Georgia's Offer of Settlement Statute (OCGA § 9-11-68): Revisions and Cases

through 2018

Hugh C. Wood, Esq.

Wood & Meredith, LLP
3756 LaVista Road: Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068

Admitted: GA, VA and WV.

 Georgia's Offer of Settlement Statute (OCGA § 9-11-68):
Revisions and Cases through 2018

Hugh C. Wood, Esquire, Atlanta, Georgia.

I. OCGA § 9-11-68, Georgia's Offer of Settlement Statute

A. The Offer of Settlement Statute: OCGA § 9-11-68

B. The Mechanics of the Statute

C. The Good Faith Defense

D. The Jury Homolog of OCGA § 9-15-14

II. Recent Georgia cases interpreting § 9-11-68

A. 2018 Cases

1. The Coastal Bank v. Rawlins, ___ Ga.App.___, ___S.E.2d___,

2018 WL 5317463 (October 29, 2018).

2. Hillman, et al. v Bord, et al., ___ Ga.App.___, 820 S.E.2d 482

(A18A1045) (October 18, 2018).

B. 2017 Cases

1. The OCGA § 9-11-68. Ten (10) Million Dollar Hammer: 2017

revealed yet another case where Plaintiffs forced a settlement
based on the threat of a very large OCGA § 9-11-68 potential
award.

2. Strategic Law, LLC v. Pain Management & Wellness Centers of

Georgia, LLC, et al., Court of Appeals of Georgia A17A0720 (2017
WL 4856019) (October 27, 2017).

3. Stevens v. Food Lion, LLC, 341 Ga. App. 644, 801 S.E. 2d 340
(2017).

4. An OCGA § 9-11-68 FORM Appears in Frank E. Jenkins, III and

Wallace Miller, III. Ga. Automobile Insurance Law § 58:35 (2017–
2018 Edition). Defendant's OCGA § 9-11-68 Form 1.
 C. 2016 Cases

1. Richardson v. Locklyn, 339 Ga. App. 457, 793 S.E.2d 640 (2016)

2. Fla. Stat. § 768.79 Offer of Judgment and Demand for

Judgment

3. Assocs. v. Rubinson, 784 So. 2d 1135, 1137 (Fla. Dist. Ct. App.
2000)

4. Pickett v. R.J. Reynolds Tobacco Co., M.D.Fla.2013, 948

F.Supp.2d 1314, affirmed 564 Fed.Appx. 981, 2014 WL 1775881

5. OTS, Inc. et al. v. Weinstock & Scavo, P. C. et al., 339

Ga.App. 511, 793 S.E.2d 672 (2016) [A16A1449 A16A1450,
November 16, 2016. 2016 WL 6790666]

6. Time Limit Federal Court. Fourteen (14) days to Seek Fees

7. Jesus Camacho, et al v. Nationwide, 11th Cir., June 23, 2016 [2016

WL 3059833]

D. 2015 Cases

1. Alessi v. Cornerstone Associates, Inc., 334 Ga. App. 490, 780

S.E.2d 15 (2015)

