CopyCited 63 times | Published | Supreme Court of Georgia | Jun 16, 2014 | 759 S.E.2d 804, 2014 Fulton County D. Rep. 1524
...with his attorneys, the trial court ordered the Department to pay Couch $49,542
in attorney fees – 40% of his total recovery, after appeal, including post-
judgment interest – as well as $4,782 in litigation expenses, pursuant to the
“offer of settlement” statute, OCGA §
9-11-68 (b) (2)....
...eflect that some
of the fees were incurred before the settlement offer was
rejected?
For the reasons discussed below, we hold that the sovereign immunity of the
Department was waived as to the attorney fees award under OCGA §
9-11-68
(b), but that the trial court did not properly calculate the amount of the award.
We therefore affirm the judgment of the Court of Appeals in part, reverse it in
part, and remand the case with direction.
1....
...the amount of $24,000, which the Department rejected. After the
verdict, which was greater than 125 percent of the offer of
settlement, Couch moved for attorney fees and expenses pursuant
2
to OCGA §
9-11-68, the offer of settlement statute, in the amount
of $104,158.79, based on an hourly rate, despite a contingency fee
arrangement for 40 percent of the final recovery....
...at 235 (footnote and citations omitted).1 After holding an
evidentiary hearing, the trial court issued an order denying the Department’s
motion to dismiss, ruling that the State had waived sovereign immunity with
regard to attorney fees awarded under OCGA §
9-11-68 (b)....
...$123,855.65, which included post-judgment interest and court costs. The court
also awarded Couch $4,782 in litigation expenses, for a total award of $54,324.
As noted previously, the Court of Appeals affirmed that award, and we granted
certiorari.
(b) OCGA §
9-11-68, commonly called the “offer of settlement” statute,
1
The underlying facts of the case are recounted more fully in Georgia Department of
Corrections v....
...vil Practice Act (CPA) as part of tort
reform legislation that became effective on February 16, 2005, see Ga. L. 2005,
p. 1, § 5, and was then amended effective April 27, 2006, see Ga. L. 2006, p.
446, § 1.2 As this Court explained in upholding §
9-11-68 against a variety of
constitutional challenges, the “clear purpose” of the statute “is to encourage
litigants in tort cases to make and accept good faith settlement proposals in order
to avoid unnecessary litigation,” thereby ad...
...policy of encouraging negotiations and settlements.’” Smith v. Baptiste,
287
Ga. 23, 29 (694 SE2d SE2d 83) (2010) (citation omitted).
2
We note that Couch’s tort cause of action accrued when he was injured in July 2004, before
the original version of §
9-11-68 (b) was enacted, and that he filed this lawsuit in November 2005,
before the statute was amended to its current form. This Court has held that §
9-11-68 (b) “affects
the rights of parties by imposing an additional duty and obligation to pay an opposing party’s
attorney fees when a final judgment does not meet a certain amount or is one of no liability,” and
thus that the Georgia Constitution’s ban on retrospective application of laws that substantively affect
vested private rights prohibits the application of §
9-11-68 (b) to tort cases that were already pending
when the statute was enacted. Fowler Properties, Inc. v. Dowland,
282 Ga. 76, 77-78 (646 SE2d
197) (2007). See also Mikesell v. RP Motorsports, Inc.,
283 Ga. 476, 476-477 (660 SE2d 534)
(2008). In a divided opinion, the Court of Appeals has held that §
9-11-68 (b) cannot
constitutionally be applied to a case in which the tort cause of action accrued before the statute was
enacted, even if the lawsuit was filed after enactment....
...settled, leaving the issue unresolved. See
Case No. S11G0226. We need not decide any question of retroactivity here, because in the trial
court and on appeal, both the Department and Couch have proceeded on the assumption that the
current version of §
9-11-68 (b) governs this case, and we will do the same....
...4
The statute applies to a written offer to settle a tort claim made more than
30 days after the service of the summons or complaint but not less than 30 days
before trial (or 20 days for a counteroffer). See OCGA §
9-11-68 (a)
(enumerating the requirements for such an offer), (c) (discussing additional
procedures and interpretive rules for offers and their acceptance or rejection).
The subsection of the statute directly at issue in this case, subsection (...
...plaintiff shall be entitled to recover reasonable attorney’s fees and
expenses of litigation incurred by the plaintiff or on the plaintiff's
behalf from the date of the rejection of the offer of settlement
through the entry of judgment.
OCGA §
9-11-68 (b)....
...subsection (b) of this Code
section appl[ies]; provided, however, that if an appeal is taken from such
judgment, the court shall order payment of such attorney’s fees and expenses of
litigation only upon remittitur affirming such judgment.” OCGA §
9-11-68 (d).
There is no question that the preconditions for an award of attorney fees
and litigation expenses under §
9-11-68 (b) were satisfied in this case. On
November 14, 2007, two years after filing his tort suit, Couch made an
indisputably good-faith offer to settle for just $24,000. The Department did not
respond within 30 days, rendering the offer rejected pursuant to §
9-11-68 (c).
As a result, Couch had to continue pretrial litigation for another 16 months and
then try the case before a jury for three days in April 2009....
...The trial resulted in
a verdict and judgment for Couch of $105,417, far greater than 125% of his
rejected offer, and that judgment was sustained despite the Department’s appeal.
Thus, this would seem to be a clear case for an award of attorney fees and
litigation expenses to the plaintiff under §
9-11-68 (b) (2)....
...hat the GTCA’s waiver of sovereign
immunity allowed Couch to bring this tort lawsuit against the Department and
to recover damages for the personal injury he suffered.3 The Department
contends, however, that an award of attorney fees under OCGA §
9-11-68 (b)
does not come within the scope of this waiver....
...including lost wages and economic loss to the person who suffered
the injury, disease, or death; pain and suffering; mental anguish;
and any other element of actual damages recoverable in actions for
negligence.
OCGA §
50-21-22 (3).
Couch contends that §
9-11-68 (b) attorney fees are “[an]other element of
actual damages recoverable in actions for negligence.” He also invokes cases
holding that the constitutional and statutory waiver of sovereign immunity for...
...or
punish, but to compensate an injured party for the costs incurred as a result of
having to seek legal redress for the injured party’s legitimate grievance”).
Citing Fru-Con, the Court of Appeals concluded in this case, “[l]ikewise, OCGA
§
9-11-68 does not provide for an independent cause of action, but merely
establishes circumstances in the event of the rejection of an offer of settlement
under which attorneys fees shall be paid.” Couch,
322 Ga. App. at 238.
OCGA §§
13-6-11 and
9-11-68 (b) are differently worded, however.
