* Pr Of The Estate Of Robert E. Carpine, App./cross-resp. V. Christa Mckillop, Resp./cross-app.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTA MCKILLOP, an individual,
Respondent,
v.
PERSONAL REPRESENTATIVE OF
THE ESTATE OF ROBERT E.
CARPINE, a deceased individual,
Appellant.
No. 73134-3-1
DIVISION ONE
PUBLISHED OPINION
FILED: 	February 8, 2016 i
CD
Leach, J. — In a damage action where the amount pleaded is $10,000 8?
less, a party seeking relief is considered to be the prevailing party when her
recovery equals or exceeds the amount she offered in settlement. 	The party
resisting relief prevails ifthe party seeking relief recovers nothing or less than the
resisting party offered in settlement. 	Here, each party claims to have prevailed,
entitling it to a fee award. We conclude that neither party has shown it prevailed.
Christa McKillop offered to accept $15,392 to settle her personal injury
claim, segregated $2,400 to general damages, $2,600 to special damages, and
$10,392 to attorney fees and 	costs. 	A jury awarded 	her $8,500. 	Because
McKillop's total settlement offer exceeds the amount the jury awarded, the trial
court erred in awarding her attorney fees.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 73134-3-1/2
The Estate of Robert E. Carpine (Estate) made a CR 68 offer of $10,000,
more than McKillop's jury award. On appeal, it contends that it prevailed, entitling
it to fees. 	Because the 	Estate 	made a 	CR 	68 	offer 	of judgment, 	its offer
necessarily included McKillop's accrued costs. 	Because the Estate makes no
claim that its offer exceeded the jury award plus costs accrued at the time of its
offer, the Estate fails to show that it prevailed. Thus, its claim for fees fails.
FACTS
Christa McKillop sued the Estate for injuries and damages sustained in a
car accident. 	McKillop filed a statement of arbitrability. 	Before the arbitration
hearing, McKillop served the Estate with a statement of damages, requesting a
total of $10,000. 	McKillop then made a settlement offer under RCW 4.84.250,
agreeing to accept a total of $15,392, segregated $2,400 to general damages,
$2,600 to special damages, and $10,392 to attorney fees and costs.
Pursuant to CR 68, the Estate offered to settle for $10,000, "inclusive of all
claims for damages and all costs and attorneys' fees incurred." 	The parties did
not settle.
The arbitrator awarded 	McKillop $5,272.06, comprised of $2,772.06 in
economic damages and $2,500.00 in noneconomic damages. 	The arbitrator
denied both parties' requests for attorney fees.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 73134-3-1/3
Unsatisfied with her arbitration result, McKillop asked for a trial de novo
under MAR 7.1.
A superior court jury returned a verdict of $8,500.00, awarding $2,772.06
for economic damages and $5,727.94 for noneconomic damages. 	McKillop then
requested $94,624.85 in costs and attorney fees under RCW 4.84.250. 	She
claimed to be the prevailing party because the jury verdict of $8,500.00 exceeded
the $5,000.00 part of her $15,392.00 settlement offer allocated to her underlying
damage claim.
The Estate responded with its own motion for attorney fees and costs
under RCW 4.84.290. 	The 	Estate claimed it prevailed 	because its $10,000
settlement offer exceeded the jury's verdict of $8,500.
The trial court entered judgment in favor of McKillop in the 	amount of
$8,500.00 plus attorney fees and costs in the reduced amount of $65,000.00.
The Estate has appealed the trial court's decision on fees and costs. 	McKillop
has cross appealed the trial court's decision to reduce her requested attorney
fees.1
1 The Estate moved this court to strike portions of McKillop's reply brief
because it included arguments made in response to the Estate's direct appeal
rather than the Estate's response to McKillop's cross appeal. 	Because we do not
consider any matters improperly raised by the parties, we deny the motion.
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NO. 73134-3-1/4
ANALYSIS
Usually, litigants must pay for their own legal expenses.2 	However, RCW
4.84.250 through .290 authorizes a trial court to award attorney fees to the
prevailing 	party in 	damage actions where, 	as 	here, 	the party seeking 	relief
requests $10,000 or less.3 	The plaintiff is the "prevailing 	party" when 	her
recovery, exclusive of costs, "is as much as or more than the amount offered in
settlement by the plaintiff."4 	The defendant is considered the "prevailing party"
for purposes of RCW 4.84.250 if the plaintiff recovers nothing or a sum not
exceeding that offered bythe defendant in settlement.5
RCW 	4.84.250 	through 	.290 	encourages 	out-of-court 	settlements,
penalizes parties who 	unjustifiably 	bring 	or resist small 	claims, 	and enables
2 Cosmo. Enq'a Grp.. Inc. v. Ondeo Dearemont, Inc., 159 Wn.2d 292, 296,
149 P.3d 666 (2006).
3 RCW 4.84.250 states,
[l]n any action for damages where the amount pleaded by the
prevailing party as hereinafter defined, exclusive of costs is [ten
thousand dollars] or less, there shall be taxed and allowed to the
prevailing party as a part of the costs of the action a reasonable
amount to be fixed by the court as attorneys' fees.
