## Facts

- Michael Erickson rear-ended a vehicle driven by Jess Nelson, and Nelson claimed the collision injured his neck and back and aggravated degenerative disk disease.
- Nelson sued Erickson for negligence.
- Before trial, the parties stipulated that Nelson incurred $9,361 in medical expenses in the eight months following the accident, but Erickson disputed damages for past and future pain and suffering and disputed future medical damages.
- The case proceeded through Washington’s mandatory arbitration process; the arbitrator awarded Nelson $44,923, which included $1,522 in attorney fees and costs.
- Erickson requested a trial de novo.
- Before trial, Nelson made a written settlement offer of “$26,000 plus taxable costs incurred at arbitration.”
- At trial (about three years after the accident), Nelson presented medical testimony that the accident aggravated his condition, that he continued to experience pain, and that future cervical epidural injections might be needed if symptoms continued; Nelson and lay witnesses also testified to ongoing limitations.
- Erickson presented expert testimony that Nelson suffered a soft-tissue injury that should have resolved within weeks to months and that ongoing pain was not caused by the collision, though defense counsel acknowledged in closing that Nelson was still experiencing pain.
- The jury awarded Nelson past noneconomic damages, past medical expenses, and future medical expenses, but awarded $0 for future noneconomic damages (future pain and suffering).
- The trial court granted Nelson’s motion for additur, increasing future noneconomic damages from $0 to $3,000.
- The trial court also awarded Nelson attorney fees and costs under MAR 7.3, concluding Erickson had not improved his position after requesting the trial de novo.
- Erickson appealed, challenging both the additur and the MAR 7.3 fee-and-cost award.

## Issues

1. Did the trial court abuse its discretion by granting additur and increasing the jury’s $0 award for future noneconomic damages to $3,000?
2. For MAR 7.3 “improved position” analysis, should Nelson’s settlement offer be treated as a flat $26,000 offer or as $26,000 plus an additional amount for taxable arbitration costs, and did Erickson improve his position at trial?

## Decision

- The Court of Appeals affirmed the trial court’s additur increasing future noneconomic damages from $0 to $3,000.
- The Court of Appeals vacated the trial court’s award of attorney fees and costs to Nelson under MAR 7.3.
- The case was affirmed in part and reversed in part, with the fee-and-cost award set aside.

## Legal Principles

- Additur is reviewed for abuse of discretion; a court may increase a damages award when the verdict is not supported by substantial evidence or is inadequate as a matter of law.
- When the evidence of ongoing or future pain is not meaningfully disputed, a jury’s award of $0 for future pain and suffering may be legally inadequate, and additur may be used to correct the verdict without ordering a new trial.
- Under MAR 7.3, a party who requests a trial de novo after mandatory arbitration must pay the opposing party’s reasonable attorney fees and costs only if the requesting party fails to improve its position at trial.
- A party’s pretrial “position” for MAR 7.3 purposes is determined objectively, based on how a reasonable person would understand the terms of the offer or demand.
- An offer stated as a dollar amount “plus taxable costs incurred at arbitration” is not an all-inclusive lump sum; it includes the stated amount plus additional taxable costs, which must be considered when comparing the offer to the trial result.
- If the requesting party’s trial result is more favorable than the properly interpreted pretrial position, the requesting party has improved its position and MAR 7.3 fee shifting does not apply.

## Conclusion

The Court of Appeals held that the trial court acted within its discretion by granting a modest additur after the jury awarded future medical expenses yet awarded no future pain-and-suffering damages, but it vacated the MAR 7.3 fee-and-cost award because Nelson’s settlement offer was reasonably read as $26,000 plus taxable arbitration costs, and Erickson improved his position at trial when compared to that offer.


Nelson v. Erickson, 190 Wash. App. 1003 (2015)