5373 AMH CARR PERR 84

SB 5373 - H AMD 0405 WITHDRAWN 3-7-02

By Representative Carrell

On page 1, strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 7.06.050 and 1982 c 188 s 2 are each amended to read as follows:

(1) Following a hearing as prescribed by court rule, the arbitrator shall file his decision and award with the clerk of the superior court, together with proof of service thereof on the parties. Within twenty days after such filing, any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo in the superior court on all issues of law and fact. Such trial de novo shall thereupon be held, including a right to jury, if demanded.

(a) Up to thirty days prior to the actual date of a trial de novo, a nonappealing party may serve upon the appealing party a written offer of compromise.

(b) Up to twenty days prior to the actual date of a trial de novo, an appealing party who has been served a written offer of compromise by a nonappealing party may serve the nonappealing party a written counter offer of compromise.

(c) In any case in which an offer of compromise or a counter offer of compromise is not accepted by the appealing party or the nonappealing party respectively within ten days prior to the actual date of a trial de novo, the amount of the offer of compromise and the amount of the counter offer of compromise shall replace the amount of the arbitrator's award for determining whether the appealing party or the nonappealing party has failed to improve that party's respective position on the trial de novo.

(d) A postarbitration offer of compromise or a postarbitration counter offer of compromise shall not be filed or communicated to the court or the trier of fact until after judgment on the trial de novo, at which time a copy of the offer of compromise and the counter offer of compromise shall be filed for purposes of determining whether the appealing party or the nonappealing party has failed to improve that party's respective position on the trial de novo, pursuant to MAR 7.3.

(2) If no appeal has been filed at the expiration of twenty days following filing of the arbitrator's decision and award, a judgment shall be entered and may be presented to the court by any party, on notice, which judgment when entered shall have the same force and effect as judgments in civil actions.

Sec. 2. RCW 7.06.060 and 1979 c 103 s 6 are each amended to read as follows:

(1) The ((~~supreme~~)) superior court ((~~may by rule provide for~~)) shall assess costs and reasonable attorney's fees ((~~that may be assessed~~)) against a party ((~~appealing from the award~~)) , whether appealing or nonappealing, who fails to improve his or her position on the trial de novo. The court may assess costs and reasonable attorneys' fees against a party who voluntarily withdraws a request for a trial de novo if the withdrawal is not requested in conjunction with the acceptance of an offer of compromise or counter offer of compromise or other settlement of the case.

(2) For the purposes of this section, "costs and reasonable attorneys' fees" means those provided for by statute or court rule, or both, as well as all expenses related to expert witness testimony, that the court finds were reasonably necessary after the request for trial de novo has been filed.

(3) If the prevailing party in the arbitration also prevails at the trial de novo, even though at the trial de novo the other party, whether the appealing party or the nonappealing party, may have improved his or her position from the arbitration, this section does not preclude the prevailing party from recovering those costs and disbursements otherwise allowed under chapter 4.84 RCW, for both actions.

NEW SECTION. Sec. 3. A new section is added to chapter 7.06 RCW to read as follows:

This act applies to all requests for a trial de novo filed pursuant to and in appeal of an arbitrator's decision and filed on or after the effective date of this act."