UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

KELLY BRYANT; HOLLIE BRYANT, Plaintiffs - Appellants,

v. SAGAMORE INSURANCE COMPANY, Defendant - Appellee. No. 14-7096 (D.C. No. 6:13-CV-00240-RAW) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, LUCERO and MATHESON , Circuit Judges.
Plaintiffs Kelly Bryant and his daughter Hollie Brya nt appeal the district court’s order awarding attorneys’ fees to Defendant Sagamore Insurance Company (Sagamore) under Okla. Stat. tit. 12, § 1101.1(B), based on their rejection of Sagamore’s offer of judgment. This court previously affirmed the district court’s

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 20, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - grant of summary judgment in favor of Sagamore, Bryant v. Sagamore Ins. Co. , 597 F. App’x 968 (10th Cir. 2015), a nd award of costs to Sagamore under Fed. R. Civ. P. 54(d), ___ F. App’x ___ , No. 15-7000, 2015 WL 4258673 (10th Cir. July 15, 2015). The district court had di versity jurisdiction unde r 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND Briefly, Kelly Bryant had a car insura nce policy with Sagamore that excluded coverage for his teen daug hter, Hollie. Hollie drove Ke lly’s car and was in an accident that injured another driver. Sagamore denied c overage because the Bryants failed to cooperate with Sagamore’s inve stigation and Hollie wa s not covered under Kelly’s policy. The Bryants filed suit ag ainst Sagamore jointly claiming breach of contract and bad faith. Sagamore moved for summary judgment . While that motion was pending, it made an unapportioned o ffer of judgment to the Bryants for $5,000 under Okla. Stat. tit. 12, § 1101.1(B) . The Bryants sought and r eceived clarification of the offer, but did not respond to it, thus, it was deemed rej ected under § 1101.1(B)(1). The district court later granted summary judgment in favor of Sagamore on all claims. Sagamore then moved for attorn eys’ fees and non-taxable costs incurred after the date of its offer of judgment under § 1101.1(B)(3). “Section 1101.1(B)(3) entitles a defendant to the rec overy of costs and its reasonable attorneys’ fees after an offer of judgment when the judgment awarded is less than the am ount of the offer.”- 3 - Scottsdale Ins. Co. v. Tolliver , 636 F.3d 1273, 1278 (10th Cir. 2011). The Bryants opposed the motion, arguing Sa gamore’s offer of judgment was invalid because it was not apportioned between them. As a result, they claime d, they could not evaluate the value of the offe r relative to their respective claims. The district court ruled the offer was valid b ecause the Bryants were fam ily members represented by the same attorney, had filed joint, identical claims, and alleged only joint, identical damages at all times prior to the offer of judgment. The court awarded Sagamore $78,642.00 in attorneys’ fees and $410.43 in non-taxa ble costs. The Bryants challenge the validity of the award, but do not challenge the reasonableness of the

amount. II. DISCUSSION On appeal, the Bryants argue that unapportioned offers under § 1101.1 are invalid under Oklahoma law. “We review a district c ourt’s decision on whether to award attorney fees for abuse of discretion, but we review de novo the district court’s application of the legal principl es underlying that decision.” Scottsdale , 636 F.3d at 1276 (internal quotation marks omitted). Section 1101.1 is a substantive, not procedural, provision, id . at 1280, and therefore Okla homa law governs in this diversity case. The Oklahoma Supreme C ourt has not addressed whether § 1101.1 requires individual offers of judgment to each plaintiff in order to be valid. Because this is an unsettled question of Oklahoma in surance law, “we must attempt to predict how [Oklahoma’s] highest court would interpret the issue.” Cornhusker Cas. Co. v.- 4 - Skaj , 786 F.3d 842, 852 ( 10th Cir. 2015) (ellipsis, brack ets and internal quotation marks omitted). “We may c onsider all resources availa ble in doing so, including decisions of [Oklahoma] cour ts, other state courts and fe deral courts, in addition to the general weight and trend of authority.” Id . (internal quotation marks omitted). Section 1101.1(B) states th at in any civil action for other than personal injury or wrongful death, “any defendant may file w ith the court, at a ny time more than ten (10) days prior to trial, an offer of judgm ent for a sum certain to any plaintiff with respect to the action or any claim or claims asserted in the acti on.” “If no offer of judgment or counteroffer of judgment is accepted a nd the judgment awarded the plaintiff is less than one or more offers of judgment, the defendant shall be entitled to reasonable litigation costs and reasonable attorney fees in curred by the defendant . . . from and after the date of the first offer of judgment . . . un til the date of the judgment.” § 1101.1(B)(3). 1 “The purpose of § 1101.1(B) is to encourage judgments without protracted litigation by providing additional incentives to encourage a plaintiff to accept a defendant’s offer to confess judgment and to encourage a defendant to offer an early confession of ju dgment to avoid furthe r increases in costs which may be incurred fo r trial preparation.” Hubbard v. Kaiser-Francis Oil Co ., 256 P.3d 69, 73 (Okla. 2011) (brackets an d internal quotation marks omitted).

