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Gamez v. Brush Wellman9/27/2001
efits of their agreement. '" Nelson v. Phoenix Resort Corp. , 181 Ariz. 188, 197, 888 P. 2d 1375, 1384 (App. 1994), quoting Wagenseller v. Scottsdale Mem'l Hosp. , 147 Ar iz. 370, 383, 710 P. 2d 1025, 1038 (1985). As we have already explained, Rudy's interests in the pre-1992 plan did not vest, so Brush Wellman was not prohibited from modifying its CBD benefits package. Moreover, because the Gamezes' bad faith claim relates to Brush Wellman's imposition of an ERISA benefits plan, it is also pr eempted. See Tingey; cf. DeVoll v. Burdick Painting, Inc., 35 F.3d 408 (9th Cir. 1994) (breach of promise claim relating to ERISA-qualified employee benefits claim preempted); Ellenburg, 763 F .2d at 1095 ("ERISA preempts common law theories of breach of contract implied in fact, promissory estoppel, estoppel by conduct, fr aud and deceit, and breach of contract. "). The trial court's grant of summary judgment on this count, therefore, was appropriate.
Finally, the Gamezes contend that the trial court erred in imposing sanctions because Brush Wellman's offer was " n unapportioned joint offer that encompasse multiple parties claims[, and as such, was] insufficient to support an award of Rule 68 sanctions." Although Rule 68(d) provides that "the offeree must pay, as a sanction," the offeror's costs when "the judgment finally obtained is equal to, or more favorable to the offeror than . . . the offer," this rule does not apply when an offeror fails to apportion a joint offer of judgment. Duke v. Cochise County, 189 Ar iz. 35, 938 P. 2d 84 (App. 1996).
Brush Wellman made an offer of judgment in the amount of $50,000 plus $25, 000 attorney's fees before summary judgment was entered, an offer the Gamezes rejected. Brush Wellman argues that the trial court properly imposed sanctions against the Gamezes because it granted summary judgment for Brush Wellman on all claims and, pointing to Sheppard v. Crow-Barker-Paul No. 1 Ltd. Partnership, 192 Ar iz. 539, 968 P. 2d 612 (App. 1998), that its offer did not need to be apportioned between the parties and their claims due to the "derivative and joint nature of Alice Gamez' claim."
In Sheppard, the tr ial court properly imposed Rule 68(d) sanctions on a defendant for failing to accept a single offer of judgment even though the offer represented a minor son's personal injury claim and his father's claim for the expenses he had incurred in securing medical treatment for his son. In upholding the award of sanctions, this court reasoned that Duke was inapplicable because the father's and the son's claims "are ordinarily two aspects of an individual personal injury claim, . . . and were divided solely due to [the son's] minority. " Id. at . Because Sheppard does not apply here, we follow Duke and vacate the award of sanctions.
Affirmed in part; vacated in part.
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
JOHN PELANDER, Judge
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