Section
13-6-11 expressly makes its litigation expenses “part of the damages”
to be awarded by the jury, and an award under §
13-6-11 must be based on
“conduct arising from the transaction underl...
...is authorized if there exists no bona fide controversy or dispute
regarding liability for the underlying cause of action.
Kent,
274 Ga. at 850 (citation omitted).
11
fees awarded under §
9-11-68 (b) are not identified as “damages”; they relate
entirely to conduct during the course of the litigation; and they are determined
post-judgment by the court rather than during trial by the jury....
...attorney fees only to “the plaintiff,” attorney fees may be awarded under § 9-11-
68 (b) to whichever party’s offer of settlement was rejected – plaintiff and
12
defendant alike. Whether awarded to a plaintiff or a defendant, §
9-11-68 (b)
fees are the same thing, and because attorney fees when awarded to the
defendant under §
9-11-68 (b) are obviously not an element of the “actual
damages” caused by the tort allegedly committed by that defendant, such fees
cannot sensibly be said to come within the scope of §
50-21-22 (3) when
awarded to the plaintiff in the same action.
We therefore agree with the Department that Fru-Con and similar cases
decided under §
13-6-11 are not controlling here, and that an attorney fees
award under §
9-11-68 (b) does not come within the GTCA’s definition of a tort
“claim” because the expended fees are not a “loss.” We also agree with the
Department that §
9-11-68 (b) does not create an independent tort (or other)
cause of action....
...tort action and may be sought only in connection with such an action – a
realization that leads to the conclusion that sovereign immunity is indeed waived
for such awards.
(b) While payments of attorney fees and litigation expenses under
§
9-11-68 (b) are not made as compensation for a tort “claim,” they are made as
13
an incident of a party’s inappropriate conduct in the underlying tort action....
...exclude the state, where it has waived sovereign immunity and allowed a tort
action to proceed against it, to avoid the consequences under the CPA that other
civil litigants face for improper litigation conduct – including an award of
attorney fees and litigation expenses under §
9-11-68 (b) for rejecting a
8
A good example of the interplay between the GTCA and the CPA relates to the time the
state is given to file an answer to the complaint initiating a tort action against it....
...We need not and therefore do not decide in this case whether a judgment in a GTCA case
exceeding the cap of $1 million or $3 million on the state’s liability provided in §
50-21-29 (b) must
be reduced to the cap amount before the court determines under §
9-11-68 (b) if the judgment
exceeds 125% of the offer of settlement....
...See UCF Athletics Assn. Inc. v. Plancher, 121 So3d 616,
617-619 (Fl. 5th Dist. Ct. App. 2013) (addressing this issue in the context of Florida’s offer of
settlement statute). We also need not decide here whether attorney fees and litigation expenses
awarded under §
9-11-68 (b) must be included in the sums subject to the caps on the state’s liability
set forth in §
50-21-29 (b).
18
providing for an award of attorney fees for improper litigation conduct, se...
...19
litigation, not to supplant such provisions, while also demonstrating that the
General Assembly did not view all awards of attorney fees against the state as
forbidden. It would have been easy enough for the General Assembly in
enacting §
9-11-68 in 2005 or in amending the statute in 2006 to exclude
attorney fees awards against the state, but unlike other state legislatures, our
legislature did not do so. Compare, e.g., Tex. R. Civ. P. 167.1 (c) (offer of
settlement statute similar to OCGA §
9-11-68 (b) but specifically excluding
from its ambit “an action by or against the State, a unit of state government, or
a political subdivision of the State”).
We also note that, just a few years before the GTCA was enacted, our
Cou...
...state, see OCGA §
50-21-30 – but the General Assembly did not similarly
prohibit awards of attorney fees against the state for litigation misconduct based
on statutes outside the GTCA.
Finally, we recognize that an award of attorney fees under §
9-11-68 (b)
requires the state to make a payment from the treasury, and that a fundamental
purpose of sovereign immunity is the protection of state funds....
...state treasury to tort liability must . . . be
limited”); In Interest of A.V.B.,
267 Ga. 728, 728 (482 SE2d 275) (1997)
(“[T]he primary purpose of sovereign immunity is to protect state coffers”). As
discussed above, however, an award under §
9-11-68 (b) is not an independent
tort “claim” or a component of tort damages; rather, such awards are best
understood as one of many potential costs associated with tort litigation in
Georgia, and in particular inappropriate conduct during...
...state
23
for the tortious conduct underlying the litigation but instead simply ensure that
the state follows the same rules that all parties must follow when engaging in
civil litigation. Indeed, allowing §
9-11-68 (b) awards against state defendants
ultimately should advance the fundamental purpose of sovereign immunity,
since it is entirely in the interest of the taxpayers who fund the state treasury that
the state act appropriately in litigatin...
...inuing to litigate weak cases
after rejecting reasonable settlement offers.
(c) For these reasons, we hold that sovereign immunity did not
bar an award of attorney fees and litigation expenses against the Department
under OCGA §
9-11-68 (b), and we therefore affirm that part of the Court of
Appeals judgment, albeit it under a different rationale.
3. Because we have concluded that sovereign immunity did not protect
the Department from an award under OCGA §
9-11-68 (b), we must address the
issue of whether the trial court properly calculated the amount of the attorney
fees award.13 We conclude that the trial court (and the Court of Appeals) erred,
13
In the Court of Appeals, the...
...We note that the affidavit submitted by Couch’s attorneys
24
in two different respects.
(a) The trial court concluded that the amount of attorney fees to
be awarded under OCGA §
9-11-68 (b) should be determined by the
contingency fee agreement between Couch and his attorneys, which set the
attorneys’ compensation at 40% of the “final judgment.”14 The court therefore
awarded Couch $49,542 in attorney fees – 40%...
...Couch’s attorneys represented that the contract entitled them to 40% of the “final judgment,” and
the trial court’s order accordingly awarded 40% of Couch’s “ultimate recovery” after appeal.
25
for fees under §
9-11-68 (b), his lawyers submitted evidence that their services
from the time the Department rejected the settlement offer through the judgment
at trial were worth $99,382.50, presenting an affidavit showing that they worked
on the case during...
...or other
indications regarding the value of the attorneys’ professional services actually
rendered. See Brock Built, LLC,
316 Ga. App. at 714-715.
(b) The trial court’s calculation was erroneous in another respect.
Under OCGA §
9-11-68 (b) (2), plaintiffs are not entitled to recover all of their
attorney fees in the case, only the “reasonable attorney’s fees and expenses of
litigation incurred by the plaintiff or on the plaintiff’s behalf from the date of the
re...
