Plaintiff filed this personal injury action alleging that defendants were negligent when she collided with their semi-trailer while riding her bicycle, causing a traumatic brain injury. Plaintiff served four pretrial settlement offers pursuant to Code of Civil Procedure section 998, none of which defendants accepted. The first three offers were for $1 million, and the last one was for $2 million. After a bench trial, the trial court awarded plaintiff slightly more than $1 million in damages, finding that she did not suffer a traumatic brain injury and that she was partially at fault for the accident. Plaintiff filed a memorandum of costs seeking prejudgment interest and expert witness costs based on her earlier $1 million section 998 offers. The trial court granted the defense’s motion to tax costs in significant part, and plaintiff appealed.
Horvitz & Levy was retained to handle the appeal and convinced the Court of Appeal to affirm. The court held that plaintiff could not recover her expert costs or prejudgment interest because her recovery did not exceed her final pretrial section 998 offer. In doing so, the court applied the common law “last offer rule,” which applies when a party makes successive 998 offers and fails to obtain a judgment or award more favorable than the final offer. In that situation, only the party’s last section 998 offer is considered for purposes of determining that party’s entitlement to enhanced costs, including prejudgment interest and expert witness fees. The court rejected plaintiff’s argument that a different rule (the “first offer rule”) should govern the recovery of prejudgment interest based on language contained in Civil Code section 3291.
Meehan v. Aguirre B343396 