2. Tiller v. RJJB Associates, LLP, 332 Ga. App. 622, 770 S.E.2d 883
(2015)

3. Bell v. Waffle House, Inc., 331 Ga. App. 443, 771 S.E.2d 132
(2015)

III. INSURING AGAINST OCGA § 9-11-68

A. The Risk is Real: The Outcome Unpredictable

B. Shift the Risk of Loss: Private Contracts concerning Attorney’s

Fees – Florida’s Experience

C. Florida Considers this Contract to Be Private Specialty Insurance

D. Georgia Should Follow Florida’s Lead

IV. Important Cases Interpreting OCGA § 9-11-68

A. Paying a big firm's fee in a plaintiff's loss; Gowen Oil Company

B. Potential bad press associated with seeking attorney's fees: Hall v. 84

Lumber

C. Small jury verdict for plaintiff equals judgment for defendant

D. Punitive damages count toward the 75 percent versus 125 percent

E. A dismissal without prejudice did not trigger the Award

F. Courts struggle with "offers not made in good faith"

G. OCGA § 9-11-68 is Constitutional

V. Federal Court Application of OCGA § 9-11-68

A. OCGA § 9-11-68 is Substantive Law in Federal Court

B. [Reserved]

VI. Conclusion
Hugh C. Wood, Esq.
Atlanta, (Tucker), GA

This paper will review George's offer of settlements Statute OCGA § 9-11-68. It
will review the mechanics of the statute, the important subparts to the statute, the "good
faith" defense in the statute and it will review the jury homolog or companion statute
known as OCGA§ 9-15-14. This paper will review the most important cases of 2018,
2017, 2016 and 2015. It will review the potential introduction of insurance (or private
contracts of payment) that exist in other states to allow plaintiff (or defendant) to shift
the risk of the loss of attorney’s fees to an insurer. It will review some of the larger
issues associated with enforcing OCGA§ 9-11-68 motions and finally will review the
determination that OCGA § 9-11-68 is substantive law in federal court.
I. OCGA § 9-11-68, GEORGIA'S OFFER OF SETTLEMENT STATUTE
A. The Offer of Settlement Statute: OCGA § 9-11-68
OCGA § 9-11-68. Offer of Settlement
(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 the other party, but
shall not file with the 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. Any offer under this Code section must:
(1) Be in writing and state that it is being made pursuant to this Code
section;
(2) Identify the party or parties making the proposal and the party or
parties to whom the proposal is being made;
(3) Identify generally the claim or claims the proposal is attempting to
resolve;
(4) State with particularity any relevant conditions;
(5) State the total amount of the proposal;
(6) State with particularity the amount proposed to settle a claim for
punitive damages, if any;
(7) State whether the proposal includes attorney´s fees or other expenses
and whether attorney´s fees or other expenses are part of the legal claim;
and
(8) Include a certificate of service and be served by certified mail or
statutory overnight delivery in the form required by Code Section 9-11-5.
(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 on the
defendant ´s behalf 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.
(2) 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, the 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.
(c) Any offer made under this Code section shall remain open for 30 days
unless sooner withdrawn by a writing served on the offeree prior to
acceptance by the offeree, but an offeror shall not be entitled to attorney´s
fees and costs under subsection (b) of this Code section to the extent an
offer is not open for at least 30 days (unless it is rejected during that 30
day period). A counteroffer shall be deemed a rejection but may serve as
an offer under this Code section if it is specifically denominated as an offer
under this Code section. Acceptance or rejection of the offer by the offeree
must be in writing and served upon the offeror. An offer that is neither
withdrawn nor accepted within 30 days shall be deemed rejected. The fact
that an offer is made but not accepted does not preclude a subsequent
offer. Evidence of an offer is not admissible except in proceedings to
enforce a settlement or to determine reasonable attorney´s fees and costs
under this Code section.
(d)(1) The Court shall order the payment of attorney ´s fees and expenses
of litigation upon receipt of proof that the judgment is one to which the
provisions of either paragraph (1) or paragraph (2) of subsection (b) of this
Code section apply; 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.
(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.
(e) 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. In such event, the Court shall hold a separate bifurcated hearing
at which the finder of fact shall make a determination of whether such
frivolous claims or defenses were asserted and to award damages, if any,
against the party presenting such frivolous claims or defenses. Under this
subsection:
(1) Frivolous claims shall include, but are not limited to, the following:
(A) A claim, defense, or other position that lacks substantial justification or
that is not made in good faith or that is made with malice or a wrongful
purpose, as those terms are defined in Code Section 51-7-80;
(B) A claim, defense, or other position with respect to which there existed
such a complete absence of any justiciable issue of law or fact that it could
not be reasonably believed that a Court would accept the asserted claim,
defense, or other position; and
(C) A claim, defense, or other position that was interposed for delay or
harassment;
(2) Damages awarded may include reasonable and 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 specified in
Code Section 9-15-14, but not both. Added by 2005 Ga. Laws 1, § 5, eff.
2/16/2005.
B. The Mechanics of the Statute
OCGA § 9-11-68(a): The statute applies only to tort cases. While this author is
certain that some creative practitioners will attempt to expand the scope of this
charming statute to probate, hybrid-contract actions and other actions, it by its
language, presently only applies to “tort” actions. Thus, your case must have the
prerequisite of a tort claim to be able to make an Offer of Settlement. [1]
With regard to timing, the offer may only be made thirty (30) days after the
service of the summons and complaint (Note: it does not refer to the Answer, but only
service) and not less than thirty (30) days before trial.
