Moffett v. Barclay

Opinion

HANING, J.

Defendant/appellant Michelle Jane Barclay appeals from that portion of a judgment awarding plaintiff/respondent Russell Moffett prejudgment interest and expert witness costs pursuant to Code of Civil Procedure section 998.

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She contends respondent is not permitted to recover prejudgment interest and costs because he did not serve her personally with an offer to compromise (§ 998) when she was a party to the action.

Facts

On July 24, 1992, respondent

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filed an action against appellant and Does I-X for injuries sustained when the cars they were each driving collided. On August 10, 1992, respondent served an offer to compromise the action for

[982]

$25,000 on Ada Lau at State Farm Mutual Automobile Insurance Company.

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The offer, which was addressed to “defendants and their attorneys of record,” stated that if it was not accepted within 30 days from the date of service, respondent would also claim prejudgment interest from the date of filing the offer. On August 27, 1992, respondent served the complaint and summons on appellant at her work address. Respondent never received a response to his offer to compromise. On September 28, 1992, appellant answered the complaint, generally and specifically denying all allegations.

In December 1993 the action was tried and resulted in a damage award of $32,400. In addition to awarding respondent damages in the amount of $32,400 and postjudgment interest from January 5, 1994, at a rate of 10 percent per annum, the judgment also awards respondent expert witness costs, and prejudgment interest from August 10, 1992, in reliance on the section 998 offer to compromise.

Appellant moved for an order denying prejudgment interest and costs on the grounds the offer to compromise was invalid because (a) it was served before she was served with summons and complaint, and (b) it was not served on her. The court denied appellant’s motion, concluding (1) the insurance company, until it obtained an attorney for appellant, was her agent once a lawsuit was filed, (2) there was no one other than the insurance company with whom respondent could have corresponded, and (3) appellant could not compromise the action without the authority of her insurer.