“All Claims” Does Not Include Legal Fees – A Trap for the Unwary

McGuire v. Bates, --- P.3d ----, (Wash.App. Div. 1 Dec 15, 2008) (NO. 60463-5-I)

Contractor Bates made an offer of to settle “all claims” in the full amount of the damages claimed by the plaintiff McGuire. McGuire accepted. McGuire was also seeking attorney fees as the prevailing party with a claim less than $10,000 under RCW 4.84.250-280.

Since the statute provides for attorney fees as “costs” and neither costs nor attorney fees were specifically mentioned in the offer, McGuire could accept the offer and still seek attorney fees as the prevailing party. The court held McGuire was the prevailing party even though a decision had not been rendered by the arbitrator and judgment had not been entered. The Ninth Circuit similarly requires waiver of attorney fees to be specific. See Nusom v. Comh Woodburn, Inc, 122 F.3d 830, 832 (9th Cir.1997).