...The issue in this case is not when and to
what extent Couch’s attorneys were entitled to recover for their services from
Couch according to their contract, but rather when and to what extent they
performed services so that fees were incurred on Couch’s behalf that he could
recover from the Department according to §
9-11-68 (b)....
...not entitled to collect the amount of fees agreed to under a contingency fee
contract from their client until the conditions of the contract have been met.
Ironically, the analysis that Couch endorses actually would result in no
attorney fees being awarded under §
9-11-68 (b) in this and other contingency
fee cases where the agreement provides that the lawyers are entitled to payment
only after a final judgment has been entered. This is because §
9-11-68 (b)
authorizes an award only of fees incurred “through the entry of judgment” at
trial, not right afterwards and not after appeal – which, according to the trial
court, was the trigger point for the contingency agreement between Couch and
31
his lawyers.15 Couch’s approach also gives no import to the time limitation set
forth in §
9-11-68 (b) and, contrary to the law discussed in the previous
subdivision, places determinative weight on the existence of a contingency fee
agreement in the calculation of the reasonable attorney fees due under the offer-
of-settlement statute....
...value of the lawyer’s services could not be determined based on the contingency
contract. We do not believe the statute bears this interpretation. See generally
Centennial Archaeology, 688 F3d at 678-682.
15
It is clear that “entry of judgment” as used in §
9-11-68 (b) refers to the judgment entered
at trial, because §
9-11-68 (d) (1) says that the court cannot award fees “if an appeal is taken from
such judgment” until the return of the “remittitur affirming such judgment.” See Wheatley v. Moe’s
Southwest Grill, LLC, 580 FSupp2d 1324, 1326 (N.D. Ga. 2008) (rejecting the defendants’ request
for attorney fees under §
9-11-68 (b) to the extent that the fees were incurred on appeal).
32
(c) For these reasons, we reverse the portion of the Court of
Appeals’ judgment affirming the trial court’s c...
...the principles discussed above, of the
reasonable value of the professional services that Couch’s attorneys actually
provided during the period “from the date of the rejection of the offer of
settlement through the entry of judgment.” OCGA §
9-11-68 (b).
Judgment affirmed in part, reversed in part, and case remanded with
direction....
CopyCited 60 times | Published | Supreme Court of Georgia | Mar 15, 2010 | 287 Ga. 23
...CARLEY, Presiding Justice. Salon Baptiste and Cheryl Baptiste (Appellees) filed a complaint for damages against Chuck Smith and WQXI 790 AM (Appellants), based on allegedly defamatory statements made by Smith and broadcast by WQXI. Pursuant to OCGA §
9-11-68(a), Appellants offered to settle the case for $5,000. Appellees did not respond to the offer, which was deemed a rejection under OCGA §
9-11-68(c). The trial court subsequently granted Appellants' motion for summary judgment as to all counts of the complaint. Appellants moved for attorney's fees pursuant to OCGA §
9-11-68(b)(1). After a hearing, the trial court denied the motion for attorney's fees on the ground that OCGA §
9-11-68 violates the Georgia Constitution. This appeal followed. 1. OCGA §
9-11-68 was enacted as part of the Tort Reform Act of 2005. Fowler Properties v. Dowland,
282 Ga. 76, 77(1),
646 S.E.2d 197 (2007). It provides that either party may serve upon the other party a written demand or offer to settle a tort claim for a specified amount of money. OCGA *85 §
9-11-68(a). Moreover, if either party's settlement demand or offer is rejected, that party may be entitled to recover attorney's fees pursuant to OCGA §
9-11-68(b), which provides: (1) If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the de...
...cover reasonable attorney's fees and expenses of litigation incurred by the plaintiff or on the plaintiff's behalf from the date of the rejection of the offer of settlement through the entry of judgment. This Court has previously concluded that OCGA §
9-11-68(b)(1) is unconstitutional as a retrospective law, but has found it unnecessary to pass on other attacks upon the constitutionality of that code section. Mikesell v. RP Motorsports,
283 Ga. 476, 477,
660 S.E.2d 534 (2008); Fowler Properties v. Dowland, supra at 79(2),
646 S.E.2d 197. In this case, the trial court ruled that OCGA §
9-11-68 impedes access to the courts and thus violates Art....
...Accordingly, the trial court clearly erred in finding a "right of access" violation of Art. I, Sec. I, Par. XII. See Santana v. Ga. Power Co.,
269 Ga. 127, 129(4),
498 S.E.2d 521 (1998); Nelms v. Georgian Manor Condo. Assn., supra at 412-413(2), (3),
321 S.E.2d 330. Moreover, OCGA §
9-11-68(b)(1) does not deny litigants access to the courts, but simply sets forth certain circumstances under which attorney's fees may be recoverable....
...plaintiff certain types of evidence). "Therefore, even if a constitutional `right of access to the courts' provision did exist, it would not be applicable here." Couch v. Parker, supra at 582(1),
630 S.E.2d 364. The trial court also found that OCGA §
9-11-68 violates Art....
...where authorized by some statutory provision or by contract. [Cits.]" Ga. Subsequent Injury Trust Fund v. Muscogee Iron Works,
265 Ga. 790-791,
462 S.E.2d 367 (1995). See also Glynn County Fed. Employees Credit Union v. Peagler,
256 Ga. 342, 344(3),
348 S.E.2d 628 (1986). OCGA §
9-11-68 is such a statutory provision authorizing the recovery of attorney's fees under specific circumstances. Because there is no constitutional requirement that attorney's fees be awarded only pursuant to OCGA §
9-15-14 or §
13-6-11, the trial court's finding to the contrary was erroneous. 2. The trial court further ruled that OCGA §
9-11-68 is a special law that violates the uniformity clause of the Georgia Constitution, because it applies only to tort claims, not all civil cases....
...on throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law. . . ." Ga. Const. of 1983, Art. III, Sec. VI, Par. IV(a). Contrary to the ruling of the trial court, OCGA §
9-11-68 is not a special law affecting only a limited activity in a specific industry during a limited time frame....
...all persons of a designated class is a general law within the meaning of the Constitution, provided that the classification thus made is not arbitrary or unreasonable." [Cit.] State v. Martin,
266 Ga. 244, 246(4),
466 S.E.2d 216 (1996). Because OCGA §
9-11-68 applies uniformly throughout the State to all tort cases, it is a general law. The clear purpose of this general law is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation. See OCGA §
9-11-68(b)(1), (2), (d)(2) (party rejecting a settlement offer may be liable for attorney's fees, but court may determine that an offer was not made in good faith and disallow an award of attorney's fees)....
