§ 147.048.Offer to Settle

An offer-of-settlement mechanism with a cost consequence, on the same logic as the general offer of settlement rule.

Subsections (a) and (b): a defendant receiving notice may offer to settle, and the offer may include an offer to cure or correct the failure. The claimant must accept not later than the 30th day after it is made, or the offer is rejected.

Rejection is automatic on silence, so a claimant who ignores an offer has rejected it.

Subsection (c) lets the defendant file the rejected offer with the court, with an affidavit certifying its rejection.

Subsection (d) is the sanction. If the court finds the amount tendered was the same as, substantially the same as, or more than the damages found by the trier of fact, the claimant may not recover any amount in excess of the lesser of the amount tendered or the damages found.

So a claimant who turned down an adequate offer and then won recovers no more than the offer. The point is to make refusing a fair offer costly, and it works by capping rather than by shifting fees.

"Substantially the same as" prevents the mechanism failing on a small margin, which would otherwise let a claimant defeat it by recovering slightly more.

Subsection (e) removes the protection from a defendant acting in bad faith: it does not apply where the defendant could not perform the offer when made or substantially misrepresented its value.

Subsection (f) excludes attorney’s fees and litigation expenses from "damages" for this comparison, so the two figures are measured on the same basis.