In WPH Architecture, Inc. v. Vegas VP, __ P.3d __, 131 Adv. Op. 88 (Nev. Nov. 5, 2015), the Nevada Supreme Court held that Rule 68 Offers of Judgment, together with statutes allowing offers of judgment in Nevada “are substantive laws that apply to the arbitration proceedings in the current case.” In this case, the contract between the litigants required arbitration of any disputes pursuant to the American Arbitration Association’s Construction Arbitration Rules, and applying Nevada substantive law. Prior to arbitration, the claimant made a statutory and Rule 68 offer of judgment. The respondent rejected the offer of judgment, then lost at arbitration.
The arbitrator refused to award attorney fees based on the offer of judgment. The claimant then asked the court to modify the arbitrator’s award, claiming the arbitrator “manifestly disregarded the law.” The Supreme Court declined to modify the award. Although Nevada Rules of Civil Procedure 68, Nevada Revised Statute 17.115, and NRS 18.020 are routinely used in state court litigation as a tool to award costs to the prevailing party, the Court held they do not expressly apply to include arbitration proceedings. Therefore, an arbitrator is not required to award attorney fees or costs pursuant to Nevada Rules of Civil Procedure 68, Nevada Revised Statute 17.115, or NRS 18.020. Moreover, the Court noted that under NRS 38.238, an award fees and costs by an arbitrator is discretionary.
Nevada arbitrators may be asked to apply Nevada Rules of Civil Procedure 68, Nevada Revised Statute 17.115, and NRS 18.020 when awarding attorney fees to a prevailing party in arbitration. Litigants should understand, however, that such an award is still discretionary.
Jay Young is a Las Vegas, Nevada arbitrator and mediator with a successful neutrals practice. His mediator, arbitrator, and ADR training include: 36 hour ADR certification in 1994. 40 hour mediator training. Appointed by the Nevada Supreme Court as a Nevada Supreme Court Settlement Judge. Appointed by the Nevada Supreme Court as an Arbitrator (2003-Present) in the 8th Judicial District Court (Las Vegas, Clark County, Nevada). Judge Pro Tem (2011-present). Appointed Special Master to the Business Court, 8th Judicial District Court (Las Vegas, Clark County, Nevada). Arbitrator and Mediator for American Arbitration Association (Complex Commercial Litigation Arbitration and Mediation National Panel Member); Better Business Bureau Arbitrator. Arbitrated and/or mediated over 250 disputes. Training courses include: Supreme Court of Nevada: “Impasse Prevention & Communication”; Supreme Court of Nevada: “Implied Bias”; Supreme Court of Nevada: “Breaking Impasse”; Supreme Court of Nevada: “Ethics, Comprehensive Review”; AAA Arbitrator Subpoenas: Are They Worth the Paper They’re Printed On?, 2015; AAA Roundtable – Las Vegas, 2015; AAA Essential Mediation Skills for the New Mediator, 2015; AAA Fundamentals of Effective Mediation Advocacy, 2015; AAA Confronting Arbitrability & Jurisdiction in Arbitration, 2015; AAA Award Writing, 2014; AAA Arbitration Fundamentals and Best Practices for New AAA Arbitrators, 2013; AAA “Arbitrator’s Role, Authority, and Responsibility”; AAA “Arbitrator’s Ethics, Practice Standards and Disclosures”; AAA “Preparing for and Conducting a Preliminary Hearing”; AAA: “Managing Issues Involving Self-Represented Parties”; AAA: “Managing Evidentiary Hearing Issues”; AAA: “Managing Panel Dynamics”; AAA: “Preparing for and Writing the Award”; AAA: “Managing Post-Hearing Issues”; Better Business Bureau, Arbitrator Training, 2006; “Succeeding In Mediation,” AAA, 2003; “Mediation and Arbitration Advocacy”; AAA, 2002, “Cutting Edge Negotiation Strategies for Lawyers”; Negotiation Strategy Institute, 2002; “Arbitrator Training,” Supreme Court of Nevada, State Bar of Nevada, 2000; “Arbitration 101”, Clark County Bar Association, 1994.