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Dillard Department Stores12/13/1999
They reward a party who makes a reasonable offer and punish the party who refuses to accept such an offer. Muije v. A North Las Vegas Cab Co., 106 Nev. 664, 667, 799 P.2d 559, 561 (1990).
"It is within the discretion of the trial court judge to allow attorney's fees pursuant to Rule 68" and " nless the trial court's exercise of discretion is arbitrary or capricious, this court will not disturb the lower court's ruling on appeal." Schouweiler v. Yancey Co., 101 Nev. 827, 833, 712 P.2d 786, 790 (1985).
Dillard claims it litigated its defense in good faith and it was not bad faith for it to reject Beckwith's offer. We have set forth the factors a trial judge must exercise in its discretion regarding the allowance of attorney's fees:
"(1) whether the plaintiff's claim was brought in good faith; (2) whether the defendant's offer of judgment was reasonable and in good faith in both its timing and amount; (3) whether the plaintiff's decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether the fees sought by the offeror are reasonable and justified in amount." Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983).
The trial judge, in a separate hearing, found it was unreasonable to reject such a "rock-bottom" offer given at the beginning of the case before any discovery expense had been incurred. The trial court considered the quality of the representation at trial, the reputation of the lawyers, their hourly rate of billing, the timing and reasonableness of the offer and all of the necessary factors set forth in Beattie. The trial judge deducted from the total amount of attorney's fees sought the amount Dillard had previously paid as sanctions for discovery abuses. There was no abuse of discretion on the part of the trial judge, the award of attorney's fees was proper and it is affirmed.
The judgment on the jury verdict for compensatory and punitive damages is affirmed.
MAUPIN, J., concurring:
I agree with the result reached by the majority. I write separately to note my disagreement with the majority's affirmation of the instruction containing the language from NRS 616C.530. That provision sets priorities for workers' compensation insurers in their efforts to return injured workers to work. The priorities articulated do not create a legal standard governing an employer's re-assimilation of an injured worker to the work place. I can see no legislative intent to that effect. Thus, the instruction was couched in terms of a specific duty that did not apply to employers. However, because the statutory language did not add a great deal to the standard of recovery that respondent was required to satisfy below, the giving of the statutory instruction was harmless error.
I also wish to emphasize in this separate opinion my view that the enactment of NRS 616D.030 was in no way calculated to overturn our decision in Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984), and its progeny.
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