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Nevada Rules of Civil Procedure

Rule 68. Offers of Judgment

(a)    The Offer. At any time more than 21 days before trial, any party may serve an offer in writing to allow judgment to be taken in accordance with its terms and conditions. Unless otherwise specified, an offer made under this rule is an offer to resolve all claims in the action between the parties to the date of the offer, including costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees.

(b)     Apportioned Conditional Offers. An apportioned offer of judgment to more than one party may be conditioned upon the acceptance by all parties to whom the offer is directed.

(c)      Joint Unapportioned Offers.

(1)     Multiple Offerors. A joint offer may be made by multiple offerors.

(2)   Offers to Multiple Defendants. An offer made to multiple defendants will invoke the penalties of this rule only if:

(A)    there is a single common theory of liability against all the offeree defendants, such as where the liability of some is entirely derivative of the others or where the liability of all is derivative of common acts by another; and

(B)    the same entity, person, or group is authorized to decide whether to settle the claims against the offerees.

(3)    Offers to Multiple Plaintiffs. An offer made to multiple plaintiffs will invoke the penalties of this rule only if:

(A)   the damages claimed by all the offeree plaintiffs are solely derivative, such as where the damages claimed by some offerees are entirely derivative of an injury to the others or where the damages claimed by all offerees are derivative of an injury to another; and

(B)    the same entity, person, or group is authorized to decide whether to settle the claims of the offerees.

(d)     Acceptance of the Offer and Dismissal or Entry of Judgment.

(1)   Within 14 days after service of the offer, the offeree may accept the offer by serving written notice that the offer is accepted.

(2)   Within 21 days after service of written notice that the offer is accepted, the obligated party may pay the amount of the offer and obtain dismissal of the claims, rather than entry of a judgment.

(3)    If the claims are not dismissed, at any time after 21 days after service of written notice that the offer is accepted, either party may file the offer and notice of acceptance together with proof of service. The clerk must then enter judgment accordingly. The court must allow costs in accordance with NRS 18.110 unless the terms of the offer preclude a separate award of costs. Any judgment entered under this section must be expressly designated a compromise settlement.

(e)    Failure to Accept Offer. If the offer is not accepted within 14 days after service, it will be considered rejected by the offeree and deemed withdrawn by the offeror. Evidence of the offer is not admissible except in a proceeding to determine costs, expenses, and fees. The fact that an offer is made but not accepted does not preclude a subsequent offer. With offers to multiple offerees, each offeree may serve a separate acceptance of the apportioned offer, but if the offer is not accepted by all offerees, the action will proceed as to all. Any offeree who fails to accept the offer may be subject to the penalties of this rule.

(f)    Penalties for Rejection of Offer.

(1)  In General. If the offeree rejects an offer and fails to obtain a more favorable judgment:

(A)  the offeree cannot recover any costs, expenses, or attorney fees and may not recover interest for the period after the service of the offer and before the judgment; and

(B)   the offeree must pay the offeror’s post-offer costs and expenses, including a reasonable sum to cover any expenses incurred by the offeror for each expert witness whose services were reasonably necessary to prepare for and conduct the trial of the case, applicable interest on the judgment from the time of the offer to the time of entry of the judgment and reasonable attorney fees, if any be allowed, actually incurred by the offeror from the time of the offer. If the offeror’s attorney is collecting a contingent fee, the amount of any attorney fees awarded to the party for whom the offer is made must be deducted from that contingent fee.

(2)   Multiple Offers. The penalties in this rule run from the date of service of the earliest rejected offer for which the offeree failed to obtain a more favorable judgment.

(g)   How Costs, Expenses, Interest, and Attorney Fees Are Considered. To invoke the penalties of this rule, the court must determine if the offeree failed to obtain a more favorable judgment. If the offer provided that costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees, would be added by the court, the court must compare the amount of the offer with the principal amount of the judgment, without inclusion of costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees. If a party made an offer in a set amount that precluded a separate award of costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees, the court must compare the amount of the offer, together with the offeree’s pre-offer taxable costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees, with the principal amount of the judgment.

(h)   Offers After Determination of Liability. When the liability of one party to another has been determined by verdict, order, or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which has the same effect as an offer made before trial if it is served within a reasonable time not less than 14 days before the commencement of hearings to determine the amount or extent of liability.

Advisory Committee Note—2019 Amendment

The amendments retain much of former NRCP 68. But as amended Rule 68(f)(2) now provides that, when multiple offers are given, the penalties in Rule 68(f)(1) run from the offer earliest in time that is more favorable than the judgment. The existence of any subsequent offer, whether more or less favorable, does not change the penalty for rejecting the relevant offer. This amendment changes the approach to multiple settlement offers that is prescribed by Albios v. Horizon Communities, Inc., 122 Nev. 409, 132 P.3d 1022 (2006). Experience under Albios suggests that parties are reluctant to make subsequent settlement offers when the penalty for rejecting a favorable offer applies only to the last offer of judgment. The revisions should encourage settlement.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

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