Per‑Plaintiff Apportionment Required: Oklahoma Supreme Court Mandates Apportioned Offers of Judgment Under 12 O.S. § 1101.1(A)

Introduction

In Lunn v. Continental Motors, Inc., 2025 OK 29, 568 P.3d 589, the Supreme Court of Oklahoma resolved a question of first impression: whether an offer of judgment made under Oklahoma’s offer‑of‑judgment statute, 12 O.S. § 1101.1(A), must be apportioned among multiple plaintiffs to be valid. The Court answered yes and established a bright‑line rule requiring per‑plaintiff apportionment.

The case arose from a wrongful death lawsuit filed by William D. Lunn individually and as personal representative of the estates of his three deceased children. During the litigation, defendant Continental Motors, Inc. (CMI) made a single, lump‑sum $300,000 offer of judgment to resolve all claims. Lunn rejected the offer, and after a defense verdict and later appellate proceedings reinstating that verdict, CMI sought approximately $3.4 million in attorney’s fees under § 1101.1(A). The district court denied fees, and the Court of Civil Appeals (COCA) affirmed, relying on its own prior decisions that disallow unapportioned offers to multiple plaintiffs. On certiorari, the Oklahoma Supreme Court vacated the COCA opinion but affirmed the district court, formally holding that offers of judgment must be apportioned per plaintiff.

Summary of the Opinion

• The Oklahoma Supreme Court held that an offer of judgment under 12 O.S. § 1101.1(A) is valid only if it is apportioned among multiple plaintiffs. A single “global” lump‑sum offer to multiple plaintiffs is invalid.
• The Court grounded its conclusion in the statute’s plain language, the American Rule’s strict construction of fee‑shifting, and practical policy considerations.
• Because CMI’s offer did not specify the amount offered to each plaintiff, it was invalid; CMI therefore could not recover attorney’s fees under § 1101.1(A).
• The Court vacated the COCA opinion (which had reached the same result relying on COCA precedent) and affirmed the district court’s denial of fees.

Detailed Analysis

1) Precedents and Authorities Cited

Although this was an issue of first impression for the Oklahoma Supreme Court, the Court drew on several sources:

• COCA line of cases requiring apportionment
  • Haddock v. Woodland Park Home, Inc., 2004 OK CIV APP 42, 90 P.3d 594: Joint offer to wife (injury claim) and husband (loss of consortium) was invalid because it failed to allocate amounts between materially different claims. The absence of apportionment created confusion about post‑verdict fee responsibility where one plaintiff recovered and the other did not.
  • Medlock v. Admiral Safe Co., Inc., 2005 OK CIV APP 72, 122 P.3d 883: Four plaintiffs sued a locksmith; an unapportioned offer was held invalid. COCA emphasized that each plaintiff must have a sufficiently definite offer to evaluate and accept or reject independently; otherwise, one plaintiff’s decision could unfairly impose fee consequences on others.
  • Schommer v. Communicate Now!, L.P., 2014 OK CIV APP 38, 324 P.3d 433: A $10,000 unapportioned offer led to confusion when plaintiffs interpreted it as $10,000 each. COCA invalidated the offer, warning that non‑apportioned offers invite gamesmanship and frustrate the statute’s purpose.
• American Rule and strict construction of fee‑shifting
  • Fulsom v. Fulsom, 2003 OK 96, 81 P.3d 652: Oklahoma follows the American Rule; fee‑shifting statutes are exceptions narrowly construed to avoid chilling access to courts. Any fee authorization must be clearly expressed and strictly enforced.
  • Boston Ave. Mgmt., Inc. v. Associated Res., Inc., 2007 OK 5, 152 P.3d 880: Reinforces narrow construction of statutes that deviate from the American Rule.
• Statutory interpretation canons
  • In re Initiative Petition No. 397, 2014 OK 23, 326 P.3d 496: Legislative intent derives primarily from the statute’s plain and ordinary meaning.
  • Cooper v. State ex rel. Dep’t of Pub. Safety, 1996 OK 49, 917 P.2d 466: If legislative intent is clear from the text, no further construction is necessary.
  • 25 O.S. § 25 (singular includes plural): The Court declined to apply this general canon because a “contrary intention plainly appears” from § 1101.1(A)’s context and text.
• Purpose and policy of offers of judgment
  • Dulan v. Johnston, 1984 OK 44, 687 P.2d 1045, and Hicks v. Lloyd’s Gen. Ins. Agency, Inc., 1988 OK 97, 763 P.2d 85: Fee‑shifting offer‑of‑judgment provisions aim to encourage settlement, discourage needless litigation, and conserve judicial resources.
• Standard of review
  • State ex rel. Protective Health Servs. v. Vaughn, 2009 OK 61, 222 P.3d 1058: Statutory interpretation is reviewed de novo; the Court exercises independent, non‑deferential judgment.
• Substantive wrongful death damages context
  • 12 O.S. § 1053(A): Identifies distinct categories of wrongful death damages (e.g., decedent’s pain and suffering, medical and burial expenses, and parents’ losses), underscoring why different plaintiffs’ claims can vary materially in value and must be distinctly addressed in any offer.

