Now that Rule 68 law has – like so much of our tort law and procedure – moved from a world of clear rules to a murky realm of maybes arguments like this are not uncommon.
In this personal-injury case the defendant made an Offer of Judgment “contingent on the satisfaction of all liens.” At trial the plaintiff received an award that was less than the OJ but more than she would have ended up with had she accepted it and used it to pay her liens. Her lawyer therefore argued that she shouldn’t have to pay Rule 68 sanctions, that the lien amount shouldn’t count. The trial court disagreed; she appealed.
The Court of Appeals affirms. The plaintiff had an Alaska Supreme Court case but the court distinguishes it and says that in any event the terms of our rule do not permit correcting for liens. Even if they did, the result would be an improper comparison between an OJ that did not include liens and a trial award that did.
Whether lien language in an OJ is technically necessary or not, liens have become enough of a problem that its inclusion is understandable. This is an uncommon example of a qualification on an OJ that doesn’t either nullify it or, even if valid under the present version of the rule, make its application difficult to compute.