4 RCW 4.84.260.
5 RCW 4.84.270 provides,
The 	defendant, 	or party resisting 	relief, 	shall 	be 	deemed 	the
prevailing 	party 	within 	the meaning 	of RCW 4.84.250, if the
plaintiff, or party seeking relief in an action for damages where the
amount pleaded, exclusive of costs, is equal to or less than the
maximum allowed under RCW 4.84.250, recovers nothing, or if
the recovery, exclusive of costs, is the same or less than the
amount 	offered 	in settlement 	by 	the 	defendant, 	or 	the 	party
resisting relief, as set forth in RCW 4.84.280.
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NO. 73134-3-1/5
parties to pursue meritorious small claims without seeing the award swallowed
up by the expense of paying an attorney.6
McKillop and the Estate each claim to be the prevailing party for the same
reasons each asserted in the trial court.
McKillop also contends that the Estate cannot challenge her fee recovery
on appeal because it failed to contest her motion for attorney fees below. 	But the
Estate filed a motion claiming that it prevailed and should be awarded fees. 	In
the context of this case, only one party could be the prevailing party as defined in
the 	applicable 	statutes. 	By claiming 	to 	be 	the 	prevailing 	party, 	the 	Estate
necessarily denied that McKillop was.
This court reviews de novo a trial court's decision that a statute authorizes
an award of attorney fees.7
Plaintiff McKillop's Offer To Settle
Pursuant to RCW 4.84.250, McKillop offered to settle her claims for a total
of $15,392.00. 	Her offer stated,
Pursuant 	to 	RCW 	4.84.250, 	et 	seq[.], 	Plaintiff 	Christa
McKillop offers to settle her claims against Defendant Personal
Representative of the Estate of Robert E. Carpine for the following
amounts:
1. General Damages (pain, suffering, inconvenience) $2,400.00
6 Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 788, 733 P.2d 960
(1987).
7 Niccum v. Enquist, 175 Wn.2d 441, 446, 286 P.3d 966 (2012).
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NO. 73134-3-1/6
2. 	Special Damages (medical expenses and loss of earnings)
$2,600.00
3. Attorney's Fees and Costs (as of the date of this notice)
$10,392.00
TOTAL SETTLEMENT OFFER 	$15,392.00
If the offer is not accepted, Plaintiff will seek an award of
reasonable attorney's fees and costs pursuant to RCW 4.84.250
and RCW 4.84.260 if she prevails at the arbitration.
McKillop contends that we should decide if she was the prevailing 	party by
comparing 	the 	amount 	her offer allocated to 	general 	and 	special 	damages,
$5,000, with the amount the jury awarded for those claims, $8,500.8 	Because
the amount the jury awarded for these claims exceeded the amount McKillop
allocated to them, 	she claims that she 	recovered 	more than 	she offered 	in
settlement, entitling her to recover attorney fees.
But 	our 	Supreme 	Court 	rejected 	a 	similar 	approach 	in 	analogous
circumstances in Niccum v. Enquist.9 	There, 	after obtaining an 	unfavorable
arbitration 	award 	of 	$24,496, 	defendant 	Enquist 	requested 	a 	trial 	de 	novo.
Before trial, plaintiff Niccum offered to settle the case for $17,350 "including costs
and statutorv attorney fees."10 	This amount replaced the arbitration award for
purposes of applying RCW 7.06.060(1). 	This statute requires that the superior
8 In response to questions at oral argument, McKillop stated that had the
Estate tendered $5,000 in response to her total settlement offer, she would not
have accepted that amount as settlement.
9 175 Wn.2d 441, 286 P.3d 966 (2012).
10 Niccum. 175 Wn. 2d at 444.
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NO. 73134-3-1/7
court assess costs and reasonable attorney fees against a party who asks for a
trial de novo and does not improve his or her position at trial.
Enquist 	rejected 	Niccum's 	offer 	to 	settle. 	The jury 	awarded 	Niccum
$16,650.00 in damages.11 	The trial court awarded 	Niccum statutory costs of
$1,016.28.12 	Niccum's offer of compromise included costs and statutory attorney
fees. 	Therefore, Niccum contended that the trial court had to subtract $1,016.28
in 	costs 	from 	his 	$17,350.00 	offer 	of 	settlement 	and 	compare 	the 	result,
$16,333.72, 	with the jury verdict of $16,650.00 to determine 	if Enquist had
improved 	his 	position 	at 	trial.13 	The 	trial 	court 	agreed 	and 	reduced 	the
compromise 	amount 	by 	the 	costs 	it awarded. 	Niccum's 	recovery 	at 	trial
exceeded this reduced amount.14 	This meant that Enquist had not improved his
position at trial and was liable for attorney fees and costs. 	The trial court then