Assuming that your case has a tort claim and the offer is made within the proper
timing parameters (thirty (30) days after service or thirty (30) days before trial) then it
must contain the following elements:
OCGA § 9-11-68(a)(1): It must be in writing and it must specifically state that it is
made under the Offer of Settlement statute 9-11-68;
 OCGA § 9-11-68(a)(2): It must particularly identify which parties are making the
offer [assuming that there are multiple parties in addition to a simple plaintiff and
defendant]; it must also identify the target of the offer;
OCGA § 9-11-68(a)(3): It must identify, generally, the claim or claims concerning
which the Offer desired to settle; [2]
OCGA § 9-11-68(a)(4): The offer must “state with particularity any relevant
conditions.” What is the legal meaning of “relevant conditions?” This definition escapes
this author.
OCGA § 9-11-68(a)(5): The offer must state the total dollar ($) amount of the
proposal.
OCGA § 9-11-68(a)(6): The offer must state with particularity the amount that
offeror proposes to settle any punitive damage claim;
OCGA § 9-11-68(a)(7): The offer must state specifically whether it includes
“attorney’s fees” and/or other expenses and whether attorney’s fees or other expenses
are part of the underlying legal claim;
OCGA § 9-11-68(a)(8): The offer must include a certificate of service and be
served by certified or statutory overnight delivery (read that UPS or FedEx) in the form
required by OCGA § 9-11-5.
Under Section OCGA § 9-11-68 (c) any offer made must remain open for Thirty
30 days unless withdrawn in writing served on the Offeree prior to acceptance. [3]
OCGA § 9-11-68(b). Liability for a Rejected Offer. It is somewhat difficult to state
the liability for a rejected offer, however:
If defendant makes an Offer and it is rejected, plaintiff must beat the offer at trial
by, at least, 75% of the rejected offer or pay defendant’s attorney’s fees.
If plaintiff makes an Offer and it is rejected, defendant is not liable for plaintiff’s
attorney’s fees unless plaintiff beats the rejected offer by 125% of the amount of the
offer.
C. The Good Faith Defense
The statute appears to allow the trial Court, upon motion of the non-prevailing
party under an Offer of Settlement, to request that the Court find that Offeror knew that
Offer of Settlement was not made “in good faith”. OCGA § 9-11-68(d)(2). If the Court
finds the offer was not made in good faith, then the Offer of Settlement is just
considered either void or null.
D. The Jury Version Homologue of OCGA § 9-15-14
 OCGA § 9-11-68(e). The 1987 enactment of OCGA § 9-15-14 motion for
attorney’s fees for frivolous litigation and claims was supposed to be the remedy
enacted by the legislature which merged all common law claims of malicious abuse and
malicious use of prosecution into one statute. However, since the enactment of OCGA §
9-15-14, we have seen the enactment of OCGA § 51-7-80 through 85 and now a jury-
driven version of OCGA § 9-15-14. Under subparagraph (e) of OCGA § 9-11-68 a
prevailing party at the end of a jury trial may move the Court to allow the jury (then
impaneled) to hear a bifurcated discussion of whether the claims advanced by the non-
prevailing party were frivolous, lacked substantial justification or were not made in good
faith.
If the jury finds that those claims were made during trial were frivolous then and
in that event the jury may proceed to award damages against the non-prevailing party
pursuant to OCGA § 9-11-68(e). It is possible that a motion under subparagraph (e)
may be made to the judge; however, it is clear that the General Assembly wanted to
give the prevailing party the opportunity to present frivolous claims to the jury then
impaneled.
A prevailing party may not use both OCGA § 9-15-14 and OCGA § 9-11-68(e) for
the same factual conduct by the non-prevailing party.
II. GEORGIA CASES INTERPRETING OCGA § 9-11-68
A. 2018 Cases
1. The Coastal Bank v. Rawlins, ___ Ga.App.___, ___S.E.2d___, 2018 WL
5317463 (October 29, 2018).
Family of decedent brought action against bank and beneficiary of decedent's
estate after beneficiary cashed pre-signed checks of decedent at bank. After family
rejected bank's offer for settlement, the trial court denied bank's motion for summary
judgment, and the Court of Appeals reversed. Bank then sought recovery of fees and
expenses. The trial court found that bank's offer of settlement had not been made in
good faith and declined to award bank fees and expenses. Bank appealed. Synopsis,
Coastal Bank, supra. Vacated and Remanded.
In Richardson v. Locklyn, 339 Ga. App. 457, 459-61, 793 S.E.2d 640 (2016), this
Court adopted Florida’s test for determining whether an offer of settlement was made in
good faith. See also OTS, Inc. v. Weinstock & Scavo, P.C., 339 Ga. App. 511, 520 (8),
793 S.E.2d 672 (2016) (physical precedent only). In Richardson, we acknowledged that
determining whether an offer was made in good faith rests on whether the offeror has a
reasonable foundation on which to base the offer and that “[s]o long as the offeror has a
basis in known or reasonably believed fact to conclude that the offer is justifiable, the
good faith requirement has been satisfied.” (Citation omitted.) Richardson, 339 Ga. App.
at 460, 793 S.E.2d 640. Coastal Bank, supra, at ____.
The trial court found that a $3,000.00 offer made in the face of a much larger
dispute was not made in “good faith”. The Court of Appeals vacated and said wrote that
the trial court failed to take into account the Bank’s subjective believe that the Plaintiff’s
case was baseless on lack of standing and no jurisdiction.
Trial court's failure to weigh objective considerations against bank's subjective
beliefs when making determination that bank's settlement offer was not made in good
faith was abuse of discretion in action brought by family of decedent against bank and
beneficiary of decedent's estate after beneficiary cashed pre-signed checks of decedent
at bank; although court made a passing reference to bank's defense that family lacked
standing, court failed to weigh the objective factors, such as family's ability to settle after
offer was made, against bank's subjective belief in the strength of its no-standing
defense. Headnote 3, Coastal Bank, supra.
2. Hillman, et al. v Bord, et al., ___ Ga.App.___, 820 S.E.2d 482 (October 18,
2018).

