Nowdy and I, with the help of an unlikely commenter and the offline perspective of others may have an explanation that reconciles the settlement offer made by State Farm as reported by Duesouth to the amount State Farm publicly disclosed.
The first tip was the 404 error I got when proofing Nowdy’s first post on the settlement yesterday. Nowdy is a stickler for accurately naming her linked court docs but out of habit she named it an “order for dismissal” originally when it was actually a “Judgment of Dismissal”. What we initially thought was strange wording of the document made more sense when Rule 68 of Federal Civil Procedure was mentioned today. We sent out the email plea for background information and received this reply:
I wonder if there was a FRCP, Rule 68 “offer of judgment” in McIntosh…. It means if the plaintiff does not recover more than the offer of judgment, the plaintiff has to pay all costs incurred by the defendant after plaintiff refuses the offer. These costs could be significant in a case like McIntosh.
That started to tie things together and the mystery leverage State Farm had on the McIntoshes becomes more clear. Nowdy, the consummate researcher found an article out of Massachusetts that expanded on the concept:
Offers of Judgment pursuant to Mass. R. Civ. P. Rule 68 are often used in civil cases in an attempt by the defendant/insurer to gain leverage in settlement negotiations against a plaintiff by imposing the potential for an award of costs against the plaintiff. In theory, a Rule 68 Offer of Judgment should have the Continue reading “Reconciling the McIntosh Settlement: A Possible Explanation”