1 An almost identically worded provision covers pers onal injury and wrongful death civil actions, Okla. Stat. tit. 12, § 1101.1(A). It st ates that “any defendant may [make] an offer of judgment . . . to any plaintiff” and that the defendant is entitled to attorneys’ fees if the u ltimate judgment is less th an an unaccepted offer. Id

.- 5 - The Oklahoma Court of Civil Appeals ha s thrice ruled that an unapportioned offer of judgment to multiple plaintiffs was invalid u nder § 1101.1. First, in Haddock v. Woodland Park Home, Inc. , 90 P.3d 594 (Okla. Civ. App. 2004), the court ruled an unapportioned offer was invalid where a hus band and wife had asserted different claims a nd the jury awarded damages to the wife, but rejected the husband’s claims. Because § 1101.1 “use s the singular ‘any defendant’ and ‘any plaintiff,’” the Haddock court concluded it permits of fers only to each plaintiff singly. Id . at 597. The court reasoned that “an unapportioned offer to multiple plaintiffs prevents each plaintiff from evaluating the settlement offer against the value of his or her claim and would lead to confusi on in apportioning between the various plaintiffs’s responsib ility for the attorney fees after a judgm ent for less than the settlement offer.” Id . at 598. A divided panel of the Court of Civil Appeals followed the rule announced in Haddock a year later, in Medlock v. Admiral Safe Company, Inc. , 122 P.3d 883 (Okla. Civ. App. 2005). The majority ruled that an unapportioned offer under Okla. Stat. tit. 12, § 1101.1 was invalid because it did not identify to which plaintiffs it was directed. “Otherwise,” it stated, “a single plaintif f could reject an offer to confess judgment, and impose the penalty of attorneys fees on co-plaintiffs willing to accept the offer.” 122 P.3d at 889. The dissent argued Haddock and the majority misconstrued the “any plaintiff” language in § 1101.1, citing Oklahoma’s rules of statutory construction which st ate that “‘[w]ords used in the singular number include- 6 - the plural, and the plural the singular, except where a contrary intention plainly appears.’” Id . at 889-90 (Joplin, J., dissenting) (q uoting Okla. Stat. tit. 25, § 25). The dissent argued the language of § 110 1.1 plainly and cl early allows “any defendant to make an unap portioned offer of judgment to several plaintiffs.” Id . at 890 (internal quotation marks omitted). Most recently, the Oklahoma Court of Civil Appeals ruled that an unapportioned offer was invalid where the husband and wife plai ntiffs asserted different, independent claims , because the lump-s um offer of judgment “fail[ed] to consider the [plaintiffs ’] individual actions, cl aims and damages.” Schommer v. Communicate Now!, L.P ., 324 P.3d 433, 438 (Okla. Civ. App. 2014). The Bryants rely on Haddock , Medlock and Schommer to argue the district court erred in ruling Sagamo re’s unapportioned offer of judgment was valid. The district court, however, ag reed with the dissent in Medlock that Haddock and Medlock were wrongly decided and, thus, were not predictive of how the Oklahoma Supreme Court would rule on the unapporti oned-offer-of-judgment question. It ruled that Sagamore’s unapportioned offer was va lid because the Bryants filed identical joint claims, were family me mbers who shared an attorn ey, and never disclosed any individual damages prior to Sagamore’s offer. Further, the distri ct court noted that the Bryants sought and obtained clarificat ion of Sagamore’s offer of judgment. To predict how the Oklahoma Supreme Court would rule, we first look to the language of § 1101.1(B). The Court of Ci vil Appeals has conceded that Oklahoma’s- 7 - statutorily mandated rule of statutory construction, Okla. Stat. tit. 25, § 25, requires that “[w]ords used in the singular numbe r include the plural, and the plural the singular, except where a contrary intention plainly appears.” See Medlock , 122 P.3d at 889 (stating “we concede the dissent’s general statement of the law regarding singular and plural terms,” though reasoning that the cont ext of the provision requires apportioned offers). We ar e therefore satisfied that the Oklahoma Supreme Court would not adopt the Haddock court’s reasoning that th e use of the singular “any plaintiff” in § 1101.1 require s offers only be made to each plaintiff singly. We cannot find any other basis in the language of § 1101.1 to support a conclusion that the language of the statute re quires individual offers be ma de to each plaintiff, thus, we next consider whether Oklahoma’s Su preme Court would require an apportioned offer on policy grounds. The Oklahoma Supreme Court has rule d that offers of judgment under § 1101.1 must be reasonable. Hubbard , 256 P.3d at 74-75 (“Although the legislature did not specifically require a reasonable sta ndard for the offer, it would not have intended unreasonable acts in the use and implementation of its legislation.”). We think, therefore, that it would agree with the Haddock court that an offeree must be able to “evaluat[e] the settlement offer against the value of his or her claim.” Haddock , 90 P.3d at 598. We do not predict, however, that th e Oklahoma Supreme Court would go so far