Hillman, supra, takes us down the slippery slope (predicted by this author in
2007) that adds other claims to the OCGA § 9-11-68 matrix of settlement offers.
OCGA § 9-11-68(a) states it may be used to “settle a tort claim for the money specified
in the offer” it discusses “torts”, not contracts and no other claims. Hillman, supra,
injects other claims into the claims that may fit within OCGA § 9-11-68.
Hillman, supra, shows how a rejecting a $4,000.00 offer can into a judgment
against you for $120,559.75 (they asked for $144,826.59) in attorney’s fees. (Ouch).
The real danger in Hillman, supra, (physical precedent only; Court of Appeals Rule
33.2(a)) is that OCGA § 9-11-68 offers many now include “claim for equitable relief”.
The Procedural history of this case is set forth in the first appeal of this matter in
2015:
[O]n September 6, 2013, the Hillmans filed suit against their next-door
neighbors, Bord and Bondar, for injunctive relief, nuisance, trespass,
negligence, negligence per se, intentional infliction of emotional distress,
punitive damages, and attorney fees. The Hillmans alleged that certain
actions of Bord and Bondar resulted in increased water runoff on the
Hillmans's land, which caused damage to their property. On October 16,
2013, Bord and Bondar answered and counterclaimed for injunctive relief,
nuisance, trespass, negligence, negligence per se, tortious interference
with business relations, slander and oral defamation, punitive damages,
attorney fees and costs of litigation. Bord and Bondar alleged that when
the Hillmans constructed a retaining wall, it caused water to back up onto
Bord and Bondar's property, which caused damage to the property,
including, but not limited to, flooding in their basement.
335 Ga.App. 18, 780 S.E.2d 725, 727 (Ga.App. 2015).
The Court of Appeals reversed a grant of partial summary judgment and returned
the case to the trial court for a jury trial. The jury entered a verdict for neighbors (Bord)
on plaintiff owners' claims and entered a jury verdict for plaintiff owners on neighbors'
counterclaims. Plaintiff (Hillman) owners appealed. After the Court of Appeals affirmed
trial court's denial of equitable relief, neighbors moved for attorney fees pursuant to
statute governing attorney-fee awards related to rejected offers to settle tort claims.
After a hearing, the trial court granted the motion in part and awarded neighbors
$120,559.75 in fees. Plaintiff owners appealed. It was Affirmed, Subject to Rule
33.2(a).
The Court of Appeals affirmed the award of $120,559.75, even though the
rejected offer contained claims other than tort claims.
This ruling is novel in Georgia law and this author believes the correct holding
was more correctly stated by J. Barnes in her Dissent.
Barnes, Presiding Judge, dissenting.
I respectfully dissent. Based on the statutory framework and the rule of
strict construction applicable in this context, an offer to settle made
pursuant to OCGA § 9-11-68 can encompass only tort claims for
damages, and such an offer cannot be conditioned on the dismissal of
claims for non-monetary relief. Because the appellees conditioned their
offer of settlement on the dismissal of the appellants’ claims for injunctive
relief, the appellees’ offer did not qualify as an offer to settle under the
statute. Accordingly, the trial court’s award of attorney fees and expenses
under OCGA § 9-11-68 should be reversed.
The language and structure of OCGA § 9-11-68 reflect that the legislature
contemplated that it would apply only to offers to settle tort claims for
damages. OCGA § 9-11-68 (a) authorizes a party to serve on the other
party “a written offer[ ] ... 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.” OCGA § 9-11-68 (b) then addresses
the circumstances under which fee-shifting will be triggered by a rejected
offer of settlement: a defendant who makes an offer is entitled to fees “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,” OCGA § 9-
11-68 (b) (1); a plaintiff who makes an offer is entitled to fees if “the
plaintiff recovers a final judgment in an amount greater than 125 percent
of such offer of settlement.” OCGA § 9-11-68 (b) (2).
OCGA § 9-11-68 “is in derogation of common law and it must be strictly
construed against the award of [attorney fees and costs].” (Citations and
punctuation omitted.) Alessi v. Cornerstone Assoc., 334 Ga. App. 490,
493, 780 S.E.2d 15 (2015). OCGA § 9-11-68 therefore “must be limited
strictly to the meaning of the language employed, and not extended
beyond the plain and explicit terms of the statute.” (Citation and
punctuation omitted.) Delta Airlines v. Townsend, 279 Ga. 511, 512 (1),
 614 S.E.2d 745 (2005). Because the method of comparing the offer
amount and the final judgment is monetary in nature, the triggering
mechanism for fee-shifting under OCGA § 9-11-68 (b) is predicated on an
offer to settle one or more tort claims for damages. And, given that there is
no similar provision that addresses how to compare an offer of settlement
to a judgment awarding non-monetary relief, OCGA § 9-11-68, strictly
construed, applies only to offers seeking to settle tort damages claims.
Nor should the term “any relevant conditions” found in OCGA § 9-11-68
(a) (4) be construed broadly to permit an offer of settlement to condition
acceptance of the offer on the dismissal of claims for non-monetary relief.
Construing “any relevant conditions” in such an expansive manner would
be inconsistent with the rule of strict construction and with the fee-shifting
provisions of OCGA § 9-11-68 (b) discussed above. See Vollrath v.
Collins, 272 Ga. 601, 604 (2), 533 S.E.2d 57 (2000) (provisions of a
