Connecticut Law Revision Commission - Offers of Judgement, 11-9-1999 Proposed Staff Draft

Proposed Staff Draft

Concerning Offers of Judgment

November 9, 1999

An Act Concerning Offers of Judgment.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 52-192a of the general statutes is repealed and the following is substituted in lieu thereof:

(a) [~~After~~] WITHIN EIGHTEEN MONTHS AFTER commencement AND BEFORE TRIAL of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, OR WITHIN SUCH LONGER PERIOD AS THE COURT MAY ALLOW, the plaintiff [~~may before trial~~] SHALL file with the clerk of the court a written "offer of judgment" signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant's attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the "offer of judgment" and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written "acceptance of offer of judgment" agreeing to a stipulation for judgment as contained in plaintiff's "offer of judgment". Upon [~~such~~] filing OF AN ACCEPTANCE, the clerk shall enter judgment immediately on the stipulation. If the "offer of judgment" is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the "offer of judgment" shall be considered rejected and not subject to acceptance unless refiled. THE PLAINTIFF MAY FILE TIMELY SUBSEQUENT OFFERS OF JUDGMENT IN ANY AMOUNT. ON FILING, A SUBSEQUENT OFFER SUPERCEDES AND TERMINATES RIGHTS UNDER ANY EARLIER OFFER THAT WAS REJECTED. Any [~~such~~] "offer of judgment" and any "acceptance of offer of judgment" shall be included by the clerk in the record of the case.

(b) After trial the court shall examine the record to determine whether the plaintiff made [an] A TIMELY "offer of judgment" which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his LAST "offer of judgment", the court [shall add to the amount so recovered twelve per cent annual interest on said amount , computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the "offer of judgment" was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the "offer of judgment" was filed. The court] SHALL AWARD THE PLAINTIFF, IN ADDITION TO ALLOWABLE COSTS, THE ACTUAL REASONABLE LITIGATION COSTS OF PROSECUTING THE ACTION, INCLUDING FEES PAID TO EXPERT WITNESSES AND OTHER REASONABLE DOCUMENTED EXPENSES, AND may, TO THE EXTENT PROVIDED IN SECTION 4, award reasonable attorney's fees [in an amount not to exceed three hundred fifty dollars], and shall render judgment accordingly.

(c) This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney's fees in accordance with the provisions of any written contract between the parties to the action.

Sec. 2. Section 52-193 of the general statutes is repealed and the following is substituted in lieu thereof:

[In] WITHIN EIGHTEEN MONTHS AFTER COMMENCEMENT AND BEFORE TRIAL OF any action on contract, or seeking the recovery of money damages, whether or not other relief is sought, OR WITHIN SUCH LONGER PERIOD AS THE COURT MAY ALLOW, the defendant [~~may before trial~~] SHALL file with the clerk of the court a written notice signed by him or his attorney, directed to the plaintiff or his attorney, offering to allow the plaintiff to take judgment for the sum named in such notice. THE DEFENDANT MAY FILE TIMELY SUBSEQUENT OFFERS OF JUDGMENT IN ANY AMOUNT. ON FILING, A SUBSEQUENT OFFER SUPERCEDES AND TERMINATES ANY RIGHTS UNDER ANY EARLIER OFFER THAT WAS REJECTED.

Sec. 3. Section 52-195 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) If the plaintiff does not, within the time allowed for acceptance of the offer of judgment and before the commencement of the trial, file his notice of acceptance, the offer shall be deemed to be withdrawn and shall not be given in evidence.

(b) Unless the plaintiff recovers more than the sum named in the DEFENDANT'S LAST offer of judgment, with interest from its date, THE PLAINTIFF [he] shall recover no costs accruing after he received notice of the filing of such offer, but shall pay the defendant's ALLOWABLE costs AND THE DEFENDANT'S ACTUAL REASONABLE LITIGATION COSTS OF DEFENDING THE ACTION, INCLUDING FEES PAID TO EXPERT WITNESSES AND OTHER REASONABLE DOCUMENTED EXPENSES, accruing after he received notice. Such costs may include reasonable attorney's fees [in an amount not to exceed three hundred fifty dollars] TO THE EXTENT PROVIDED IN SECTION 4.

(c) This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney's fees in accordance with the provisions of any written contract between the parties to the action. The provisions of this section shall not apply to cases in which nominal damages have been assessed upon a hearing after a default or after a demurrer has been overruled.

Sec. 4. (new)

(a) Except as provided in subsection (b), at the time of entering judgment after trial, the court shall award reasonable attorney's fees to any party whose offer of judgment was more favorable to the opposing party than the amount of damages actually awarded.

(b) Attorney's fees may not be awarded against a party that was substantially justified in rejecting an offer or that made a reasonable offer. An offer is reasonable if the difference between the amount of the offer and the amount of the damages awarded is less than 25% of the amount of damages awarded or is otherwise reasonable in the light of the damages awarded or the uncertainties of the case.