as to adopt a per se rule that every unapportioned offer to more than one plaintiff- 8 - is invalid under § 1101.1, as the Bryants argue. “Case law . . . does not go so far as to say a defendant must always appor tion an offer between each plaintiff.” Roska v. Sneddon , 366 F. App’x 930, 941 (10t h Cir. 2010) (interpreting Fed. R. Civ. P. 68). The federal cost-shifting statute, Rule 68, like § 1101.1, permits a defending party to recover its costs if it makes an offer of judgment and the plaintiff’s ultimate judgment is less than the offer. Rule 68 differs so mewhat from § 1101.1—it only applies to offers from defenda nts and it only covers post-o ffer costs, not attorneys’ fees—but it is sufficiently comparable to § 1101.1 to cons ider federal court decisions regarding unapportioned offers. In considering when to award attorneys’ fees and costs under Rule 68, we have held, much like the Haddock court interpreting § 1101.1, that “the offeree mu st know what is being offere d in order to be responsible for refusing the offer.” Arkla Energy Res. v. Ro ye Realty & Developing, Inc. , 9 F.3d 855, 867 (10th Cir. 1993). Federal courts have ruled that offers of judgment under Rule 68 need not, as a per se rule, apportion damages among multiple parties in order to be valid. The Seventh Circuit held in Gavoni v. Dobbs House, Inc ., 164 F.3d 1071, 1075 (7th Cir. 1999), that an unapportioned offer to mu ltiple plaintiffs was invalid where the plaintiffs had competing clai ms and were suing for separa te physical injuries because the offer could not be compar ed to the different judgments each plaintiff obtained. There, the defendant made an unapportioned offer to thr ee plaintiffs, but the jury returned a verdict in favor of each plaintiff individually for three different amounts.- 9 - Id . at 1074. Because it was impossible to tell whether the amount each plaintiff received from the jury was less favorable than what each would have received from the unapportioned offer, the Gavoni court ruled the offer of judgment had no effect. Id . at 1075-77. The District of Columbia Circuit relied upon Gavoni in ruling that an unapportioned offer of judgment to thre e plaintiffs who had filed separate employment discrimination claims against their employer did not trigger Rule 68’s cost-shifting provision where only one plaintiff was awarded any damages. Thomas v. Nat’l Football League Players Ass’n , 273 F.3d 1124, 1130 (D.C. Cir. 2001). But the Seventh Circuit has since made clear that its holding in Gavoni was not a per se rule, stating, “[w]e need not go so far as to conclu de . . . that Rule 68 always requires an exact delineation of the manner in which damages are to be apportioned among multiple parties.” Harbor Motor Co. v. Arnell Chevrolet-Geo,
Inc. , 265 F.3d 638, 649 (7th Ci r. 2001) (holding offer of judgment made jointly by two defendants not effective to shift costs where judgme nt obtained only against one defendant). The First and Second Circuits have also held th at unapportioned offers are not invalid as a matter of law. Stanczyk v. City of New York , 752 F.3d 273, 284 (2d Cir. 2014) (“Rule 68 offers need not, as a per se rule, expressly apportion damages”; rather, an “offer is operative so long as it is capable of being compared to the prevailing plaintiff’s ultimate recovery.”); King v. Rivas , 555 F.3d 14, 19 (1st Cir. 2009) (same)).- 10 - The Medlock court expressed concern that one plaintiff might be willing to accept an offer while another might not. 122 P. 3d at 889. But fe deral courts have ruled that making an offer to multiple plaintiffs condi tioned on acceptance by all is permissible in a Rule 68 offer of judgmen t because it encour ages settlement and avoids litigation. In Lang v. Gates , 36 F.3d 73 (9th Cir. 1994), the Ninth Circuit ruled an unapportioned offer conditioned on acceptance by both plaintiffs was valid, stating, “to require that pl aintiffs be allowed to accept or to reject joint offers individually might encourage multiple plain tiffs to hedge their bets by collusively having at least one party accept the offer and at least one other d ecline [so that] they could both benefit if the judgment is great er than the offer, and could both avoid incurring costs . . . if it is less.” Id . at 75 (internal quotation marks omitted); see also Amati v. City of Woodstock , 176 F.3d 952 (7th Cir. 1999 ) (“We cannot find anything in the rule, or the case law, to sup port the view that the condition which the defendants imposed—all the plaintiffs must accept the offer of j udgment for it to be effective—is invalid.”). On facts similar to the Bryants’ case, a panel of this c ourt ruled that an unallocated Rule 68 offer of judgment to multip le plaintiffs are not , as a matter of law, ineffective or invalid. Roska , 366 F. App’x at 940-42. The panel concluded apportionment was not necessa ry because the plaintiffs were “a single family represented by a one attorney, claiming . . . damages arising from the same set of facts.” Id . at 941. The panel noted the plainti ffs sought collective damages in their- 11 - complaint and did not disclose their assessment of individualized damages disclosures to defendants. Id