statute should be construed harmoniously rather than in a manner that
would render them inconsistent and contradictory). An expansion of the
statute to encompass offers that seek the dismissal of claims for non-
monetary relief “must come from the legislature, as it alone is entrusted
with the authority to amend existing laws.” *491 Abdulkadir v. State, 279
Ga. 122, 124 (2), 610 S.E.2d 50 (2005).
In light of the foregoing, OCGA § 9-11-68 does not apply to an offer of
settlement that, as in the present case, sought to condition acceptance of
the offer on the dismissal of claims for an injunction. Notably, Florida
courts have reached a similar conclusion in construing that state’s offer of
judgment statute,1 see Diamond Aircraft Indus. v. Horowitch, 107 So.3d
362, 372-376 (Fla. 2013); Winter Park Imports v. JM Family Enterprises,
66 So.3d 336, 340-342 (Fla. Dist. Ct. App. 2011); Palm Beach Polo
Holdings v. Equestrian Club Estates Property Owners Assoc., 22 So.3d
140, 143-145 (Fla. Dist. Ct. App. 2009), and we have looked to that state
for guidance in applying OCGA § 9-11-68. See Richardson v. Locklyn, 339
Ga. App. 457, 459, 793 S.E.2d 640 (2016) (noting that “Georgia’s offer of
settlement statute, part of the Tort Reform Act of 2005, is modeled after
Florida’s offer of judgment statute,” and “[w]e therefore look to our sister
state for guidance in its application”).
Accordingly, the appellees’ offer of settlement did not qualify as an offer of
settlement under OCGA § 9-11-68, and the trial court erred in awarding
attorney fees and expenses to the appellees under the fee-shifting
provisions of that statute. Because the majority concludes otherwise, I
respectfully dissent.
820 S.E.2d 482, 490.
A. 2017 Cases
 1. The OCGA § 9-11-68 Ten (10) Million Dollar Hammer: 2017 revealed yet
another case where Plaintiffs forced settlement based on the threat of a very
large OCGA § 9-11-68 potential award.
In Muskogee State Court Attorneys Lloyd Bell, Andrew Dodgen, David
Schlacher, Michael Watson and Darren Summerville tried Williams v. Tidwell, State
Court of Muskogee County, CAF No. SC14CV0882 to a $26 million jury verdict in the
second week of December 2017.
Upon information, Plaintiff had forwarded Defendant hospital a $10 million
demand prior to proceeding to the jury. That demand was rejected. Upon the recovery
of $26 million by jury verdict, Plaintiffs moved to enforce the prior OCGA 9-11-68 Award
before the same trier of fact (the sitting jury) pursuant to the bifurcation provisions of 9-
11-68(e). Apparently, the hospital (upon information) only had $25 million worth of
insurance and if the bifurcated jury found 40 percent of $25 million (apparently $1
million of the $26 million was previously paid) to be attorney's fees to be awarded to
Plaintiff under OCGA 9-11-68(e) then $10 million of an Award would not be covered by
insurance.
This was one of the most high-profile bifurcations that we have seen since the
enactment of OCGA 9-11-68 almost 12 years ago.
OCGA 9-11-68 (e) 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. In such event, the court shall hold a separate bifurcated
hearing at which the finder of fact shall make a determination of whether
such frivolous claims or defenses were asserted and to award damages, if
any, against the party presenting such frivolous claims or defenses.
Tucker, Katheryn, Why a Hospital Agreed to Pay, [and] Not Appeal, a $26 million
Med-Mal Verdict: Daily report online published December 14, 2017.
2. Strategic Law, LLC v. Pain Management & Wellness Centers of Georgia,
LLC, et al., Court of Appeals of Georgia A17A0720 (2017 WL 4856019)
(October 27, 2017).
In Strategic Law, the Court of Appeals allowed OCGA 9 11 68 attorney's fees to
be sought by the party seeking to enforce a breached consent order of payment.
Apparently, the parties settled and entered into a payment agreement. Pain
Management breached the agreement. Strategic Law then moved to enforce the
breached consent order and sought attorney's fees. Pain Management stated that it
was a “contract” matter and not subject to OCGA § 9 11 68. Stratigic Law asserted that
the underlying case was a tort and that 9-11-68 applied. The Court of Appeals agreed
with Stratigic Law and we now have a case of first impression that 9-11-68 can be used
to enforce nonpayment of a consent order.
3. Stevens v. Food Lion, LLC, 341 Ga. App. 644, 801 S.E. 2d 340 (2017).
 Stevens, supra, provide the Bar with another example of Plaintiff wins but loses
$50,000.00 to Defendant. The case was a slip and fall case against Food Lion in Metro
Atlanta. Stevens, the Plaintiff, sued Food Lion for slip and fall. Prior to trial, Food Lion
offered $25,000.00 pursuant to OCGA 9-11-68. Plaintiff rejected that amount and went
to trial and recovered $25,000.00. Plaintiff was found to be 30 percent negligent thus
she only recovered $17,500.00. Food Lion moved to put on its attorney's fees and
expenses which totaled $62,675.70. The Court granted the motion under the "shall"
language of OCGA 9-11-68. Thus, while Plaintiff had an actual proven slip and fall
injury, she ended up owing Food Lion $45,175.70 for the trouble of processing the case
through our current legal system. This case is yet another anomaly of why Plaintiff
should settle or if plaintiff goes to a jury it must recover more than 125 percent of the
rejected demand.
4. An OCGA § 9-11-68 FORM Appears in Frank E. Jenkins, III and Wallace
Miller, III. Ga. Automobile Insurance Law § 58:35 (2017–2018 Edition).
Defendant's OCGA § 9-11-68 Form 1.
B. 2016 Cases
A hearing is now required on all OCGA § 9-11-68 awards (practical meaning)

