McLellan v. Weiss.
2024 COA 114. No. 23CA1813. Award of Actual Costs and Fees After Offer of Settlement—Subsequent Statutory Offers.
October 17, 2024
McLellan sued Weiss for damages she suffered resulting from an accident that Weiss caused. Weiss made two pretrial written offers of settlement pursuant to CRS § 13-17-202, but McLellan rejected both offers. A jury awarded McLellan economic damages. McLellan’s final judgment, including prejudgment interest and costs accrued through the date of the first offer, was less than that offer. But the final judgment exceeded the second statutory offer. The district court concluded that, because McLellan’s final judgment did not exceed the first offer, Weiss was entitled to recover his costs accrued after the date of that offer through trial. It also determined that McLellan, as the prevailing party, was entitled to recover her actual costs accrued before the date of the first offer.
On appeal, McLellan contended that the district court erred by allowing Weiss to recover all costs he accrued after his first statutory offer of settlement because the subsequent statutory offer of settlement either extinguished the first offer altogether or limited the costs Weiss could recover. Under the offer of settlement statute, if a defendant makes an offer of settlement that the plaintiff rejects and the plaintiff’s final judgment does not exceed the offer, the defendant is entitled to recover the actual costs incurred after the date of the offer, even if the plaintiff is the prevailing party. The court of appeals determined that a subsequent offer does not extinguish a previous offer or limit the costs the defendant is otherwise entitled to recover based on the earlier offer, so each offer must be separately analyzed to determine whether the defendant is entitled to a costs award based on that offer. Here, Weiss made a statutorily compliant offer of settlement on July 21, 2022, and Weiss’s second offer of settlement had no effect on his entitlement to costs based on the first offer. Accordingly, the district court was required to award Weiss his actual costs accrued after July 21, 2022, to be paid by McLellan.
McLellan also argued that the district court erred by awarding her only her actual costs accrued before the first statutory offer of settlement. However, this contention is based on the erroneous premise that because her final judgment exceeded the second offer, Weiss is not entitled to the benefit of CRS § 13-17-202(1)(a)(II). As the prevailing party, McLellan could only recover actual costs accrued prior to the date of the first offer. Accordingly, the district court did not err.
The judgment was affirmed.