O.C.G.A. § 9-11-68 allows a party in a tort case to make a formal written offer of settlement at least 30 days before trial. If the offeree rejects the offer and the final judgment is more than 25% less favorable than the offer, the offeree may be required to pay the offering party’s reasonable attorney’s fees and litigation costs from the date of the rejection forward. The statute applies to both plaintiffs and defendants, creating reciprocal risk. A defendant who makes a reasonable offer and is met with an excessive damages verdict faces no fee-shifting. A plaintiff who rejects a substantial offer and receives a modest verdict may face significant fee exposure. As a practical illustration: a defendant makes a formal offer of $200,000 under O.C.G.A. § 9-11-68. The plaintiff rejects the offer and proceeds to trial. The jury returns a verdict of $140,000. The 25% threshold is $200,000 minus 25% = $150,000. Because the $140,000 verdict is less than $150,000, the fee-shifting provision triggers, and the plaintiff may be required to pay the defendant’s attorney’s fees and costs incurred from the date of rejection through trial. The statute has meaningfully changed settlement dynamics in Georgia personal injury litigation. The offer must be made at least 30 days before trial and remain open for at least 30 days. The fee-shifting risk is reciprocal: a plaintiff can make a formal offer, and if the defendant rejects it and the verdict is more than 25% more favorable to the plaintiff than the offer, the defendant may owe the plaintiff’s post-rejection attorney’s fees. This two-way mechanism pressures both sides to evaluate settlement offers seriously rather than reflexively rejecting them.
92.1. What are the formal requirements for a valid offer of settlement under O.C.G.A. § 9-11-68 in Georgia?
The offer must be in writing, must be served on the opposing party at least 30 days before the date set for trial, must clearly identify the amount of the offer, and must comply with all statutory requirements for form and content. Technical deficiencies in the offer, such as failure to specify the claims covered or failure to include required statutory language, can invalidate the fee-shifting mechanism entirely. The offer must be sufficiently clear and specific to allow the recipient to make an informed decision about acceptance or rejection based on a complete understanding of what is being offered and what would be given up.
92.2. How does Georgia calculate whether the final judgment is more than 25% less favorable than the rejected offer?
The calculation compares the final judgment amount to the rejected offer amount. For a defendant’s offer, the plaintiff’s judgment must be less than 75% of the offer amount for fee-shifting to trigger. For a plaintiff’s offer, the defendant must have paid more than 125% of the offer for fee-shifting to apply. The comparison is mathematical: if the defendant offered $100,000 and the plaintiff ultimately receives less than $75,000 at trial, the 25% threshold is met and fee-shifting may be imposed. Interest, costs, and other adjustments to the judgment may affect the calculation depending on the specific circumstances.
92.3. Can a Georgia defendant make a nominal offer of settlement to trigger fee-shifting risk for a plaintiff?
A nominal or token offer that bears no reasonable relationship to the value of the plaintiff’s claim may not satisfy the good faith requirement that courts read into the statute. Georgia courts have authority to evaluate whether the offer was made in good faith as a genuine settlement attempt or was merely a tactical device to create fee-shifting exposure. An offer of $100 on a claim with documented damages of $500,000 is unlikely to be treated as a legitimate offer of settlement for fee-shifting purposes, though the precise boundaries of what constitutes a good faith offer are determined on a case-by-case basis.
92.4. How does the offer of settlement statute apply when multiple defendants or multiple plaintiffs are involved in a Georgia case?
The statute allows individual parties to make and receive offers separately. Each party’s offer and the corresponding judgment are evaluated independently for fee-shifting purposes. When multiple defendants are present, each defendant may make a separate offer to the plaintiff, and the fee-shifting analysis compares each defendant’s offer against that defendant’s share of the final judgment. The mechanics become complex in multi-party cases, and the specific allocation of the judgment among defendants affects whether the 25% threshold is met as to each offering party.
92.5. What types of attorney’s fees and costs are recoverable under O.C.G.A. § 9-11-68 in Georgia?
Reasonable attorney’s fees and litigation costs incurred from the date of the offer’s rejection through the conclusion of the case are recoverable. This includes attorney time spent on trial preparation, discovery, depositions, expert consultations, and the trial itself after the rejection date. Litigation costs include expert witness fees, deposition transcript costs, court reporter fees, exhibit preparation expenses, and other reasonable litigation expenses. The fees and costs must be documented and their reasonableness must be established, typically through detailed billing records and attorney affidavits.
92.6. Can a Georgia plaintiff recover fees under the statute if the verdict substantially exceeds the defendant’s rejected offer?
Yes, the fee-shifting mechanism is reciprocal and applies equally to plaintiffs. If a plaintiff made a formal offer of settlement that the defendant rejected, and the final judgment exceeds the plaintiff’s offer by more than 25%, the defendant may be required to pay the plaintiff’s post-rejection attorney’s fees and litigation costs. This reciprocal application creates settlement pressure on both sides and incentivizes serious evaluation of settlement offers from both the defense and the plaintiff perspective.
92.7. How does the offer of settlement statute interact with Georgia’s bad faith statutes when both are potentially applicable?
The offer of settlement statute and the bad faith failure-to-settle statutes serve different purposes and can apply simultaneously to the same case. The offer of settlement statute creates fee-shifting risk based on the mathematical comparison of the offer and the judgment. The bad faith statute creates liability for excess judgments based on the insurer’s unreasonable claims handling conduct. An insurer that both rejected a reasonable settlement offer under O.C.G.A. § 9-11-68 and acted in bad faith under O.C.G.A. § 33-4-6 may face exposure under both frameworks, though the specific remedies and requirements differ.
92.8. How does Georgia treat offers of settlement in cases that settle before trial but where a pre-trial offer was already rejected?
If the case settles before trial after a formal offer was previously rejected, the fee-shifting mechanism may still apply depending on the terms of the eventual settlement relative to the rejected offer. If the settlement amount demonstrates that the rejecting party would have been better off accepting the original offer by more than 25%, the offering party may seek fee-shifting for the post-rejection period. However, the voluntary nature of settlement and the absence of a final judgment can complicate the analysis, and courts evaluate these situations on a case-by-case basis. Senate Bill 68 (April 2025) introduced a new restriction through O.C.G.A. section 9-15-16, which prohibits duplicative recovery of attorneys’ fees, court costs, and litigation expenses under multiple statutory provisions in the same case unless a statute specifically authorizes it. This means a party can no longer stack fee awards under both section 9-11-68 and section 13-6-11 (bad faith litigation fees) in the same case. SB 68 also bars the admission of contingency fee agreements as evidence of the reasonable value of legal services. These provisions apply retroactively to all pending and future cases.
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