127 F.3d 1147

NORRIS, Circuit Judge,
concurring in part and dissenting in part:
I agree with the majority that Bevard is the prevailing party under N evada law. I disagree, however, that Farmers’ offer of judgment for $8,001, “including any costs and fees,” did not include attorney fees.
Nusom v. Comh Woodburn, Inc., 122 F.3d 830 (9th Cir.1997), does not control this case. In Nusom, the plaintiffs accepted an offer of judgment for “$15,000, together with costs accrued to the date of this office.” The question presented on appeal was whether the acceptance constituted a waiver of plaintiffs’ statutory entitlement to seek attorney fees. “As a waiver or limitation on attorney fees must be clear and unambiguous” (id. at 832), we held that the plaintiffs’ acceptance of the offer was not a waiver of fees because of the ambiguity created by its silence as to fees.
Here, Farmers’ offer was not sildnt as to fees. It expressly included “any recoverable costs and fees.” It is hard to imagine what “recoverable fees” Farmers’ intended to include in the offer if not recoverable attorney fees. It is also hard to imagine that any lawyer, especially one experienced in settling cases, would interpret Farmers’ offer to mean “including any recoverable costs and fees, but excluding attorney fees.”
Aside from this crucial difference in the language of the two offers, Nusom does not control this case for another reason. Unlike the plaintiffs in Nusom, Bevard did not accept the offer of judgment. As a result, the “clear and unambiguous” standard does not apply because there is no issue of waiver of a statutory entitlement to seek fees.
The bottom line is that this appeal presents a straightforward question of contract interpretation: Did Farmers’ intend to include or exclude attorney fees from its offer of judgment? If Farmers had intended to exclude attorney fees, it could easily of said so. And it most certainly would not have used the words “including recoverable costs and fees.”

Passage view · GavelSight