The defendant in an action for the recovery of money only may, at any time before the trial, serve upon the plaintiff or the plaintiff's attorney an offer in writing to allow judgment to be taken against the defendant for the sum specified therein. If the plaintiff accepts the offer and gives notice thereof to the defendant or the defendant's attorney, within five days after the offer was served, the offer and an affidavit that the notice of acceptance was delivered in the time limited may be filed by the plaintiff or the defendant may file the acceptance, with a copy of the offer verified by affidavit. In either case, the offer and acceptance shall be entered upon the record, and judgment shall be rendered accordingly. If the notice of acceptance is not given in the period limited, the offer shall be deemed withdrawn and shall not be given in evidence or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, the plaintiff shall pay the defendant's cost from the time of the offer.

Annotations

1. Offer and acceptance

2. Miscellaneous

1. Offer and acceptance

When read in conjunction with this section, section 44-359 prohibits an award of attorney fees to a plaintiff, in a suit against the plaintiff's insurer, who rejects an offer of judgment and later fails to recover more than the amount offered. Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d 433 (2010).

For an insurer to take advantage of the protection of this section, the insurer must expressly comply with the requirement that an offer to allow judgment be made. Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006).

Read together, this section and section 44-359 prohibit an award of attorney fees to a plaintiff, in a suit against the plaintiff's insurer, who rejects an offer to allow judgment and later fails to recover more than the amount offered. Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006).

This section applies to offers to allow judgment against a defendant, which, under the plain meaning of this section, are not equivalent to settlement offers. Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006).

An offer to confess judgment, and its acceptance pursuant to section 25-901, require the entry of a judgment according to the offer and acceptance. Jaixen v. Turner, 204 Neb. 123, 281 N.W.2d 404 (1979).

If notice of acceptance is not given within five days, offer may be withdrawn; judgment on later acceptance vacated. Becker v. Breen, 68 Neb. 379, 94 N.W. 614 (1903).

Plaintiff should be taxed with all costs from time of offer. Wachsmuth v. Orient Ins. Co., 49 Neb. 590, 68 N.W. 935 (1896).

Offer must be made in open court or served on plaintiff though filed. Rose v. Peck, 18 Neb. 529, 26 N.W. 363 (1886).

2. Miscellaneous

This section does not apply to condemnation proceedings, because they are not “for the recovery of money only.” Pinnacle Enters. v. City of Papillion, 286 Neb. 322, 836 N.W.2d 588 (2013).

Settlement agreement at former trial did not establish liability and as it constituted a question of fact was not binding as law of case in subsequent trial on the merits. System Meat Co. v. Stewart, 190 Neb. 682, 211 N.W.2d 902 (1973).

Tender by insurance company of a sum of money, accompanied by demand for execution of receipt and formal release and return of policy, was not absolute and unconditional. Baird v. Union Mutual Life Ins. Co., 104 Neb. 352, 177 N.W. 156 (1920).

Negotiations for settlement between litigants cannot be disclosed to jury. Tankersley v. Lincoln Traction Co., 101 Neb. 578, 163 N.W. 850 (1917).

Section is not applicable to proceedings in ad quod damnum. Johnson v. Sutliff, 17 Neb. 423, 23 N.W. 9 (1885).