Refusing to let a hard case make bad law, a California appellate court this week upheld a fee award of $250,666.89 against Jeffrey Robins, who sued Regal Entertainment Group after his father took a fatal fall on a movie theater escalator. Robins lost at trial after refusing a settlement offer of $50,001.00 under California's offer-of-judgment rule, which shifts fees to a party who loses after refusing a reasonable settlement offer. California common law allows for a so-called Seever hearing to challenge such awards on the basis of ability to pay, but it appears that Robins' attorney dropped the ball on requesting one. The opinion is unpublished.

Robins is exactly the kind of personally tragic example that undermines the case for loser-pays rules in the public eye. Any expansion of loser pays in California should be accompanied by legislation authorizing insurance companies to insure plaintiffs against possible fee awards at the time they follow suit. Such insurance is common in Europe.