Whittenton v. Peter Pan Seafoods, Inc., 421 P.3d 1133

In 2011 a Peter Pan Seafoods employee backed into the Whittentons’ car; Brandy and daughter Delila sued for injuries; Charles sued for loss of consortium.
In June 2015 Peter Pan served separate Alaska R. Civ. P. 68 offers: $23,500 to Brandy and $2,000 to Delila, each stating the amounts were “inclusive of costs, interest and attorney’s fees.”
Neither offer was accepted; Delila’s later jury recovery exceeded her offer, Brandy’s did not. The jury awarded Brandy $15,796.33; after adjustments the court calculated her recovery below 95% of the $23,500 offer.
Peter Pan sought Rule 68 penalties (attorney’s fees and costs) against Brandy as the offeree whose judgment was at least 5% less favorable than the offer. The superior court ultimately granted Peter Pan prevailing-party status under Rule 68 as to Brandy.
Brandy appealed, arguing (1) the offer to her was invalid under Rule 68 because it would not have ended the entire litigation among all plaintiffs, and (2) the court improperly excluded certain costs (not limited to Rule 79 costs) when comparing her recovery to the offer.
The Alaska Supreme Court affirmed: the offer to Brandy was a valid Rule 68 offer to one of several plaintiffs, and only costs allowable under Rule 79 are included in the Rule 68 comparison absent clear contractual language otherwise.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an offer of judgment addressed to one of multiple plaintiffs is a valid Rule 68 offer	Whittenton: Offer to Brandy was invalid because it would not have ended the entire litigation among all parties	Peter Pan: Offer valid as to the parties identified; Rule 68 penalties can be triggered by an offer that resolves the claims between the offeror and that offeree	Valid: an offer to one of several plaintiffs that would end the litigation between the parties to that offer triggers Rule 68 penalties even if other plaintiffs remain active
Whether “costs” in the offer include all costs or only costs allowable under Alaska R. Civ. P. 79 for Rule 68 comparison	Whittenton: Offer’s phrase “inclusive of costs” should be read to include all costs incurred, not just Rule 79 costs	Peter Pan: “Costs” are read as costs allowable under Rule 79 absent clear contractual language to the contrary	Held: “Costs” in the offer are limited to costs allowable under Rule 79; a reasonable offeree would not have understood the offer to include costs beyond Rule 79

Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083 (Alaska 2008) (discussing limits on abusive Rule 68 tactics and when payments count toward recovery)
Windel v. Mat‑Su Title Ins. Agency, Inc., 305 P.3d 264 (Alaska 2013) (reiterating that an offer must encompass all claims between the parties to the offer)
Hayes v. Xerox Corp., 718 P.2d 929 (Alaska 1986) (holding separate offers to multiple plaintiffs can be valid where one plaintiff could accept without requiring joint acceptance)
LaPerriere v. Shrum, 721 P.2d 630 (Alaska 1986) (interpreting “costs then accrued” in offer language to mean costs allowable under Rule 79)
Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634 (Alaska 2007) (clarifying that an unambiguous offer must identify parties and claims resolved to be enforceable under Rule 68)