Soon Kim, Respondent V. Lindsay Roger, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SOON KIM,
Respondent,
v.
LINDSAY ROGER,
Appellant.
No. 68257-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: March 11, 2013
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Grosse, J. — A party who 	requests a trial de novo after a mandatory
arbitration is only required to pay attorney fees if that party fails to improve its
position. 	In determining whether or not a party has improved its position, the trial
court compares 	the 	jury's 	verdict 	to the 	arbitrator's 	award 	or, 	as 	here, 	the
nonappealing party's offer of compromise before the trial de novo. 	Costs are
neither added to the verdict nor subtracted from the offer of compromise. 	At the
trial de novo, the plaintiff recovered less than the amount she offered in the offer
of compromise. Accordingly, we reverse the trial court's award of attorney fees.
Soon Kim sued Lindsay Roger for injuries sustained in a rear-end collision
that 	occurred 	in September 2008. 	The 	matter was 	moved to 	mandatory
arbitration 	where 	an 	arbitrator 	awarded 	$25,579.04 	to 	Kim. 	Roger 	timely
requested a trial de novo pursuant to Mandatory Arbitration Rule (MAR) 7.1. On
October 21, 2010, Kim made an offer of compromise to Roger for $16,500.00,
inclusive of attorney fees and costs.1 	Roger did not accept the offer and the
1 Where an offer of compromise is not accepted by the appealing party, the
amount of the offer of compromise replaces the amount of the arbitrator's award
for determining whether the appealing party has failed to improve that party's
position on the trial de novo. RCW 7.06.050.

No. 68257-1-1/2
matter 	proceeded 	to 	a 	jury trial. 	The jury issued 	a 	verdict 	awarding 	Kim
$14,761.00, less than the offer of compromise. 	The court then awarded costs to
Kim pursuant to RCW 4.84.010 and CR 54(d) in the amount of $2,335.39. 	When
the costs were added to the jury verdict, the total amount ($17,096.39) was larger
than the offer of compromise. 	The trial court therefore awarded Kim attorney
fees because Roger had failed to improve her position at the trial de novo under
MAR 7.3 and RCW 7.06.060. 	Roger appeals.
The mandatory arbitration rules specify that a party who seeks a trial de
novo and fails to improve his or her position must pay the other party's attorney
fees.2 	In awarding Kim attorney fees pursuant to RCW 7.06.060 and MAR 7.3,
the trial court relied upon the reasoning found in the Court of Appeals decision in
Niccum 	v. 	Enquist. 	in which the 	plaintiff made 	a 	similarly worded 	offer of
compromise.3 	Niccum's offer of compromise was $17,350.00, but the jury verdict
awarded only $16,650.004 Nevertheless, the Court of Appeals awarded attorney
fees to Niccum, holding that court costs awarded to a prevailing party at trial
would first be subtracted from the offer of compromise before comparing the offer
of compromise and the verdict.5 	But the Supreme Court reversed the Court of
Appeals and held that, under a plain reading of the statute, it is "improper to
subtract costs from an offer of compromise."6 	Thus, there is no right under the
statute to include costs whether it is by subtracting them from 	the offer of
2 MAR 7.3.
3 Niccum v. Enauist. 152 Wn. App. 496, 215 P.3d 987 (2009).
4 Niccum. 152 Wn. App. at 498.
5 Niccum. 152 Wn. App. at 500-01.
6 Niccum v. Enquist. 175 Wn.2d 441, 448, 286 P.3d 966 (2012).

No. 68257-1-1/3
compromise or by adding them, as here, to the verdict. 	Had the trial court had
the benefit of the Supreme Court decision it would not have awarded attorney
fees to Kim as the prevailing party after a trial de novo. 	Here, Roger improved
her position at the trial de novo. 	Under Niccum. Kim is not entitled to attorney
fees. 	The award of attorney fees is reversed. 	Kim is, however, still entitled to
fees under chapter 4.84 RCW.7
WE CONCUR:
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7 "If the prevailing party in the arbitration also prevails at the trial de novo, even
though at the trial de novo the appealing party may have improved his or her
position from the arbitration, this section does not preclude the prevailing party
from recovering those costs and disbursements otherwise allowed under chapter
4.84 RCW, for both actions." RCW 7.06.060(3).