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This matter arose out of a petition for writ of mandamus or prohibition made by the petitioner Amelia Nava. Ms. Nava was a defendant in a civil lawsuit which arose out of an automobile accident where she, allegedly under the influence of alcohol, rear-ended another vehicle resulting in personal injuries. Litigation thereafter ensued. During the course of that litigation, defendant’s counsel served Nava with an offer of judgment in the amount of $100,000.00. Under both NRCP 68 and NRS 17.115, Nevada’s offer of judgment rule and statute respectively, Nava had ten days to accept the offer after service upon her of it. If she failed to accept the offer within the ten days, the offer was deemed automatically withdrawn, the trier of fact would not be advised of it and the legal effect of rejection would only become relevant if she would not have bettered herself at time of trial, ie obtaining a jury verdict for less than the amount of the offer. If she failed to do so, she would have exposure for the plaintiff’s attorneys fees and costs incurred from the date of the rejection of the offer. Five days after serving the offer, and prior to Nava’s acceptance of the offer, the plaintiff served Nava with a notice withdrawing the offer. During those five days, plaintiff’s counsel had learned that plaintiff elected to have back surgery which counsel believed would increase plaintiff’s damages to an amount significantly higher than the amount of the offer of judgment. Nava ignored the notice of withdrawal and accepted the offer within the original ten day acceptance period. The lower court held that the offer of judgment was revocable within the ten day acceptance period, found Nava’s acceptance void since it occurred after the offer was revoked and refused to enter judgment based upon Nava’s acceptance. Nava then petitioned the Supreme Court by writ to compel performance of the lower court to enter judgment in accordance with her acceptance of the offer of judgment. In siding with Nava and in holding that an offer of judgment, once made under either the statute or the rule is irrevocable until it expires, the court noted that neither the rule nor the statute contained any provision for withdrawal of an offer before ten days have expired. The Court also cited the public policy behind offers of judgment which the Court concluded supported its position that an offer should be irrevocable during the ten day acceptance period because it is designed to give the offeree the time to carefully consider the likely value of pursuing a claim in light of an offer of judgment. The Court stated that an offeree should not be rushed into a hasty decision once an offer is made, considering the potential serious consequences of a failure to accept an offer. The Court reasoned that the offeree should be given the entire benefit at the time under the rule of statute to consider whether or not to accept the submitted offer. The Court also noted, in a footnote and as an aside, that the offerer’s remedy in the case could be to file an NRCP 60(b) motion to set aside the judgment. The lower court, under such motion, could relieve a party from final judgment order or proceeding for mistake, inadvertence, surprise or excusable neglect. The Supreme Court noted that such a remedy would still be available to the offerer if such grounds existed based upon change of circumstance of the plaintiff’s condition between the time of the offer and the attempted withdrawal.
As a practice pointer, this
ruling from the court sends a signal to practitioners that damages in a
case should be fully understood before making an offer of judgment.
Although the Supreme Court notes that a 60(b) motion to set aside would
be available, it is highly unlikely that a Court would set it aside
solely based upon a parties change of circumstances, when, as in the
present case, those change of circumstances included the potentiality
for surgery which everyone knew or should have known existed at the time
the offer was made. Offers of judgment are great litigation tools, but
only if used prudently. |
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