Rule 68. Settlement offers.

(a) Unless otherwise specified, an offer made under this rule is an offer to resolve all claims in the action between the parties to the date of the offer, including costs, interest and, if attorney fees are permitted by law or contract, attorney fees.

(b) If the adjusted award is not more favorable than the offer, the offeror is not liable for costs, prejudgment interest or attorney fees incurred by the offeree after the offer, and the offeree shall pay theofferor's costs incurred after the offer. The court may suspend the application of this rule to prevent manifest injustice.

(c) An offer made under this rule shall:

(c)(1) be in writing;

(c)(2) expressly refer to this rule;

(c)(3) be made more than 14 days before trial;

(c)(4) remain open for at least 14 days; and

(c)(5) be served on the offeree under Rule 5.

Acceptance of the offer shall be in writing and served on the offeror under Rule 5. Upon acceptance, either party may file the offer and acceptance with a proposed judgment under Rule 58A.

(d) "Adjusted award" means the amount awarded by the finder of fact and, unless excluded by the offer, the offeree's costs and interest incurred before the offer, and, if attorney fees are permitted by law or contract and not excluded by the offer, the offeree's reasonable attorney fees incurred before the offer. If the offeree's attorney fees are subject to a contingency fee agreement, the court shall determine a reasonable attorney fee for the period preceding the offer.

Advisory Committee Note

Under Section 78B-5-824 a party will not be awarded prejudgment interest on special damages in a Tier 1 action for personal injury or wrongful death arising on or after July 1, 2014 if:

(1) the party does not make a settlement offer;

(2) the settlement offer is tendered less than 60 days before trial; or

(3) the settlement offer is greater than or equal to one and one-third times the judgment awarded at trial.

Although the statute does not directly affect settlement offers made under Rule 68, parties should be aware of the limitation a settlement offer has on prejudgment interest in some cases.