1. Richardson v. Locklyn, 339 Ga. App. 457, 793 S.E.2d 640 (2016).

The Richardson case, is a very substantial change in the interpretation of OCGA

§ 9-11-68. While it indicates on its face that a hearing is now required for a "nominal
offer of judgment", (a good faith offer in Georgia) the practical interpretation is that a
hearing now seems to be required on all OCGA § 9-11-68 awards.

In May 2014 Locklyn sued Richardson for damages arising out of a 2012
automobile accident. Locklyn sought recovery for her medical bills and other damages.
During discovery Locklyn produced medical bills totaling approximately $19,000.00.
After this production of bills, in July 2014, Richardson (the defendant) sent Locklyn a
formal offer under OCGA § 9-11-68 to settle her claims for $12,500.00. Locklyn
rejected the offer.

The jury returned a verdict for Locklyn in the amount of $6,948.25. That was
substantially below the amount necessary to avoid paying defendant's attorneys' fees.
Under prior analysis of OCGA § 9-11-68 the Richardson lawyers should simply prove up
the amount of attorneys' fees they incurred after the rejection of the 9-11-68 offer and
obtain a court order for attorney’s fees against Locklyn.

However, the Court of Appeals, en banc Judge Boggs, adopted the State of
Florida's analysis concerning whether an offer of judgment was made in good faith. He
noted that our OCGA § 9-11-68 was patterned after a Florida statute FLA. Stat. §
768.79 -- Offer of Judgment and Demand for Judgment, the Florida statute. Florida's
law apparently has developed to where a nominal offer of judgment under the Florida
statute requires a hearing.

Richardson's attorneys moved for their attorneys' fees. The Trial Court, upon
review of the information, denied Richardson's motion for fees noting that the offer of
$12,500.00 was less than the disclosed $18,927.25 medical bills and the Court noted
that Richardson admitted liability for the accident. Upon those facts the Trial Court said
that the offer could not have been made in good faith. Absent the ruling in Richardson
v. Locklyn, it would appear that the courts simply award the attorneys' fees.

After Richardson v. Locklyn, the court must hold a hearing concerning whether
the offer to settle was made in good faith and the Georgia court, directing our courts to
look to Florida law adopted the Florida test concerning objective good faith. A finding of
good faith under Florida Law (now Georgia law) must determine: 1. Whether "the offer
bore no reasonable relationship to the amount of damages or 2. a realistic assessment
of liability, or 3. that the offer lacked the intent to settle the claim. Florida (and now
Georgia) step away somewhat from the mechanical application of 9-11-68 and grant the
trial court some flexibility in determining whether the offer was made in good faith.

While reasonable attorneys may differ concerning whether a hearing is required

in all OCGA § 9-11-68 requests for fees, this author thinks that a hearing is now
required. While Boggs' opinion seems to limit to a determination of "good faith" offer, it
would appear that the courts are headed to require a hearing in the same way that a
hearing is now mandatory for an award under OCGA § 9-15-14 attorneys' fees.

2. Here is the Florida Statute to which Judge Boggs referred:

Fla. Stat. § 768.79 Offer of judgment and demand for judgment

(1) In any civil action for damages filed in the courts of this state, if a
defendant files an offer of judgment which is not accepted by the plaintiff
within 30 days, the defendant shall be entitled to recover reasonable costs
and attorney’s fees incurred by her or him or on the defendant’s behalf
pursuant to a policy of liability insurance or other contract from the date of
filing of the offer if the judgment is one of no liability or the judgment
obtained by the plaintiff is at least 25 percent less than such offer, and the
court shall set off such costs and attorney’s fees against the award. Where
such costs and attorney’s fees total more than the judgment, the court
shall enter judgment for the defendant against the plaintiff for the amount
of the costs and fees, less the amount of the plaintiff’s award. If a plaintiff
files a demand for judgment which is not accepted by the defendant within
30 days and the plaintiff recovers a judgment in an amount at least 25
percent greater than the offer, she or he shall be entitled to recover
reasonable costs and attorney’s fees incurred from the date of the filing of
the demand. If rejected, neither an offer nor demand is admissible in
subsequent litigation, except for pursuing the penalties of this section.

(2) The making of an offer of settlement which is not accepted does not
preclude the making of a subsequent offer. An offer must:

(a) Be in writing and state that it is being made pursuant to this section.

(b) Name the party making it and the party to whom it is being made.

(c) State with particularity the amount offered to settle a claim for
punitive damages, if any.

(d) State its total amount.

The offer shall be construed as including all damages which may be

awarded in a final judgment.

(3) The offer shall be served upon the party to whom it is made, but it
shall not be filed unless it is accepted or unless filing is necessary to
enforce the provisions of this section.

(4) An offer shall be accepted by filing a written acceptance with the

court within 30 days after service. Upon filing of both the offer and
acceptance, the court has full jurisdiction to enforce the settlement
agreement.

(5) An offer may be withdrawn in writing which is served before the date
a written acceptance is filed. Once withdrawn, an offer is void.