...Macon Water Auth.,
273 Ga. 436, 437,
542 S.E.2d 106 (2001). As long as such a law operates uniformly throughout the State, it "is still a general law. [Cit.]" McAllister v. American Nat. Red Cross,
240 Ga. 246, 248(2),
240 S.E.2d 247 (1977). Accordingly, OCGA §
9-11-68 does not violate the uniformity clause of the Georgia Constitution. Because the trial court based its order denying the motion for attorney's fees on erroneous findings that OCGA §
9-11-68 is unconstitutional, that order must be reversed. 3. Appellees have argued for the first time on appeal that the current version of OCGA §
9-11-68 became effective after this lawsuit was filed, and that retroactive application of it to this case is unconstitutional....
...Because Appellees did not raise this constitutional issue in the trial court and obtain a distinct ruling on it from that court, the issue cannot be considered for the first time in this Court. See Kromer v. Bechtel,
289 Ga.App. 306(1),
656 S.E.2d 910 (2008) (unconstitutional retroactivity claim regarding OCGA §
9-11-68 "cannot be considered when asserted for the first time on appeal")....
...Nothing in the Fourteenth Amendment forbids a like procedure here. The assurance of due process has not stereotyped bills of costs at the rates known to the [Founding] Fathers."). Appellees do not raise such challenges in this case, perhaps because they would obviously fail. The fee-shifting provisions of OCGA §
9-11-68 do not flatly deny anyone access to the courts, as statutes of limitation and repose and other restrictions that have survived judicial scrutiny can be said to do. Litigants remain free to file and defend tort *94 cases, even if they receive a settlement offer and even if they elect to reject the offer. There is also little question that OCGA §
9-11-68 is rationally related to the State's legitimate objective of "encourag[ing] litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation." Majority Op. at p. 88. Nor can a credible argument be made, at least on the record in this case, that the statute substantially impedes, or "chills," litigants from filing and pursuing their claims, in violation of due process or equal protection. OCGA §
9-11-68 was originally enacted in 2005....
...eal of which they did not pursue. (That final judgment, by the way, determines as a matter of fact and law that the value of appellees' claims was zero, so that appellants' settlement offer of $5,000 was reasonable.) Appellees did not challenge OCGA §
9-11-68 or contend that it had affected their case until after the merit (or lack of merit) of their claims had been determined through the usual court processes and until after an award of attorney fees was entered. [5] In short, there is no evidence that these appellees' rights were chilled in the slightest. Consequently, their facial attack on the constitutionality of OCGA §
9-11-68 must fail, as it is clear that the statute may be constitutionally applied in many cases, such as this one and others in which tort plaintiffs (or defendants) are demonstrably undeterred from pursuing (or defending) claims, as well as the...
...eep."'" Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 449,
128 S.Ct. 1184, 1190,
170 L.Ed.2d 151 (2008) (citations omitted). That has not been done in this case. Like the trial court's, the dissent's assertion that OCGA §
9-11-68 will have a broad "chilling" effect on tort litigants is entirely speculative, unsupported by the record or other evidence and contradicted by the fact that thousands of tort cases continue to be filed and defended in the courts of this State....
...s). None of the cases in the Tift v. Towns line held that such a statute might be held unconstitutional; all of those cases simply applied the laws then on the books. We now have a new statute, first enacted by the General Assembly in 2005. See OCGA §
9-11-68....
...at, constitutional provision as well as our Bloomfield/Nelms line of precedent. 6. Should a case be brought in which it is established that a party was actually precluded from filing, defending, or maintaining a meritorious tort case because of OCGA §
9-11-68, we can address any constitutional claims raised in that concrete setting....
...87, the statute at issue here does not violate it. This is no way to interpret our State's constitution. A right to access the courts is too important, too fundamental to the maintenance of all our other rights, to be accorded such casual treatment. Whether OCGA §
9-11-68(b)(1) violates our right to access the courts is a close question on which reasonable minds may well disagree....
...There is thus no basis to conclude that the convention's approval of Mr. Tift's stand-alone right to access the courts paragraph was based solely on the reason Mr. Small claims was set forth by Mr. Tift. [14] I respectfully disagree with the majority that OCGA §
9-11-68(b)(1) does not violate Art. I, Sec. I, Par. XII. Unlike parties subject to statutory penalties under OCGA §§
9-15-14 and
13-6-11 because of their own actions in bringing frivolous suits or behaving stubbornly and unreasonably when litigating matters in the courts, OCGA §
9-11-68(b)(1) penalizes plaintiffs with meritorious causes of action for an impossibility, namely, their failure to see into the future so as to calculate the precise amount a factfinder may award them for the damages they reasonably believed they sustained at the hands of the defendants. Yet this impossible act is required of plaintiffs by OCGA §
9-11-68(b)(1) in order for them to decide whether to accept or reject a defendant's settlement offer; this same impossibility applies to defendants under OCGA §
9-11-68(b)(2). No party intending to file a cause of action in tort can foresee whether she will recover "enough" money to avoid the effect of OCGA §
9-11-68(b)(1). The chilling consequence of the impossible task OCGA §
9-11-68(b)(1) places on a person contemplating accessing a court to prosecute his or her legitimate cause of action is amply demonstrated by the facts in this case, in which plaintiffs, stung by the negative comments broadcast throughout metro Atlanta by the father of an unhappy customer, now face paying a staggering $53,087.15 in attorney fees and expenses because of the legal redress they sought. OCGA §
9-11-68(b)(1) does not merely "set forth certain circumstances under which attorney's fees may be recoverable" as the majority holds, Maj. Op., p. 10: rather, as the trial court correctly held, OCGA §
9-11-68(b)(1) serves to impede, if not outright deter, plaintiffs with meritorious causes of action from filing suit to obtain judicial resolution of their grievances because of the financial peril in which that statute places them.
CopyCited 42 times | Published | Supreme Court of Georgia | Jun 4, 2007 | 282 Ga. 76
...Thomas Square, Ltd. (hereafter "Fowler Properties") for damages she allegedly sustained when she slipped and fell on ice in a parking lot owned by the defendants. [1] On July 29, 2005, Fowler Properties made an "offer of judgment" pursuant to OCGA §
9-11-68 seeking to settle plaintiff's claims for $20,000....
