Accordingly, the Court of Appeal affirmed the judgment and the awarding section 998 costs.
The Plaintiff’s attorney filed a petition for rehearing which was denied.
While the instant appeal was unpublished, Jim has three published appellate decisions. He is also a member of ABOTA which requires, among other requirements, at least 10 jury trials to verdict for membership.