04-1147 Mews v. Beaster

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“The question here is whether the pendency of a motion to dismiss part of a plaintiff’s claim absolves the plaintiff from having to act on the statutory offer. The plaintiffs in this case argue that the offers to them could not have been ‘fully and fairly evaluated’ because of such a pending motion. We disagree. If an offer is plain on its face and offers to settle the entire claim, it is an offer to do so despite the vagaries of suit. Whether the value of the claim may later change due to a court’s pretrial ruling is part of the risk-benefit analysis that all parties are capable of deciding. The offers are enforceable, and we reverse the trial court’s ruling to the contrary. …

“Were we to rule in the plaintiffs’ favor, we would be doing a disservice to the offer-to-settle statutes that were designed to ‘force’ settlements so long as the force is reasonable. Because any pending motions would likely bear on the decision whether to accept or reject an offer, the entire process would be rendered meaningless in innumerable cases. Motions to strike testimony, motions in limine, motions to dismiss and motions for summary judgment, to name a few, all could be used to thwart a clear, valid offer to settle a case. We can envision a scenario where any attorney on the receiving end of an offer of judgment who wanted to avoid the consequences of the offer could file a motion within the ten days that would place the outcome of the action in some state of uncertainty, thereby placing the attorney and the client in a position where they could not fully and fairly evaluate the offer.

We cannot countenance such a result.”

Reversed and remanded with instructions to determine the amount owed to defendant.

Dist II, Waukesha County, Dreyfus, J., Brown, J.

Attorneys:

For Appellant: Wayne M. Yankala, Milwaukee; Hillary Marie Kowalski, Milwaukee

For Respondent: James E. Gatzke, New Berlin