...rties. The case went to trial and a jury reached a verdict in favor of Fowler Properties. Dowland filed an out-of-time extraordinary motion for new trial. Fowler Properties filed a motion for attorney fees and expenses of litigation pursuant to OCGA §
9-11-68, supported by affidavits establishing that defendants had incurred $9,326.00 in defense of the litigation from the time frame beginning thirty days after the submission of the offer of judgment to final judgment. In a single order, the trial court denied Dowland's motion for new trial, and despite a finding that that the submission of attorney fees was "reasonable," the court denied the request, ruling sua sponte that OCGA §
9-11-68 is unconstitutional on a variety of grounds. In Case No. S07A0342, Fowler Properties appeals the trial court's determination that OCGA §
9-11-68 is unconstitutional; in Case No. S07A0777, Dowland appeals from the denial of her motion for new trial. For the reasons which follow, we affirm both cases. Case No. S07A0342 1. OCGA §
9-11-68, was enacted as part of the Tort Reform Act of 2005, Ga. L.2005; it became effective on February 16, 2005, during the pendency of this litigation. The Code section was amended by Ga. L.2006, p. 589, § 1/HB 239, effective April 27, 2006. In pertinent part, OCGA §
9-11-68(b)(1) provides: If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant ....
...from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement. Fowler Properties submits that the trial court erred in ruling that OCGA §
9-11-68 violates Art....
...54(3),
365 S.E.2d 273 (1988). When Dowland instituted her tort action on December 18, 2002, the possibility that she may be responsible for paying the opposing party's attorney fees and expenses of litigation by rejecting an offer of settlement did not exist because OCGA §
9-11-68 did not take effect until more than three years later. OCGA §
9-11-68(b)(1) does not merely prescribe the methods of enforcing rights and obligations, but rather affects the rights of parties by imposing an additional duty and obligation to pay an opposing party's attorney fees when a final judgment does not meet a certain amount or is one of no liability....
...of our constitutional provision barring retroactive laws." Hargis v. Dept. of Human Resources,
272 Ga. 617, 618,
533 S.E.2d 712 (2000). See also Canton Textile Mills, Inc. v. Lathem,
253 Ga. 102(1),
317 S.E.2d 189 (1984). 2. Our conclusion that OCGA §
9-11-68 is unconstitutional as a retrospective law "renders it unnecessary to pass upon the other ground[s] of attack upon the constitutionality of this act." Floyd County v....
...We find no error in the jury instruction as it relates to the duty of ordinary care. Judgments affirmed. All Justices concur. NOTES [1] A third named defendant, Waffle House, Inc., was dismissed as a party to the action by consent order. [2] The preamble to Senate Bill 3 states the legislative intent that OCGA §
9-11-68 is among those provisions of the Act that "shall apply to causes of action pending on its effective date, unless such application would be unconstitutional." [3] The evidence had not yet been transcribed....
CopyCited 12 times | Published | Supreme Court of Georgia | Mar 8, 2022 | 313 Ga. 420
...when that party has specifically requested them and when the jury
finds that the opposing party “has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff unnecessary trouble
and expense” prior to the initiation of litigation. The second, OCGA
§
9-11-68 (b) (2), provides a sanction in the form of attorney fees and
litigation expenses incurred after the failure to accept what the
statute defines as a reasonable settlement offer. In Junior v.
Graham,
357 Ga. App. 815, 817-818 (849 SE2d 536) (2020), the
Court of Appeals determined that the sanction contemplated by
OCGA §
9-11-68 (b) (2) necessarily includes a set-off for the amount
of damages awarded under OCGA §
13-6-11.
We granted certiorari to consider whether a plaintiff may
receive a full recovery under both statutory provisions....
...Accordingly, we reverse the decision of the Court of
Appeals and remand this case with direction that the case be
remanded to the trial court for reconsideration of the plaintiff’s
claim for attorney fees and litigation expenses pursuant to OCGA §
9-11-68 (b) (2) in a manner consistent with this opinion.
1....
...After Junior filed suit,
1 The facts relevant to our analysis are not in meaningful dispute.
2
but before trial, Junior served Graham with a document styled
“Plaintiff’s Offer to Settle Tort Claim to Defendant Pursuant to
OCGA §
9-11-68.” Junior’s offer proposed to settle all of his claims
against Graham for $600,000. The offer was rejected by operation of
law after Graham failed to accept it within 30 days of its issuance.
See OCGA §
9-11-68 (c) (“An offer [of settlement] that is neither
withdrawn nor accepted within 30 days shall be deemed rejected.”).
The case proceeded to trial, where the jury found in Junior’s
favor and awarded him $3,000,000 in compensatory...
...Because the jury’s award of compensatory damages exceeded
3
Junior’s offer to settle the suit for $600,000 by more than 125
percent, he filed a post-trial motion for attorney fees and litigation
expenses under OCGA §
9-11-68....
...o
recover reasonable attorney’s fees and expenses of
litigation incurred by the plaintiff or on the plaintiff’s
behalf from the date of the rejection of the offer of
settlement through the entry of judgment.
OCGA §
9-11-68 (b) (2). Graham opposed the motion, arguing that
Junior’s settlement offer was not made in good faith, and that an
award under OCGA §
9-11-68 would give Junior a prohibited “double
recovery.”
The trial court, without holding an evidentiary hearing, denied
Junior’s motion and concluded that “allowing [Junior] a further
award of attorney’s fees would permit a double recovery.” The court
reasoned that even though OCGA §§
9-11-68 (b) (2) and
13-6-11
contemplate awards based on different conduct, the total of attorney
4
fees and litigation expenses used to measure the awards was
incurred as to the same cause of action agains...
...The court also determined that Junior had already been “fully
compensated” for the entire amount of attorney fees and litigation
expenses that he incurred in this lawsuit. On that basis, the court
determined that no additional recovery was permitted under OCGA
§
9-11-68 (b) (2).2
Junior appealed the denial of his request for attorney fees and
litigation expenses under OCGA §
9-11-68 (b) (2), arguing that the
trial court erred by determining that the jury award under OCGA §
13-6-11 precluded the imposition of an award under OCGA § 9-11-
68 (b) (2)....
...The Court of Appeals affirmed based on different
reasoning. See Junior,
357 Ga. App. at 817-818.
Specifically, the Court of Appeals rejected the trial court’s
2 The trial court did not decide if Junior’s offer of settlement was made
in good faith. See OCGA §
9-11-68 (d) (2) (“If a party is entitled to costs and
fees pursuant to the provisions of this Code section, the court may determine
that an offer was not made in good faith in an order setting forth the basis for
such a determination....
...In such case, the court may disallow an award of
attorney’s fees and costs.”). That issue may be addressed on remand.
