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ENGROSSED SENATE
BILL NO. 1428 By: Howard of the Senate
and
Stinson of the House
An Act relating to civil procedure; amending 12 O.S.
2021, Sections 940 and 1101, which relate to offers
of judgment; conforming language; modifying
procedures for offers of judgment; establishing
deadline for filing certain offer ; requiring filing
of accepted offer with court clerk; providing for
inadmissibility of unaccepted o ffer; requiring
payment of certain costs after unaccepted offer under
certain circumstances; specifying acceptable
litigation costs; esta blishing requirements for
comparison of judgment an d offer; requiring offer of
judgment letter to include certain information;
stating applicability of provisions; repealing 12
O.S. 2021, Sections 1101.1 and 1106, which relate to
offers of judgment and offer in court by defendant to
confess judgment for part of amount claim ed; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 12 O.S. 2021, Section 940, is
amended to read as follows:
Section 940. A. In any civil action to recover damages for the
negligent or willful injury to property and any other incidental
costs related to such act ion, the prevailing pa rty shall be allowed
reasonable attorney’s fees, court costs and inte rest to be set by
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the court and to be taxed and collected as other costs of the
action.
B. Provided that, the defenda nt in such action may, not less
than ten (10) days after being served with summons, serve upon the
plaintiff or his attorney a written off er to allow judgment to be
taken against him. If the plaintiff accepts the offer and gives
notice thereof to the defe ndant or his attorney, within five (5)
days after the offer was serve d, the offer, and an affidavit that
the notice of acceptance was deli vered within the time limited, may
be filed by the plaintiff, or the defendant, verified by affidavit.
The offer and acceptance shall be noted in the journal, and j udgment
shall be rendered accordingly. If the notice of acceptance is not
given in the period limited, the offer shall be deemed withdrawn,
and shall not be given in evidence or mentioned at the trial. If
upon the action being adjudicated the judgment re ndered is for the
defendant or for the plaintiff and is for a lesser amount than the
defendant’s offer, then the plaintiff shall not be entitled to
recover attorney’s fees, court costs and interest. If the ju dgment
rendered is for the plaintiff, and is fo r the same amount as t he
defendant’s offer, then the plaintiff and defendant shall incur
their own attorney’s fees, court costs and interest. And if the
judgment rendered is for the plaintiff, and is for a la rger amount
than the defendant’s offer, then the plaintiff shall be e ntitled to
recover attorney’s fees, court costs and interest.
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SECTION 2. AMENDATORY 12 O.S. 2021, Section 1101, is
amended to read as follows:
Section 1101. The defendant, in an action for the recovery of
money only, may, at any time before the trial, serve upon the
plaintiff or his attorney an offer, in writing, to allow judgment to
be taken against him for the sum specified therein. If the
plaintiff accept the offer and give notice thereof to the defendant
or his attorney, with in five days after the offer was served, the
offer, and an affidavit that the notice of acceptance was delivered
within the time limite d, may be filed by the plaintiff, or the
defendant may file the acceptance, with a copy of the offer,
verified by affidavit; and in either case, the offer and acceptance
shall be noted in the journal, and judgment shall be rendered
accordingly. If the notice of acceptance be not given in the period
limited, the offer shall be deemed withdrawn, and shall not be given
in evidence or mentioned on the trial. If the plaintiff fails to
obtain judgment for more than was offered by the defendant, he shall
pay the defendant’s costs from the time of the offer
A. MAKING AN OFFER; JUDGMENT ON AN ACCEPTED OFFER . At least
seven (7) days before a date set for trial, a party defending
against a claim may serve on an opposing party an offer to allow
judgment on specified terms . If the opposing party accepts the
offer, acceptance shall be made within five (5) da ys after service
of the offer and either party may then file the offer and notice of
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acceptance plus proof of service. The court clerk shall then enter
judgment.
B. UNACCEPTED OFFER. An unaccepted offer is considered
withdrawn, but shall not preclude a later offer. Evidence of an
unaccepted offer is not admissible except in a proceeding to
determine costs.
C. OFFER AFTER LIABILITY IS DETERMINED . When the liability of
one party to another has been established but the extent of
liability remains to be determined , the party held liable may make
an offer of judgment. Any such offer shall be served no fewer than
seven (7) days prior to the date set for a hearing to determine the
extent of liability.
D. PAYING COSTS AFTER AN UNACCEPTED OFFER.
1. If the judgment the of feree obtains is less than or equal to
the unaccepted offer or the judgment is for the offering party , the
offeree shall pay the litigation costs of the offeror incurred after
the offer was made. Litigation costs shall include recovery of all
allowable costs associated with the litigation process after the
offer was rejected including but not limited to:
a. reasonable attorney fees, if otherwise permitted by
law,
b. court costs,
c. expert witness fees, and
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d. interest to be set by the court and to be t axed and
collected as other costs of the action.
2. If the judgment the offeree obtains exceeds the offer of
judgment, the offeree shall be entitled to recover reasonable
attorney fees, court costs, and interest to the extent otherwis e
permitted by law for the offeree’s claim.
3. For purposes of comparing the amount of a judg ment with the
amount of an offer, any recoverable litigation costs shall not be
included in the amount of the compared judgment.
E. OFFER OF JUDGMENT LETTER. An offer of judgment letter shall
include the following:
1. The judgment offer amount ;
2. If the offer of judgment is for part of the amount claimed
or part of the causes involved in the action, then specifically to
which cause or causes the offer of judgment applies;
3. If the offer includes attorney fees;
4. If the action involves multiple opposing p arties, then to
which party the offer of judgment applies;
5. If the action involves multiple opposing parties and the
offer of judgement is for all parties, then specifically how much
each opposing party is to receive of the offer amount ; and
6. The expiration date of the offer as determined pursuant to
subsection A of this section .
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F. EFFECTIVENESS. The provisions of this section shall be
applicable to an action filed on or after the effective date of this
act.
SECTION 3. REPEALER 12 O.S. 2021, Sections 1101.1 and
1106, are hereby repealed.
SECTION 4. This act shall become effective November 1, 2022.
Passed the Senate the 22nd day of March, 2022.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2022.
Presiding Officer of the House
of Representatives