Dolphus Mcgill v. James Beardon
72926-8
| Wash. Ct. App. | Feb 21, 2017Background
- In a 2011 car accident, McGill injured Bearden; mandatory arbitration awarded Bearden $44,000 in damages, later amended to $45,187 with $1,187 in costs.
- McGill requested a trial de novo; a jury awarded Bearden $42,500 in damages and the trial court added $3,296.39 in costs, producing a $45,796.39 judgment.
- Bearden sought attorney fees under MAR 7.3 / RCW 7.06.060(1), arguing McGill failed to improve his position because the trial judgment ($45,796.39) exceeded the amended arbitration award ($45,187).
- The trial court awarded $71,800 in fees; this court initially reversed, the Washington Supreme Court granted review in related matters (Nelson) and remanded for reconsideration.
- On reconsideration, this Court applied Nelson and Niccum principles: compare the jury verdict (damages only) to the initial arbitration award (damages only) to determine whether the requesting party improved its position.
- Because McGill owed $44,000 after arbitration and $42,500 after trial, the court held McGill improved his position and reversed the fee award.
Issues
| Issue | Bearden's Argument | McGill's Argument | Held |
|---|---|---|---|
| What pretrial "position" controls under MAR 7.3 when an arbitration award was amended to include costs? | Use the amended arbitration award (including costs) as the pretrial position. | Use the initial arbitration award (damages only); costs are not part of the pretrial position absent an offer that included costs. | Pretrial position is the initial arbitration award (damages only); amended costs are not considered. |
| What posttrial "position" controls under MAR 7.3 — jury verdict alone or final judgment including costs? | Look to the final judgment (damages plus costs) to measure posttrial position. | Use the jury verdict (damages only) as the posttrial position. | Posttrial position is the jury verdict (damages only); exclude costs. |
| Should courts apply an "ordinary person" perspective in comparing positions under MAR 7.3? | The ordinary-person test supports including total sums as an ordinary person would understand them. | The test supports excluding costs unless they were part of an offer; ordinary-person view aligns with Niccum and Nelson. | Apply the ordinary-person perspective consistent with Niccum and Nelson, comparing damages-only amounts unless an offer of compromise included costs. |
| Did McGill improve his position at trial sufficient to bar MAR 7.3 fee recovery? | No — when comparing final judgments including costs, Bearden prevailed on a larger total. | Yes — comparing damages-only amounts, McGill owed less after trial than after arbitration. | Yes — McGill improved his position (44,000 → 42,500), so MAR 7.3 fees are not recoverable. |
Key Cases Cited
- Niccum v. Enquist, 175 Wn.2d 441, 286 P.3d 966 (2012) (use ordinary-person perspective; costs not subtracted from offers unless included; compare verdict to offer/award on damages basis)
- Nelson v. Erickson, 186 Wn.2d 385, 377 P.3d 196 (2016) (applies ordinary-person test and treats known arbitration costs as part of an offer when the offer specifies costs; compares jury verdict damages to pretrial position)
- Bearden v. McGill, 193 Wn. App. 235, 372 P.3d 138 (2016) (prior appellate decision in this case addressing MAR 7.3 analysis; remanded for reconsideration in light of Nelson)