5
rationale that receiving attorney fee and litigation expenses awards
under both OCGA §
13-6-11 and OCGA §
9-11-68 (b) (2) in the same
proceeding would necessarily amount to a double recovery. Instead,
it affirmed the trial court’s ruling based on the conclusion that
Junior could not demonstrate that he was entitled to an award
under OCGA §
9-11-68 (b) (2) because he had no longer “incurred”
the $1,251,554.95 in attorney fees and litigation expenses as he had
been awarded that amount as damages under OCGA §
13-6-11 and
therefore had no uncovered expenses to which a sanction would
apply. Junior,
357 Ga. App. at 818 (quoting OCGA §
9-11-68 (b) (2)).
The Court of Appeals reasoned that “[i]n some instances, . . . a
claimant may have incurred fees after a jury verdict but prior to
entry of the final judgment by the trial court, in which case a
subsequent award under OCGA §
9-11-68 (b) by a judge for such fees
would be appropriate.” Id. But because the Court of Appeals
determined that “Junior . . . [did] not contend that he incurred such
fees,” it affirmed the ruling of the trial court denying Junior’s motion
for attorney fees and litigation expenses under OCGA §
9-11-68 (b)
6
(2). Id. at 818.
We granted Junior’s petition for a writ of certiorari to consider
whether OCGA §
9-11-68 (b) (2) requires the trial court to deduct
from the sanction any amount awarded by the jury as damages
under OCGA §
13-6-11....
...rovide
for or compel any such set-off because they address different conduct
of the defendant despite using a similar measure — attorney fees
and litigation expenses — to calculate their respective amounts.
2. (a) In interpreting OCGA §§
9-11-68 (b) (2) and
13-6-11,
we must presume that the General Assembly meant what
it said and said what it meant....
...has specially pleaded and has made prayer therefor and
where the defendant has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense, the jury may allow
them.
OCGA §
9-11-68, commonly called the “offer of settlement”
statute, was added to Georgia’s Civil Practice Act as part of “tort
3 The basic provisions of OCGA §
13-6-11 have existed in some form since
1863, see Ga....
...22, § 13.
8
reform” legislation that became effective on February 16, 2005, see
Ga. L. 2005, p. 1, § 5, and was then amended effective April 27, 2006,
see Ga. L. 2006, p. 446, § 1. Relevant to the issue before us, OCGA §
9-11-68 (b) (2) provides:
If a plaintiff makes an offer of settlement which is
rejected by the defendant and the plaintiff recovers a final
judgment in an amount greater than 125 percent of such
offer of settlement,...
...recover reasonable attorney’s fees and expenses of
litigation incurred by the plaintiff or on the plaintiff’s
behalf from the date of the rejection of the offer of
settlement through the entry of judgment.
Further, OCGA §
9-11-68 (d) (1) provides that “[t]he court shall
order the payment of [such] fees and expenses . . . upon receipt of
proof that the judgment is one to which the provisions of either
[OCGA §
9-11-68 (b) (1) or (2)] apply[.]”4 For a plaintiff seeking to
recover under this provision, the only prerequisites for recovery are
4 Paragraph (b) (1), which is not at issue in this case, provides a remedy
in cases where the defendant makes an offer of settlement that is rejected by
the plaintiff....
...offer of settlement[,]” the defendant is entitled to an award of “reasonable
attorney’s fees and expenses of litigation incurred by the defendant or on the
defendant’s behalf from the date of the rejection of the offer of settlement
through the entry of judgment[.]” OCGA §
9-11-68 (b) (1).
9
the making of a good faith offer of settlement that complied with the
requirements of OCGA §
9-11-68 (a) (which sets forth the procedural
requirements for invoking the statute), the rejection of the offer by
the defendant, and the plaintiff’s recovery of a final judgment in an
amount greater than 125 percent of that offer. See OCGA §
9-11-68
(b) (2), (d) (1)-(2). As this Court has previously explained, the “clear
purpose” of OCGA §
9-11-68 “is to encourage litigants in tort cases
to make and accept good faith settlement proposals in order to avoid
unnecessary litigation,” thereby advancing “this State’s strong
public policy of encouraging negotiations and settlements.” (Citation
and punctuation omitted.) Smith v. Baptiste,
287 Ga. 23, 29 (2) (694
SE2d 83) (2010).
(b) Graham argues that Junior cannot collect attorney fees and
litigation expenses under both OCGA §§
13-6-11 and
9-11-68 (b) (2)
because doing so would constitute an impermissible double recovery.
We disagree.
Graham is correct that Georgia public policy generally
prohibits a plaintiff from a double recovery of compensatory
10
damages, as we explained in Georgia Northeastern Railroad, Inc....
...ees and litigation expenses
as part of damages. As we have previously explained, “damages
allowed under [OCGA §
13-6-11] are compensatory.” Ga. Dept. of
Corrections v. Couch,
295 Ga. 469, 474 (2) (a) (759 SE2d 804) (2014).
In contrast, OCGA §
9-11-68 (b) (2) provides a sanction for litigation
conduct.
[A]n award under OCGA §
9-11-68 (b) is not an
independent tort “claim” or a component of tort damages;
rather, such awards are best understood as one of many
potential costs associated with tort litigation in Georgia,
and in particular inappropriate conduct during such
litigation.
Couch,
295 Ga. at 480 (2) (b). Thus, an award of attorney fees and
litigation expenses under OCGA §
9-11-68 (b) is properly understood
as a sanction that requires “the misbehaving party to pay the
opposing party’s resulting attorney fees and litigation expenses.” Id.
at 481 (2) (b).
Moreover, there are other distinct differences between these
13
statutory provisions.
OCGA §§
13-6-11 and
9-11-68 (b) are differently worded.
....
...and an award under OCGA §
13-6-11 must be based on
conduct arising from the transaction underlying the cause
of action being litigated, not conduct during the course of
the litigation itself.[5] By contrast, attorney fees awarded
under OCGA §
9-11-68 (b) are not identified as “damages”;
they relate entirely to conduct during the course of the
litigation; and they are determined post-judgment by the
court rather than during trial by the jury.
(Citations and punctuation omitted.) Couch,
295 Ga. at 475 (2) (a).
While OCGA §
13-6-11 permits a jury to award fees and expenses as
part of damages, OCGA §
9-11-68 (d) (1) requires that such fees be
awarded by the trial court after the entry of judgment when the
statutory conditions are met.
It is also clear from the broader structure of OCGA §
9-11-68
that the General Assembly has contemplated in other instances that
5 As we have recently noted in regard to OCGA §
13-6-11, “[p]ut another
way, the element of bad faith, stubborn litigiousness, or unnecessary trouble
‘must...
...350, 359 (3) (862 SE2d 295) (2021).
14
an award of attorney fees and litigation expenses under one statute
might be offset by a similar recovery under another statute or that
recovery under one statute bars recovery under the other altogether.
