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Rule 167.4. Awarding Litigation Costs

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(a) Generally. If a settlement offer made under this rule is rejected, and the judgment to be awarded on the monetary claims covered by the offer is significantly less favorable to the offeree than was the offer, the court must award the offeror litigation costs against the offeree from the time the offer was rejected to the time of judgment.

(b) "Significantly less favorable" defined. A judgment award on monetary claims is significantly less favorable than an offer to settle those claims if:

(1) the offeree is a claimant and the judgment would be less than 80 percent of the offer; or
(2) the offeree is a defendant and the judgment would be more than 120 percent of the offer.

(c) Litigation costs. Litigation costs are the expenditures actually made and the obligations actually incurred directly in relation to the claims covered by a settlement offer under this rule for the following:

(1) court costs;
(2) reasonable deposition costs, in cases filed on or after September 1, 2011;
(3) reasonable fees for not more than two testifying expert witnesses; and
(4) reasonable attorney fees.
(d) Limits on litigation costs.

(1) In cases filed before September 1, 2011, the litigation costs that may be awarded under this rule must not exceed the following amount:

(A) the sum of the noneconomic damages, the exemplary or additional damages, and one-half of the economic damages to be awarded to the claimant in the judgment; minus
(B) the amount of any statutory or contractual liens in connection with the occurrences or incidents giving rise to the claim.
(2) In cases filed on or after September 1, 2011, the litigation costs that may be awarded to any party under this rule must not exceed the total amount that the claimant recovers or would recover before adding an award of litigation costs under this rule in favor of the claimant or subtracting as an offset an award of litigation costs under this rule in favor of the defendant.

(e) No double recovery permitted. A party who is entitled to recover attorney fees and costs under another law may not recover those same attorney fees and costs as litigation costs under this rule.

(f) Limitation on attorney fees and costs recovered by a party against whom litigation costs are awarded. A party against whom litigation costs are awarded may not recover attorney fees and costs under another law incurred after the date the party rejected the settlement offer made the basis of the award.

(g) Litigation costs to be awarded to defendant as a setoff. Litigation costs awarded to a defendant must be made a setoff to the claimant's judgment against the defendant.

Amended by order of Sept. 9, 2011, eff. Sept. 1, 2011.

Prior Amendments Future Amendments
Oct. 9, 2003, eff. Jan. 1, 2004