Silveira

In this appeal, a personal injury plaintiff contends the trial court erred in denying her request for expert witness fees and prejudgment interest under Civil Code section 3291. Plaintiff argues she was entitled to such fees and interest, which totaled over $350,000, because defendants “fail[ed] to obtain a more favorable judgment” (Code Civ. Proc., § 998) than the $1 million offer to compromise she made under section 998.

Plaintiff contends the proper comparison is between her offer and an intermediate judgment based on a jury verdict that included an award for past medical expenses in the full amount billed to her, rather than the smaller amount actually paid by her insurer under the rates the insurer negotiated with the medical providers. This negotiated rate differential (i.e., the difference between the amounts billed and the amounts paid) totaled $165,262. When it was subtracted from the verdict, plaintiff recovered less than $1 million in damages.

For purposes of determining whether a defendant “fail[ed] to obtain a more favorable judgment” under section 998, we conclude that any negotiated rate differential included in a jury’s verdict should be subtracted from…