Thus, OCGA §
9-11-68 (e) provides for an award of attorney fees and
litigation expenses to the prevailing party where “the opposing party
presented a frivolous claim or defense.”6 However, paragraph (e) (3)
6 OCGA §
9-11-68 (e) provides:
Upon motion by the prevailing party at the time that the
verdict or judgment is rendered, the moving party may request
that the finder of fact determine whether the opposing party
presented a frivolous claim or defense....
...interposed for delay or harassment;
(2) Damages awarded may include reasonable and
15
expressly prohibits recovery under both that provision and OCGA §
9-15-14.7 Both OCGA §§
9-11-68 (e) and
9-15-14 address similar
necessary attorney’s fees and expenses of litigation; and
(3) A party may elect to pursue either the procedure
specified in this subsection or the procedure specif...
... claims of frivolous litigation, and the General Assembly specified
that “[a] party may elect to pursue either the procedure specified in
this subsection or the procedure specified in Code section
9-15-14,
but not both.” (Emphasis supplied.) OCGA §
9-11-68 (e) (3).
No such limitation is set forth in OCGA §
9-11-68 (b) (2) with
regard to OCGA §
13-6-11, nor does OCGA §
13-6-11 contain such a
proviso....
...However, when a case is appealed from the
magistrate court, the appellee may seek litigation expenses
incurred below if the appeal lacks substantial justification.
17
Assembly did not mean an award of fees and expenses under OCGA
§
13-6-11 to limit an award under OCGA §
9-11-68 (b) (2) or to
require the party seeking attorney fees and litigation expenses to
choose between those provisions.8
(c) Turning to the reasoning of the Court of Appeals, the court
misinterpreted the language of OCGA §
9-11-68 (b) in determining
that Junior could not recover fully under both statutory provisions.
Specifically, the Court of Appeals determined that because Junior
had been awarded attorney fees and litigation expenses under
OCGA §
13-6-11, “those costs had been compensated” and were no
longer “incurred” within the meaning of OCGA §
9-11-68 (b). Junior,
357 Ga. App. at 817-818. This is incorrect.
As explained above, OCGA §
9-11-68 (b) (2) provides that if
other statutory conditions are met, then the plaintiff is “entitled to
8 We note that the Court of Appeals has summarily held that recovery
under OCGA §§
9-15-14 and
13-6-11 “would constitute an impermissible double
recovery.” Roofers Edge, Inc....
...2019), and the online
Merriam-Webster Dictionary, respectively). The court then applied
this present-tense definition to cover only attorney fees and
litigation expenses owed or unsatisfied as of the time the plaintiff
files his motion under OCGA §
9-11-68 (b) (2). But OCGA §
9-11-68
(b) (2) speaks of attorney fees and expenses of litigation “incurred”
— past tense....
...Here, the fact that
Junior was compensated for his attorney fees and litigation
expenses through an award of damages under OCGA §
13-6-11 did
not change the fact that those fees and expenses had been incurred
as the measure of the sanction to which he could be entitled under
19
OCGA §
9-11-68 (b) (2). And, as discussed above, nothing in OCGA
§
9-11-68 (b) allows or requires the trial court to consider whether
an award was made under OCGA §
13-6-11 when deciding the
availability of attorney fees and litigation expenses under OCGA §
9-11-68 (b) (2). Accordingly, the Court of Appeals wrongly concluded
that Junior had not incurred any attorney fees and litigation
expenses within the meaning of OCGA §
9-11-68 (b) (2) because he
had received an award under OCGA §
13-6-11.
For these reasons, the judgment of the Court of Appeals is
reversed. The case is remanded to the Court of Appeals with
direction to remand the case to the trial court for reconsideration of
Junior’s motion for attorney fees and litigation expenses under
OCGA §
9-11-68 (b) (2) consistent with this opinion. See also Couch,
295 Ga. at 482-487 (3) (discussing method of calculating amount of
award under OCGA §
9-11-68 (b)).
Judgment reversed and case remanded with direction....
CopyCited 11 times | Published | Supreme Court of Georgia | Mar 15, 2023 | 316 Ga. 44
...469 (759 SE2d 804) (2014), in which
we evaluated what kind of evidence was necessary to prove the
58 This was calculated based on the jury’s verdicts with the $250,000
limit on punitive damages applied, see OCGA §
51-12-5.1 (g).
105
amount of attorney fees under OCGA §
9-11-68 when the party
seeking fees signed a contingency-fee agreement....
...More specifically,
Taylor points out that the attorney fee award at issue in this case
was made under OCGA §
13-6-11, and that the text of OCGA §§ 9-
11-68 and
13-6-11 differs in the way it describes the attorney fees
that can be awarded. Compare OCGA §
9-11-68 (providing for the
recovery of “reasonable attorney’s fees”) with OCGA §
13-6-11
(providing for the recovery of “[t]he expenses of litigation”)....
...rity empowers the [General
Assembly] to abrogate constitutional rights that may inhere in common law
causes of action”).
159
295 Ga. 469 (759 SE2d 804) (2014), a case that dealt with attorney
fees under OCGA §
9-11-68....
...790, 790-791 (462 SE2d 367) (1995); Glynn County Fed. Employees Credit
Union v. Peagler,
256 Ga. 342, 344 (3) (348 SE2d 628) (1986); Bowers v. Fulton
County,
227 Ga. 814, 815 (1) (183 SE2d 347) (1971); Horton v. Dennis,
325 Ga.
App. 212, 215 (750 SE2d 493) (2013).
91 See, e.g., OCGA §§
9-11-68 (b) (“reasonable attorney’s fees and
expenses of litigation” incurred during a specified period in the case of certain
offers of settlement rejected by the opposing party in civil litigation);
9-15-14
(“reasonable and necessary at...
...n, which
may provide for pro bono representation (no fees), a flat rate, an
hourly rate, a contingent fee (usually a percentage of the monetary
recovery for the litigant), or some other arrangement between
attorney and client.
Unlike OCGA §
9-11-68, the Code section at issue in Couch,
and many other statutes that provide for attorney fee awards, OCGA
§
13-6-11, does not modify the term “the expenses of litigation” with
“reasonable” or any similar term.93 Likewise, the pre...
...Title 7, Chapter IX,
§ 2883 (same).
163
Georgia94 have never modified the term “the expenses of litigation.”
The General Assembly found it proper to provide only for reasonable
attorney fees in OCGA §§
9-11-68 (b),
9-15-14,
10-1-764, and others,
but brought forward the unrestricted term “the expenses of
litigation” in OCGA §
13-6-11 and its predecessors in each Code
revision since 1860....
