concurring, with whom DIMOND, Justice Pro Tem., joins.
I find that I must file a separate concurrence on an issue which at first glance might appear to be a relatively minor portion of the majority opinion. The court holds that a trial court may exercise its discretion as to whether or not to award attorney’s fees to a plaintiff who has received and rejected an offer of judgment, for the period of time between the filing of the case and the date of the offer. I believe that the majority unnecessarily injects an area of uncertainty into the application of Civil Rule 68 which can hamper attorneys in deciding whether to make an offer of judgment, or to accept *1131such an offer. The holding will also a likely source of additional litigation over the already too frequently contested provisions with reference to allowance of attorney’s fees. be
I do not agree with the dictum that when an offer of judgment is accepted, allowance of attorney’s fees is discretionary. To use the metaphor of Alaska’s glacial streams, the majority opinion adds silt to already murky waters, whereas the combined application of the terms of Civil Rules 68 and 821 should produce clarity.
There are four situations which may arise in the event that an offer of judgment is made under Rule 68: 1) the offer is accepted; 2) the offer is rejected, and the plaintiff recovers more than. the amount of the offer; 3) the offer is rejected, and the plaintiff recovers less than the amount of the offer, but still is the prevailing party; and 4) the offer is rejected, and the plaintiff recovers less than the amount of the offer, but is not the prevailing party.
Under the first situation, the offeree is entitled under the provisions of the rule to costs and attorney’s fees accrued to the date of the offer. The majority inexplicably states that Rule 68 does not require that costs incurred prior to an offer of judgment be awarded. Rule 68 specifies that the offer allow judgment to be taken “with costs then accrued”. In Alaska, under Civil Rule 82, costs include attorney’s fees. The offer therefore must be for a specified sum plus such costs. Attorney’s fees normally will be computed on the amount of the offer under either the “without trial” or “non-contested” schedule of Rule 82.2
Under the example given by the majority in Footnote 12 where it is desired to make a “nuisance” settlement offer of $5,000.00, an attorney should have no difficulty computing the approximate amount of the fee to be allowed. The amount of the offer can quite accurately be gauged so that the party making the offer will know the total amount of liability to be incurred including the allowable costs and attorney’s fee in the event that the offer is accepted.
In the event that the offer is rejected, if the plaintiff recovers more than the amount of the offer, he will be entitled to a normal allowance as a prevailing party for costs and attorney’s fees under the provisions of Civil Rule 82.
If the offer is rejected and the offeree recovers less than the amount of the offer but is still the prevailing party, he should receive a reasonable allowance for his costs and attorney’s fees incurred prior to the date of the offer.3
ATTORNEY’S FEES IN AVERAGE CASES
Without Non-Contested Trial Contested First $ 2,000 25% 20% 15%
Next $ 3,000 20% 15% 12.5%
Next $ 5,000 15% 12.5% 10%
Over $10,000 10% 7.5% 5%
Finally, we have the situation involved in the present litigation where the offeree recovers less than the amount of the offer of judgment and is not the prevailing party. Continental sued Fidelity to recover $250,000.00 that it paid on behalf of Northern Insurance in settlement of a *1132wrongful death case. It also sought its costs and attorney’s fees in defending the wrongful death action. On appeal, we held that Continental was not entitled to recover the $250,000.00 payment made, but that it was entitled to two-seventh’s of its attorney’s fees. The opinion on the present appeal correctly affirms Judge Carlson in his holding that Fidelity was the prevailing party even though Continental recovered $3,670.13. Owen Jones & Sons, Inc. v. C. R. Lewis Co., 497 P.2d 312 (Alaska 1972), is directly in point.
Since Fidelity was the prevailing party, Continental was not entitled to attorney’s fees at all. In the Owen Jones case, we upheld an award of attorney’s fees of $10,000.00 to the defendant despite the plaintiff’s ultimate recovery of $7,363.12 on a claim of $119,663.12. It is only the prevailing party that is entitled to an award of attorney’s fees. If an offer of judgment is made, and the plaintiff recovers less than the amount offered, the plaintiff will normally still be the prevailing party. If, for example, suit is filed for $55,000.00 and an offer of judgment of $50,000.00 rejected, a plaintiff receiving $40,000.00 would still be the prevailing party. If so, in my opinion, he is entitled to costs and a reasonable attorney’s fee to the date of offer. On the other hand,, if there is a defense verdict, or similarly if the main issues are resolved in the favor of the defendant so that he is to be regarded as the prevailing party, the plaintiff is not entitled to any attorney’s fee even for services performed during the portion of time prior to the offer of judgment. To permit the trial court to exercise discretion so as to award an attorney’s fee to a non-prevailing plaintiff who has refused an offer of favorable judgment is to allow the plaintiff to be placed in a better position than if no such offer had been made and rejected. Since the plaintiff is not the prevailing party, in the absence of an offer of judgment, he would not be entitled to any allowance for attorney’s fees. I fail to see why the plaintiff’s rejection of a favorable offer of compromise, which requires the litigation to continue, should make it discretionary for the trial court to award such a plaintiff his attorney’s fee. I do not believe that Civil Rule 68 was intended to cause any such bizarre result.
.Rules of procedure should be construed harmoniously. See State v. Treadway, 88 Ariz. 420, 357 P.2d 157, 158 (1960) ; Zuniga v. Gity of Tucson, 5 Ariz.App. 220, 425 P.2d 122, 124 (1967) ; Hoffmeister v. McIntosh, 361 P.2d 678, 680 (Wyo.1961), reh. denied, 364 P.2d 823. See also 1 Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, § 139 (1960) ; Wright and Miller, Federal Practice and Procedure: Civil, § 1029 (1969). Of. Criminal Rule 2, Appellate Rule 46 and Civil Rules 1 and 92; City of Anchorage v. Scavenius, 539 P.2d 1169 (Alaska 1975).
We have previously held that Civil Rule 68 should be construed with Civil Rule 82. Jakoski v. Holland, 520 P.2d 569, 578 (Alaska 1974).
. Rule 82 has the following schedule:
. Jakoshi v. Holland, 520 P.2d 569, 578 (Alaska 1974).