2) The Court’s Legal Reasoning

The Court’s reasoning proceeds in three interlocking steps: text, doctrine, and policy.

• Textual analysis of § 1101.1(A)

  The Court emphasized the statute’s repeated use of singular terms: “any defendant may file... an offer of judgment... to any plaintiff”; “each plaintiff to whom an offer... is made shall...”; “if the plaintiff fails to file...”; “in the event the plaintiff rejects...”; and “the defendant filing the offer... shall be entitled....” From this language, the Court concluded that the statutory scheme contemplates offers to individual plaintiffs, not undifferentiated global offers to groups of plaintiffs. While 25 O.S. § 25 generally allows singular to include plural, the Court held that a contrary intention plainly appears in § 1101.1(A)’s context, making the singular‑includes‑plural canon inapplicable.

• Strict construction of fee‑shifting

  Because offers of judgment under § 1101.1(A) can trigger fee‑shifting, the Court applied the American Rule’s requirement that fee statutes be strictly construed. Ambiguities are resolved against expanding fee liability. On this basis, the Court refused to infer validity for unapportioned group offers not clearly authorized by the statute’s text.

• Practical policy considerations

  Echoing COCA’s logic in Haddock, Medlock, and Schommer, the Court identified three compelling reasons why apportionment is necessary:

  • Comparability: Courts must be able to directly compare “the judgment awarded the plaintiff” with “the final offer of judgment” to ascertain whether fee‑shifting applies. An unapportioned aggregate number defeats that comparison for each plaintiff and invites post‑hoc judicial apportionment—contrary to the statute’s design to leave allocation to the parties.
  • Independent evaluation: Each plaintiff should be able to evaluate and accept or reject an offer based on the value of their own claim. A global number obscures each plaintiff’s baseline, potentially letting one plaintiff’s decision create fee exposure for others.
  • Anti‑gamesmanship: Unapportioned offers can generate confusion and strategic behavior, including attempts to disown one’s own offer or leverage ambiguity, thereby consuming the very resources the statute is meant to conserve.

  The Court underscored these concerns in the case before it: Lunn had an individual claim distinct from the wrongful death claims he brought as personal representative for each of his three children. The value of each claim could differ materially, rendering a single $300,000 figure unhelpful for assessment or later fee determinations.

• Bright‑line rule

  To eliminate uncertainty and litigation over post‑offer apportionment, the Court expressly adopted a bright‑line rule: in multiple‑plaintiff cases, an offer of judgment is valid only if it states the specific amount offered to each plaintiff. Absent apportionment, the offer is invalid, and fee‑shifting cannot be invoked.

3) Impact and Prospective Significance

Lunn sets binding statewide precedent and recalibrates settlement practice under § 1101.1(A):

• Mandatory apportionment: Defendants must allocate offer amounts per plaintiff. A global figure requiring joint acceptance is invalid for fee‑shifting purposes.
• Independent acceptances: Each plaintiff must be positioned to accept or reject their apportioned offer within the statutory timeframe. Counsel should anticipate—and draft for—the possibility of mixed responses among co‑plaintiffs.
• Cleaner fee determinations: Courts can now readily compare a per‑plaintiff offer with that plaintiff’s eventual judgment. This reduces post‑verdict litigation over fee entitlement and limits judicial involvement in apportionment.
• Strategic settlement planning: Parties should expect more granular offers (and counteroffers) reflecting claim‑by‑claim and plaintiff‑specific valuations, particularly in cases with mixed claim types (e.g., personal injury, loss of consortium, wrongful death categories).
• Risk of forfeiting fee‑shifting: A defendant who uses a lump‑sum, unapportioned offer risks invalidation and the loss of any right to recover fees under § 1101.1(A), even if the defense ultimately prevails at trial with a judgment less than the offer.

