In Croft, the defendant made the following offer of judgment:
Pursuant to the provisions of Rule 68 of the West Virginia Rules of Civil Procedure (2006), the defendants, TBR, Inc., d/b/a TJ’s Sports Garden and Restaurant, and Tashe Jovanni Radevski, and Shane Kulpa, hereby allow judgment to be taken against them by the plaintiff, [Plaintiff’s Name], for full satisfaction and dismissal of all claims which have been and/or could have been asserted by plaintiff and any other person or entity in this civil action, including any subrogation claims/liens had by any person or entity for payments made to or on behalf of plaintiff, in the total amount of Thirteen Thousand Dollars and No Cents ($13,000.00), to be paid on defendants’ behalf by Erie Insurance Property and Casualty Company.So, what's wrong with that, you might ask? It doesn't explicitly address attorney fees.
This offer of judgment is made for the purposes specified in Rule 68 and is not to be construed either as an admission that the defendants are liable in this action, or that plaintiff has sustained any damages. According to Rule 68(c), if this offer is not accepted within ten days after the service of the offer, it shall be deemed withdrawn. Should plaintiff not accept defendants’ offer herein within the expiration of the ten day period, and should the judgment finally obtained by plaintiff against defendants not exceed Thirteen Thousand Dollars and No Cents ($13,000.00), defendants will, pursuant to Rule 68(c), seek an Order from the Court requiring plaintiff to pay all costs incurred in the defense of this case subsequent to the date of this offer.
The Plaintiffs in this case accepted the offer of judgment, then promptly filed a motion for attorney fees and costs in circuit court. The circuit court denied the motion on the basis that the language in the offers of judgment specifically referring to “[a]ll claims that have been or could be asserted,” is broad enough to include attorney’s fees and costs.
On appeal, the Supreme Court reversed. It referred back to footnote 8 of its opinion in Shafer v. Kings Tire Service, Inc., 215 W.Va. 169, 597 S.E.2d 302(2004) in which it noted that "unless the [Rule 68] offer [of judgment] explicitly includes attorney's fees, the courts construe the offer to be silent as to attorney's fees if fees are not explicitly included, thereby necessitating an attorney's fee award beyond the sum included in the offer."
A trap for the unwary.
The Court remanded the case for the imposition of attorney's fees and costs.
Thus, if you are a defendant, make darn certain your offer of judgment under Rule 68(a) explicitly provides that the amount of the offer is inclusive of costs and attorney fees.