CopyCited 11 times | Published | Supreme Court of Georgia | Mar 18, 2011 | 288 Ga. 790, 2011 Fulton County D. Rep. 739
...s associated with constructing a house on a next-door lot caused excessive storm water runoff onto the O'Learys' property in 2004-2005. In October 2006, prior to the trial of the case, appellees offered the O'Learys a settlement of $40,000. See OCGA §
9-11-68(a)....
...[1] The O'Learys declined the offer, and *355 the case was tried before a jury which returned a defense verdict. A final judgment based on the verdict was entered on October 4, 2007, and the O'Learys timely moved for a new trial on October 29. Appellees moved to enforce the offer of settlement pursuant to OCGA §
9-11-68 and moved for attorney's fees pursuant to OCGA §
9-15-14(a) and (b)....
...After holding a hearing, the trial court denied the O'Learys' motion for new trial on March 9, 2009. On December 31, 2009, the trial court issued an order denying any award of fees under OCGA §
9-15-14, but awarding reasonable fees and expenses totaling $60,291.52 pursuant to OCGA §
9-11-68(b)(1)....
...ime for appeal. OCGA §
5-6-38(a). However, as soon as the court issued its order disposing of the motion for new trial, the thirty-day time period to file a notice of appeal began to run. Id. The appellees' post-judgment motions for fees under OCGA §
9-11-68 and
9-15-14 did not toll the time for the O'Learys to appeal from the March 2009 order denying their motion for new trial....
...without jurisdiction to review the propriety or substance of that order. Veasley v. State,
272 Ga. at 838,
537 S.E.2d 42. The only appealable order before the Court is the December 31, 2009 order awarding attorney fees and expenses pursuant to OCGA §
9-11-68....
...Accordingly, the Court will not consider the enumerated errors associated with the denial of the O'Learys' motion for a new trial. 2. In Case No. S10A1443, the O'Learys opine that the trial court erred when it did not apply the original version of OCGA §
9-11-68 (2005) [3] which was in effect at the time the action was filed in August 2005. At the time appellees made their settlement offer in October 2006 and at the time the offer stood rejected 30 days later, the newly amended version of OCGA §
9-11-68 (2006) [4] was in effect, and that is the version *356 of the law which the trial court applied....
..., because under either version of the statute the O'Learys were liable for the appellees' reasonable fees and expenses from the date the offer of settlement is rejected. Therefore, the trial court did not err when it applied the 2006 version of OCGA §
9-11-68....
...on that statute to deny cross-appellants fees under OCGA §
9-15-14. Accordingly, cross-appellants' enumerations of error cannot be sustained and the judgment of the trial court is affirmed. Judgment affirmed. All the Justices concur. NOTES [1] OCGA §
9-11-68(a) provides in pertinent part as follows: [(a) At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon t...
...court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly. . . .] [2] OCGA §
9-11-68(b)(1) provides as follows: (b)(1) If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or...
...t is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement. [5] Consequently, we need not address the O'Learys' contentions regarding the constitutionality of the 2005 version of OCGA §
9-11-68.
CopyCited 5 times | Published | Supreme Court of Georgia | Nov 17, 2014 | 765 S.E.2d 921
...Court of Georgia
Decided: November 17, 2014
S14A1680. CRANE COMPOSITES, INC. v. WAYNE FARMS, LLC et al.
THOMPSON, Chief Justice.
The question for decision in this case is whether OCGA §
9-11-68, a tort
reform, fee-shifting statute, can be applied to a negligence action in which the
injury occurred prior to the effective date of the statute, but in which the action
was filed after that date....
...Roughly three years
later, Wayne Farms and its insurers filed suit against Crane Composites, Inc.
(“Crane”), which manufactured interior panels used in the plant, alleging Crane’s
negligence caused the fire to spread extensively. In the meantime, the legislature
enacted OCGA §
9-11-68 (b) (1), which reads, in part:
If a defendant makes an offer of settlement which is rejected
by the plaintiff, the defendant shall be entitled to recover
reasonable attorney's fees and expenses of li...
...was deemed rejected.2 On May 30, 2012, a jury returned a verdict in Crane’s
favor, absolving Crane of liability. Crane then sought to recover attorney fees
and costs from Wayne Farms. The trial court denied Crane’s request, relying on
L. P. Gas, supra, which held that OCGA §
9-11-68 could not be applied in a
negligence case where the underlying injury occurred prior to the effective date
of the statute....
...ed by the offeree was
not at least 25 percent more favorable than the last offer, the offeree shall pay
the offeror's reasonable attorney's fees and costs incurred after the rejection of
the last offer.
2
See OCGA §
9-11-68 (c).
2
transferred the case to this Court pursuant to Article VI, Section V, Paragraph V
of the Georgia Constitution of 1983.
In Fowler Properties v. Dowland,
282 Ga. 76 (646 SE2d 197) (2007),
plaintiff sued defendants for damages she allegedly sustained as a result of a slip
and fall in defendants’ parking lot. The suit was filed in 2002. In 2005,
following the enactment of OCGA §
9-11-68, defendants made an offer to settle
the case for $20,000. Plaintiff rejected the offer and the case went to trial. After
the jury rendered a verdict in favor of defendants, defendants moved for attorney
fees pursuant to OCGA §
9-11-68....
...When Dowland instituted her tort action on December
18, 2002, the possibility that she may be responsible for paying the
opposing party's attorney fees and expenses of litigation by rejecting
an offer of settlement did not exist because OCGA §
9-11-68 did not
take effect until more than three years later. OCGA §
9-11-68 (b) (1)
3
does not merely prescribe the methods of enforcing rights and
obligations, but rather affects the rights of parties by imposing an
additional duty and obligation to...
...at 78 (emphasis supplied).
Thereafter, in L. P. Gas, supra, a majority of the Court of Appeals held that
Fowler was applicable in a negligence case in which, like the case at bar, the
underlying injury occurred prior to the effective date of OCGA §
9-11-68, but
suit was filed after the effective date....
...statute acts as a substantive law and the substantive rights of the parties were
fixed when the injury occurred. This was incorrect because when OCGA § 9-11-
68 is applied, the substantive rights of the parties are not fixed before the lawsuit
is filed.3
It is true that OCGA §
9-11-68 created substantive rights and that,
3
We granted a petition for a writ of certiorari in that case, L....
... lawsuit had been filed after the effective date, notwithstanding the fact that the
injury occurred prior to the effective date.
Turning now to this case, we find that, although the underlying injury
occurred before the effective date of OCGA §
9-11-68, the offer-of-settlement
statute properly applies prospectively because the lawsuit was commenced after
the effective date.
Judgment reversed....