(6) Upon motion made by the offeror within 30 days after the entry of
judgment or after voluntary or involuntary dismissal, the court shall
determine the following:

(a) If a defendant serves an offer which is not accepted by the plaintiff,

and if the judgment obtained by the plaintiff is at least 25 percent less than
the amount of the offer, the defendant shall be awarded reasonable costs,
including investigative expenses, and attorney’s fees, calculated in
accordance with the guidelines promulgated by the Supreme Court,
incurred from the date the offer was served, and the court shall set off
such costs in attorney’s fees against the award. When such costs and
attorney’s fees total more than the amount of the judgment, the court shall
enter judgment for the defendant against the plaintiff for the amount of the
costs and fees, less the amount of the award to the plaintiff.

(b) If a plaintiff serves an offer which is not accepted by the defendant,

and if the judgment obtained by the plaintiff is at least 25 percent more
than the amount of the offer, the plaintiff shall be awarded reasonable
costs, including investigative expenses, and attorney’s fees, calculated in
accordance with the guidelines promulgated by the Supreme Court,
incurred from the date the offer was served.

For purposes of the determination required by paragraph (a), the term

“judgment obtained” means the amount of the net judgment entered, plus
any postoffer collateral source payments received or due as of the date of
the judgment, plus any postoffer settlement amounts by which the verdict
was reduced. For purposes of the determination required by paragraph
(b), the term “judgment obtained” means the amount of the net judgment
entered, plus any postoffer settlement amounts by which the verdict was
reduced.

(7)(a) If a party is entitled to costs and fees pursuant to the provisions of

this section, the court may, in its discretion, determine that an offer was
not made in good faith. In such case, the court may disallow an award of
costs and attorney’s fees.

(b) When determining the reasonableness of an award of attorney’s fees

pursuant to this section, the court shall consider, along with all other
relevant criteria, the following additional factors:

1. The then apparent merit or lack of merit in the claim.

2. The number and nature of offers made by the parties.

3. The closeness of questions of fact and law at issue.

4. Whether the person making the offer had unreasonably refused to

furnish information necessary to evaluate the reasonableness of such
offer.

5. Whether the suit was in the nature of a test case presenting questions
of far-reaching importance affecting nonparties.
 6. The amount of the additional delay cost and expense that the person
making the offer reasonably would be expected to incur if the litigation
should be prolonged.

(8) Evidence of an offer is admissible only in proceedings to enforce an

accepted offer or to determine the imposition of sanctions under this
section.

History. s. 58, ch. 86-160; s. 48, ch. 90-119; s. 1175, ch. 97-102.

3. Assocs. v. Rubinson, 784 So. 2d 1135, 1137 (Fla. Dist. Ct. App. 2000)

The first Florida case which was the first to hold that a hearing must be held,
under the Florida statute cited in Richardson, is Jaime Schapiro AIA & Assocs. v.
Rubinson, 784 So. 2d 1135, 1137 (Fla. Dist. Ct. App. 2000). Holding: "However the trial
court failed to hold a hearing and failed to require Rubinson to satisfy the burden of
showing that the proposed settlement was not made in good faith.

While the trial court has the authority to make a determination that the offer was
not made in good faith, here, as Rubinson concedes, a hearing should have been held.
Thus, we remand for an attorney's fees hearing."

4. Pickett v. R.J. Reynolds Tobacco Co., M.D.Fla.2013, 948 F.Supp.2d 1314,

affirmed 564 Fed.Appx. 981, 2014 WL 1775881:

[T]he question of whether a proposal was served in good faith turns entirely on
whether the offeror had a reasonable foundation upon which to make his offer and
made it with the intent to settle the claim against the offeree should the offer be
accepted.” Wagner v. Brandeberry, 761 So.2d 443, 446 (Fla. 2d DCA 2000). However,
“[i]n making this determination, the trial court is not restricted to the testimony of the
offeror attesting to good faith; rather, the court may properly consider objective evidence
of facts and circumstances that suggest whether the offeror made the offer with
subjective good faith.” Arrowood Indem. Co. v. Acosta, Inc., 58 So.3d 286, 289 (Fla. 1st
DCA 2011).

Thus, the court should consider the following factors in determining the offeror's
subjective good faith: the amount of the offer, the offeror's potential exposure, the
complexity and closeness of the case, and the offeror's justification for the offer. Id. at
290. The court should not consider the reasonableness of the offeree's rejection of the
offer. TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 613 (Fla.1995) (noting that the fact
that an offeree had a good reason to reject a low offer is not properly considered in the
determination of entitlement to fees but should be considered in determining the amount
of fees).

5. OTS, Inc. et al. v. Weinstock & Scavo, P. C. et al., 339 Ga.App.511, 793
S.E.2d 672 (2016).

OTS, Inc. et al. v. Weinstock & Scavo, P. C. et al. highlights the impact of
Richardson v. Locklyn. In OTS, the Georgia Court of Appeals vacated the trial courts
award of attorney fees, which the trial court awarded pursuant to OCGA § 9-11-68. The
judgment was vacated with the instructions that the trial court, on remand, pursuant to
Richardson, utilize Florida’s test for determining whether the settlement offer was made
in good faith. Notably, the court in OTS specifically mentioned that the trial court hold a
hearing for this determination.