The decision also signals that courts will not rely on generalized canons (like singular‑includes‑plural) to broaden fee‑shifting regimes where the practical operation of the statute and its text point the other way. Finally, by adopting a bright‑line rule, Lunn reduces the administrative burden on trial courts and curbs opportunities for tactical ambiguity in multi‑plaintiff settlements.

Complex Concepts Simplified

• Offer of judgment (12 O.S. § 1101.1(A)): A formal settlement proposal filed with the court. If the plaintiff rejects it and later obtains a judgment less than the offer, the offering defendant may recover reasonable attorney’s fees and costs incurred after the offer through verdict. The statute is designed to encourage realistic settlements and deter protracted litigation.
• Apportionment: Dividing a total settlement amount among multiple plaintiffs so that each plaintiff knows the exact sum offered for their individual claim. Under Lunn, apportionment is mandatory for validity in multi‑plaintiff cases.
• American Rule: Each party ordinarily pays their own attorney’s fees. Fee‑shifting is an exception and must be expressly and clearly authorized by statute or contract, and strictly construed.
• Strict construction: Courts give fee‑shifting statutes a narrow reading, resolving ambiguities against expanding fee liability to preserve open access to the courts.
• Singular‑includes‑plural canon (25 O.S. § 25): A general interpretive rule that singular words can include the plural (and vice versa) unless the context shows a contrary intent. In Lunn, the Court found contrary intent in § 1101.1(A), so the canon did not apply.
• Wrongful death damages (12 O.S. § 1053(A)): Oklahoma allows recovery for categories such as the decedent’s conscious pain and suffering, medical and burial expenses, and the survivors’ losses (e.g., companionship, support). Different beneficiaries or related claimants may have claims of different value, making apportionment practically necessary.

Practical Guidance for Litigants and Counsel

• In multi‑plaintiff cases, file either:
  • Separate offers of judgment to each plaintiff, or
  • A single filing that clearly states the distinct dollar amount offered to each named plaintiff and allows each to accept or reject independently.
• State whether the offer includes costs and attorney’s fees otherwise recoverable, as § 1101.1(A) deems them included unless expressly excluded.
• Track and document each plaintiff’s response within the statutory 10‑day window; a failure to respond is deemed a rejection.
• When claims differ materially (e.g., survivor’s personal injury vs. wrongful death; consortium vs. injury), reflect those differences in the apportionment to facilitate informed decision‑making and to align with Lunn’s comparability rationale.
• Avoid “global, joint acceptance required” terms. Such terms risk invalidation and forfeiture of fee‑shifting rights.
• Consider clarity on claim‑specific settlement terms when one plaintiff asserts multiple claims; while Lunn mandates per‑plaintiff apportionment, further clarity can preempt disputes about scope and release.

Unresolved Questions and Boundaries

• Multi‑defendant offers: Lunn addresses offers made by a defendant to multiple plaintiffs. It does not resolve whether and how multi‑defendant global offers must be apportioned by defendant; however, the Court’s comparability logic may counsel similar caution.
• Apportionment among claims by a single plaintiff: The holding requires per‑plaintiff apportionment. It does not require claim‑by‑claim apportionment for a single plaintiff, although doing so may be prudent in complex cases.
• Mixed acceptances: The statute envisions each plaintiff accepting or rejecting independently. Parties should plan for partial settlements where some plaintiffs accept and others proceed to trial.
• Interaction with confidentiality or contingencies: Conditions that effectively make acceptance joint or obscure per‑plaintiff amounts could undermine validity under Lunn’s bright‑line rule.

Conclusion

Lunn v. Continental Motors, Inc. establishes a clear, bright‑line rule in Oklahoma: in cases with multiple plaintiffs, an offer of judgment under 12 O.S. § 1101.1(A) is valid only if it is apportioned per plaintiff. The Court rooted this rule in the statute’s text, the American Rule’s strict construction of fee‑shifting, and pragmatic policy concerns about comparability, independent evaluation, and anti‑gamesmanship.

Practically, defendants seeking the benefits of § 1101.1(A) must abandon lump‑sum, global offers and move to per‑plaintiff allocations that allow individualized acceptance or rejection. Courts, in turn, will benefit from streamlined, apples‑to‑apples comparisons between each plaintiff’s offered amount and their eventual judgment. By vacating the COCA opinion while affirming the district court, the Supreme Court has now provided authoritative statewide guidance that will shape settlement strategy and fee‑shifting practice across Oklahoma litigation.