Yes. Under Oklahoma law, offers of judgment made under 12 O.S. § 1101 and 12 O.S. § 1101.1(A) are separate, independent procedures a defendant can use in the same case. Using both preserves each statute’s own cost- and fee-shifting rules, the Oklahoma Court of Civil Appeals held in Teasdale v. Foshee, 2024 OK CIV APP 10.
The personal injury attorneys at Hasbrook & Hasbrook regularly review offers of judgment that insurance companies file before a case reaches trial. A verdict at or below the offer lets the defendant recover costs, and sometimes attorney fees, from the offer date. Oklahoma has two separate offer-of-judgment statutes, and for nearly thirty years it was unclear whether a defendant could use both in the same lawsuit.
How Oklahoma’s Offer of Judgment Statutes Work
12 O.S. § 1101 applies only to actions for the recovery of money. It lets a defendant serve an offer of judgment on the plaintiff at any time before trial. If the plaintiff accepts within five days, judgment is entered on the offer. If the plaintiff rejects it and later fails to win a judgment for more than the offer, the plaintiff has to pay the defendant’s costs from the date of the offer forward.
12 O.S. § 1101.1 covers more ground: personal injury, wrongful death, and several other specified actions, and unlike § 1101, it lets both sides make offers and counteroffers more than ten days before trial. It applies only once the plaintiff demands more than $100,000 or the defendant offers more than $100,000. If the plaintiff turns down the defendant’s offer and the judgment is less than that offer, the defendant can recover reasonable litigation costs and attorney fees from the offer date, and the reverse is true if the defendant turns down the plaintiff’s counteroffer. Evidence of the offers is not admissible at trial, except in a later proceeding to enforce a settlement or set reasonable costs and fees.
Teasdale v. Foshee: Can a Defendant Use Both Offer Statutes in One Case?
Both statutes have been on the books since 1995, but whether a defendant could invoke both in the same case, rather than choosing one, stayed an open question until 2024. The Oklahoma Court of Civil Appeals answered it in Teasdale v. Foshee, 2024 OK CIV APP 10, decided February 2, 2024, by Division IV on appeal from the District Court of Cleveland County.
- Teasdale brought a negligence claim against Foshee after a boat accident on July 7, 2016.
- On September 6, 2019, Foshee served an offer of judgment under § 1101.1(A) for $25,000, inclusive of fees and costs. Teasdale countered at $65,000 under § 1101.1(A)(2), and Foshee never responded.
- On December 2, 2019, Foshee served a second offer, this time under § 1101, for $27,500, inclusive of fees and costs. Teasdale did not respond to it either.
- The jury returned a verdict for Foshee. He then sought his litigation costs and, separately, attorney fees dating back to his first offer under § 1101.1(A).
- The district court awarded Foshee his costs but denied the fee request, ruling that his later § 1101 offer controlled. Foshee appealed the fee ruling.
What the Court of Civil Appeals Held
The Court of Civil Appeals reversed the fee ruling. It held that §§ 1101 and 1101.1(A) create separate, independent procedures, and a defendant can use both in the same case rather than being forced to pick one. Requiring a defendant to choose, the court reasoned, would work against the purpose both statutes share: encouraging resolving a case before trial. Because Foshee’s earlier § 1101.1(A) offer stayed valid even after his later § 1101 offer, the district court had erred in treating the later offer as controlling. The court vacated the order denying attorney fees and remanded that question, while leaving the costs award in place.
Why the Cost-and-Fee Distinction Matters
The outcome turned on a difference between the two statutes that is easy to miss: § 1101.1(A) shifts both litigation costs and attorney fees, while § 1101 generally shifts costs only. That gap is what decided whether Foshee could recover fees at all.
Teasdale confirms that a later § 1101 offer does not cancel an earlier § 1101.1(A) offer’s fee-shifting potential, so a defendant can layer the two rather than treating them as mutually exclusive. A plaintiff weighing whether a settlement offer is worth accepting should check which statute it was made under, since that determines whether rejecting it risks costs alone or costs and fees together.
Oklahoma’s approach is more generous to defendants than the federal system, where Federal Rule of Civil Procedure 68 lets only a defendant make a formal offer and shifts costs only, never fees. Oklahoma’s § 1101.1(A) opens the counteroffer process to plaintiffs and shifts fees directly (full text: § 1101.1). In practice, layering offers late in a case can look less like encouraging settlement and more like an insurer hedging its litigation costs.
If you are deciding whether to accept or reject an offer of judgment in an Oklahoma injury case, Hasbrook & Hasbrook can help you weigh what it means for your costs and fees. Walk through your specific offer with our office before you respond to it.