. Turning to the case before us, we find nothing in the Bryants’ litigation proceedings to suggest they were unable to ev aluate the merits of their claims relative to the value of Sagamore’s offer. The Br yants are father and daughter represented by one attorney, they asserted undivided joint breach of contract a nd bad faith claims based on the same factual al legations, and they sought collective, undifferentiated damages. This distinguishes them from the plaintiffs in Haddock and Schommer , who could not evaluate an unapportioned offer because th ey alleged different and potentially competing claims. The Bryants lo st at summary judgment, thus, there is no difficulty comparing the damage award each received with the amount of the offer, as was the case in Haddock

. We further find it significant that prior to Sagamore’s offer of judgment, the Bryants repeatedly alleged they suffered only collective, undiffere ntiated damages. Thus, Sagamore had no basis from the Bryants’ pleadings or disclosures to offer them anything but an undifferentiated, collective offer of judgmen t. The Bryants disclosed undifferentiated, unappor tioned damages in their initial disclosures under Fed. R. Civ. P. 26(a)(1)(A)(iii) (requiring parties to provide a computation of each category of damages without aw aiting a discovery request). Aplee. Supp. App. at 14. Days before Sagamore made its offer of judgment, the Bryants again provided only a joint list of undifferentiated, unapportione d damages on their supplemental Rule 26- 12 - disclosure statements. Id . at 23. The Bryants argue they did allege different damages, citing the Agreed Pretrial Order, but that disclosure was not made until months after Sagamore’s offer of judgment. Aplt. App. Vol. II, at 272-73. The Bryants also cite Kelly’s motion to dismiss his claims under Fed. R. Civ. P. 41(a)(2), but that motion, also filed after the offer of judgment, made no mention of different damage claims. In their re ply brief, the Bryants cite to Kelly’s deposition testimony, taken prior to the offer, as evidence they disclosed differ ent damage claims, but that testimony is inconclusive at be st: Kelly stated that he had suffered damages but that he was not seeking to recove r them because he would rath er “just let it go.” Aplt. App. Vol. II, at 249-50. This does not fair ly disclose differences between his damage claims and those of his daughter. Moreove r, as noted, the Bryants’ subsequent Rule 26 disclosure—filed afte r that deposition and immedi ately before Sagamore’s offer—alleged only joint, undifferentiated damages. Aplee. Supp. App. at 23. In summary, we predict that the Oklahoma Supreme Court would not rule unapportioned offers to multiple plaintiffs are per se inva lid as a matter of law under § 1101.1(B). Further, we find no basis in the record to conclude the Bryants were unable to assess as individua l plaintiffs the value of Sa gamore’s offer because they asserted identical joint cl aims, claimed only joint, unspecified damages in their complaint and initial Rule 26 disclosures, and were fami ly members represented by one attorney, who could, without any conflict of interest, assist both Kelly and Hollie in evaluating the value of th eir respective claims. Furt her, the Bryants sought and- 13 - received clarification of Sagamore’s unappor tioned offer, and did not reject the offer on the ground that they were unable to as sess their individual claims; rather, they simply never responded to it. On these facts, we conclude the Oklahoma Supreme Court would not rule Sagamore’s unapporti oned offer to the Bryants was invalid under § 1101.1(B). The judgment of the dist rict court is affirmed.

Entered for the Court
Mary Beck Briscoe Chief Judge