Niccum v. Enquist

152 Wash. App. 496
CourtCourt of Appeals of Washington
DecidedSeptember 1, 2009
DocketNo. 27504-3-III
StatusPublished
Cited by5 cases

This text of 152 Wash. App. 496 (Niccum v. Enquist) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Niccum v. Enquist, 152 Wash. App. 496 (Wash. Ct. App. 2009).

Opinion

Kulik, J.

¶1 The question presented here is whether the trial court erred by subtracting costs and attorney fees from an offer of compromise made after an arbitration award when determining an award of attorney fees under MAR 7.3 following a trial de novo. We conclude the trial court properly subtracted costs and fees before comparing the offer of compromise and the verdict. Thus, we affirm the trial court.

FACTS

¶2 Jeffery Niccum filed suit against Ryan Enquist to recover for injuries sustained in an automobile accident. At [498]*498mandatory arbitration, the arbitrator awarded the plaintiff, Mr. Niccum, $24,496 — this included $6,896 for medical bills, $7,600 for wage loss, and $10,000 for pain and suffering.

¶3 The defendant, Mr. Enquist, requested a trial de novo. Mr. Niccum presented Mr. Enquist with the first offer of compromise. The first offer stated:

COMES NOW Plaintiff, by and through his attorney, JERRY T. DYRESON, and pursuant to RCW 7.06.050 does hereby offer to compromise his claim in the amount of $22,000.00. Such compromise is intended to replace the arbitrator’s award of $24,496.00 with an award of $22,000.00.

Clerk’s Papers (CP) at 11. Mr. Enquist did not accept this offer.

¶4 On July 8, Mr. Niccum presented Mr. Enquist with a second offer of compromise. The second offer stated:

COMES NOW Plaintiff, by and through his attorney, JERRY T. DYRESON, and pursuant to RCW 7.06.050 does hereby offer to compromise his claim in the amount of $17,350.00. Such compromise is intended to replace the arbitrator’s award of $24,496.00 and replace the previous offer of compromise, with an award of $17,350.00 including costs and statutory attorney fees.

CP at 12 (emphasis added). Mr. Enquist did not accept this offer.

¶5 The case proceeded to a jury trial. The jury returned a verdict of $16,650 in favor of Mr. Niccum. The jury verdict stated:

We, the jury, find for the Plaintiff in the following sums:
(1) for past medical expenses $6,650.00
(2) for past lost wages $0
(3) for past noneconomic damages $10,000

CP at 6.

¶6 Mr. Niccum sought fees under MAR 7.3, arguing that Mr. Enquist had failed to improve his position at trial. Mr. Niccum sought $15,640.00 in attorney fees and $1,016.28 in [499]*499costs. Mr. Niccum also sought $1,461.00 in fees for the testimony of his expert witnesses.

¶7 The trial court determined that Mr. Enquist had not improved his position at trial. To make this determination, the court subtracted $1,061.28 in costs allowable under chapter 4.84 RCW from the second offer of $17,350.00 for a total of $16,288.72.1 This amount was then compared to the $16,650.00 jury award to determine that Mr. Enquist had not improved his position at trial. Applying MAR 7.3, the court awarded Mr. Niccum $15,640.00 in reasonable attorney fees and $1,461.00 in expert witness fees incurred after arbitration. Mr. Enquist appeals.

ANALYSIS

¶8 Fees and Costs Under MAR 7.3. We review the application of a statute or a court rule de novo. Basin Paving Co. v. Contractors Bonding & Ins. Co., 123 Wn. App. 410, 414, 98 P.3d 109 (2004); Mee Soon Kim v. Pham, 95 Wn. App. 439, 441, 975 P.2d 544 (1999). Here, we consider MAR 7.3 and the mandatory arbitration statute, RCW 7.06.050.

¶9 Mr. Enquist asserts that the court erred by subtracting $1,016.28 in statutory costs to obtain a figure purportedly comparable to the amount of damages in the second offer of compromise. According to Mr. Enquist’s calculations, $17,350.00, the entire amount of the second offer, replaced the first offer, which replaced the arbitrator’s award. Thus, Mr. Enquist argues that he improved his position at trial by obtaining a lesser amount of $16,650.00; therefore, Mr. Niccum was not entitled to attorney fees under MAR 7.3.

¶10 In contrast, Mr. Niccum argues that the court is required to “compare comparables” under MAR 7.3, so the court properly reduced the amount of the second offer of compromise by the amount of the statutory fees.

[500]*500¶11 RCW 7.06.050(1) reads in part as follows:

(a) Up to thirty days prior to the actual date of a trial de novo, a nonappealing party may serve upon the appealing party a written offer of compromise.
(b) In any case in which an offer of compromise is not accepted by the appealing party within ten calendar days after service thereof, for purposes of MAR 7.3, the amount of the offer of compromise shall replace the amount of the arbitrator’s award for determining whether the party appealing the arbitrator’s award has failed to improve that party’s position on the trial de novo.

(Emphasis added.)

¶12 MAR 7.3 provides in part:

The court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party’s position on the trial de novo.

¶13 A court’s objective in construing a statute is to determine the intent of the legislature. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). To determine legislative intent, we look to the plain meaning of the applicable statute, which is derived from the language of the statute. State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002). “ [I] f the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).

¶14 According to Mr. Enquist, RCW 7.06.050(1)(b) should be read so that the entire amount of the second offer replaces the first offer which replaced the arbitrator’s award, even though the second offer states that it includes costs and statutory attorney fees. Mr. Niccum points out that a provision in the second offer states that the new offer will “replace the previous offer of compromise, with an award of $17,350.00 including costs and statutory attorney fees.” CP at 12.

¶15 We conclude that RCW 7.06.050(1)(b) should be read so that any segregated amount of an offer must replace an

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Bluebook (online)
152 Wash. App. 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/niccum-v-enquist-washctapp-2009.