awarded attorney fees and costs to Niccum under RCW 7.06.060(1 ).15 	Division
Three affirmed.16
Our Supreme Court reversed. 	It described the issue before it as whether
a trial court should subtract costs from an offer of compromise that states it
11 Niccum, 175 Wn.2d at 444.
12 Niccum, 175 Wn.2d at 444-45.
13 Niccum. 175 Wn.2d at 445.
14 Niccum. 175 Wn.2d at 445.
15 Niccum. 175 Wn.2d at 445.
16 Niccum v. Enquist. 152 Wn. App. 496, 501-02, 215 P.3d 987 (2009).
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NO. 73134-3-1/8
includes them before comparing that offer with a jury's award.17 It held that costs
should not be subtracted before the court makes the comparison. 	Instead, the
trial court should compare the total amount of the offer of compromise with the
jury award.
The Supreme Court noted that Niccum was not entitled to costs at the
time of his offer, only upon entry of judgment.18 	It further noted the absence of
any statutory authority for segregating an offer of compromise into separate
amounts corresponding to damages and costs.19 In the absence of this statutory
authority, a court may not reduce an offer of compromise by costs purportedly
included and then rely on the reduced amount as a basis for awarding fees and
costs against the party who rejected the offer.20 	Despite the segregation, the trial
court had to treat the offer of compromise as a lump sum offer.
Similarly, 	McKillop 	has 	not 	identified 	any 	statutory 	authority 	for
segregating 	her 	settlement 	offer 	into 	separate 	amounts 	corresponding 	to
damages and costs. 	She had no entitlement to costs at the time of her offer. 	As
in Niccum. in the absence of this statutory authority and entitlement to costs, the
trial court had "no basis for giving effect to the inclusion of costs in the offer."21
17 Niccum. 175 Wn.2d at 446.
18 Niccum. 175 Wn.2d at 449.
19 Niccum. 175 Wn.2d at 450.
20 Niccum. 175 Wn.2d at 451.
21 Niccum. 175Wn.2dat451.
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NO. 73134-3-1/9
McKillop offered to settle for $15,392. 	The trial court had no basis for reducing
this amount before comparing it to the jury award. 	Because the settlement offer
exceeded the jury verdict, McKillop is not entitled to fees under RCW 4.84.260.
The trial court erred in awarding those fees.
The Estate's CR 68 Offer of Judgment
The 	Estate 	made 	a 	CR 	68 	offer of judgment for 	$10,000, 	including
attorney fees and costs. 	The Estate contends that it is entitled to attorney fees
because McKillop recovered less than $10,000. 	McKillop responds that a CR 68
offer of judgment cannot 	be 	made 	in an 	offer of compromise to 	settle an
arbitration case.22 	Because of our resolution of the Estate's claim, we do not
decide this issue or if an offer called a CR 68 "Offer of Judgment" qualifies as a
settlement offer under RCW 4.84.250.
CR 68 provides in pertinent part:
At any time more than 10 days before the trial begins, a
party defending against a claim may serve upon the adverse party
an offer to allow judgment to be taken against [him] with costs then
accrued. ... If [the offer is not accepted and] the judgment finally
obtained by the offeree is not more favorable than the offer, the
offeree must pay the costs incurred after the making of the offer.
22 See Tippie v. Delisle. 55 Wn. App. 417, 420-21, 777 P.2d 1080 (1999),
where the court held that a party who rejects a CR 68 offer and then obtains less
than 	the 	offer at trial 	cannot 	be 	considered 	a 	prevailing 	party 	under RCW
4.84.030.
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NO. 73134-3-1/10
(Emphasis added.) 	Thus, the Estate's CR 68 offer of judgment included costs
accrued by McKillop at the time of the offer. 	Unlike RCW 4.84.250, the text of
the rule provides a basis for a trial court to add accrued costs to a jury award for
purposes of comparing the offer of judgment with the judgment finally obtained.
RCW 4.84.250 defines reasonable attorney fees recoverable under it as
costs. 	The Estate makes no claim that its offer is more favorable than the sum of
McKillop's jury award and costs, including reasonable attorney fees, accrued at
the time of its offer. 	As a result, the Estate's claim for attorney fees and costs
fails.
Because McKillop is not the prevailing party, her cross appeal requesting
additional attorney fees necessarily fails. 	Both parties request attorney fees on
appeal under RCW 4.84.250. 	Because neither party prevails, neither is entitled
to attorney fees or costs on appeal.
Conclusion
Because 	the 	total 	amount 	of 	McKillop's 	segregated 	settlement 	offer
exceeds the amount the jury awarded, 	the trial court erred 	in awarding 	her
attorney fees. 	We reverse the trial court's award of attorney fees to McKillop.
Because the Estate does not show that the value of its offer of judgment
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NO. 73134-3-1/11
exceeded the sum of McKillop's jury award and accrued cost, we deny its claim
for attorney fees.
WE CONCUR:
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