Summary: Hollie Bryant, a minor, and her father filed a breach of contract and bad faith case against Sagamore Insurance Company after she was involved in an auto accident. Sagamore denied coverage on grounds of failure to cooperate and because Hollie was not an insured. After filing a motion for summary judgment Sagamore made an unapportioned offer of judgment for $5,000 under the Oklahoma Offer of Judgment statute. The Bryants sought clarification, but allowed the offer to expire without responding. The district court granted summary judgment in favor of Sagamore which then moved for attorney’s fees and costs incurred after the date of its offer of judgment, which resulted in an award of roughly $79,000. The Bryants unsuccessfully argued in the trial court and on appeal that the offer of judgment was invalid because it was not apportioned.
Bryant v. Sagamore Insurance Company
On appeal the Tenth Circuit predicted the Oklahoma Supreme Court would not hold, contrary to three fairly recent Oklahoma Appellate Court decisions, that a failure to apportion requires a per se ruling an offer of judgment is invalid. The Tenth Circuit relied on the cases construing the Federal Offer of Judgment Rule, Rule 68 (F.R.C.P.), the Oklahoma Supreme Court rulings on related issues regarding the Oklahoma Offer of Judgment statute and the facts of this case. The Tenth Circuit noted the Bryants were father and daughter represented by the same lawyer, they filed “undivided joint breach of contract and bad faith claims based on the same factual allegations, and they sought collective, undifferentiated damages.” Furthermore, before Sagamore made its offer of judgment, the Bryants “repeatedly alleged they suffered only collective, undifferentiated damages.” Finally, the “Bryants sought and received clarification of Sagamore’s unapportioned offer, and did not reject the offer on the ground that they were unable to assess the individual claims; rather, they simply never responded to it.”
This case should assist attorneys in Oklahoma representing both claimants and insurance companies in determining whether and when it is appropriate to file an offer of judgment which is not apportioned between multiple claimants and is not apportioned between breach of contract and bad faith claims. The Tenth Circuit strongly suggests the rule is not a per se rule and this outcome is very much fact based. In cases where plaintiffs definitely have distinct claims and prosecute their case in that fashion an unapportioned offer of judgment is much less likely to withstand scrutiny than in cases like the Bryant case where the plaintiffs made no effort to distinguish between and among their respective contract and bad faith claims. Although the Bryant case did not turn on this issue, carriers and claimants will also need to evaluate whether the breach of contract and/or tort claims have different values for different claimants which must be apportioned when an offer of judgment is being made.