6. Time Limit Federal Court. Fourteen (14) days to Seek Fees

If attorney’s fees are sought in federal court under O.C.G.A. § 9–11–68 (which is
substantive law in federal court) they must be sought no later than fourteen (14) days
after

7. Jesus Camacho, et al v. Nationwide, 11th Cir., June 23, 2016 [2016 WL

3059833]

In Camacho v. NWIDE, a case in the N.D. of Georgia, the court determined that
the deceased motorist’s estate could recover attorney fees pursuant to OCGA § 9-11-
68. The court found that the estate’s offer, which was made nearly sixty days after its
complaint was filed, to settle for $4,583,000 was rejected in bad faith. The insurer, to
whom the offer was made, did not respond to the offer, an act that resulted in four
additional years of litigation. The underlying judgment was $5,730,000, which is just shy
of 125% ($5,728,750) of the excess portion of the underlying judgment.

Camacho is useful because it highlights what argument will likely not work, for
the court rejected Nationwide’s argument that the estate’s offer was made in bad faith.
Nationwide argued that the plaintiffs “knew that a favorable verdict would net a
judgment in excess of 125%” of the $4,583,000 offer so that “any verdict in their favor
was guaranteed to secure fees under this statute." The court relied on the “purposes of
the statute” to reject Nationwide’s argument that the offer was made to strong arm
Nationwide into settling or ceding liability. Quoting Smith v. Baptiste, 694 S.E.2d 83, 88
(Ga. 2010), “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.” Noting this purpose, the court held that the settlement offer was not made in
bad faith.
 C. 2015 Cases
1. Alessi v. Cornerstone Associates, Inc., 334 Ga.App. 490, 780 S.E.2d 15
(2015).
No OCGA § 9 11 68 awards in Arbitration. The case involved homeowners
purchasing a house from Cornerstone Associates Inc. in Locust Grove, Georgia. The
contractor purchase indicated that binding arbitration would be conducted before an
arbitrator named by Cornerstone. The year before the arbitration Cornerstone offered
the homeowners an OCGA § 9 11 68 offer of $3,000.00 to settle the claim. The
homeowners proceeded to binding arbitration pursuant to the contract and recovered
nothing as did Cornerstone. Both sides received nothing in arbitration. Based upon the
fact that homeowner did not exceed or meet the $3,000.00 by 75 percent at the
arbitration, Cornerstone brought a motion in the trial court for the $67,268.41 it had
spent in defending the case. The Superior Court of Paulding County awarded the
attorney's fees pursuant to OCGA § 9 11 68 and homeowner appeal. The Court of
Appeals and apparently what appears to be a case of first impression determined that
OCGA § 9 11 68 attorney's fees apply only in the context of court driven civil litigation.
The Court of Appeals reasoned that the statute should be granted in strict construction
and 9 11 68 that the general assembly made no reference to alternative dispute
resolution in the statute. Also, by the use of the word trial, the general assembly must
have intended to exclude Award in arbitration. Thus, 9 11 68 does not apply in
arbitration. [The underlying case was discussed last year at Alessi, et al. v.
Cornerstone Associates, Inc., 329 Ga.App. 420, 765 S.E.2d 630 (2014).]
2. Tiller v. RJJB Associates, LLP, 331 Ga.App. 622, 770 S.E.2d 883 (2015).
Award Reversed for Vagueness. The Court of Appeals reversed a grant of
OCGA § 9 11 68 to a shopping center mall operated that housed anchor store J. C.
Penney in the amount of $24,696.28. While the corporation for the mall obtained
summary judgment against a slip and fall plaintiff and the slip and fall plaintiff recovered
nothing, the Court of Appeals held that the offer was too vague to be unenforceable.
Particularly, the movant under OCGA § 9 11 68 sent an OCGA § 9 11 68 of settlement
which referred to provisions of the complaint. Because the slip and fall plaintiff had filed
a lengthy amended complaint the Court of Appeals held that the offer could not be
accepted as written. This is yet another case that describes the importance of
confirming the OCGA § 9 11 68 letter to the exact facts of the case in order to be
enforced.
3. Bell v. Waffle House, Inc., 331 Ga.App. 443, 771 S.E.2d 132 (2015)
No Fee Hearing Required if not Requested. In an OCGA § 9 11 68 award of
attorney's fees in favor of Waffle House in the amount of $27,276.37, the Court of
Appeals affirmed the award even though no evidentiary hearing was held. Generally,
under OCGA § 9 11 68 (as is required under OCGA § 9 15 14 (a hearing is required
pursuant to OCGA § 9 11 68 (e)). The Court of Appeals affirmed because the plaintiff
Bell (against whom the award was made) failed to formally request a hearing in his
moving papers and waived it by the language of his motion. Thus, the fee award was
affirmed without a necessity of a hearing. [4]
III. INSURING AGAINST OCGA § 9-11-68

A. The Risk is Real: The Outcome Unpredictable

Consider the below outcome reported by the Daily Report. A fatal truck/tractor
trailer accident occurs in Emanuel County (County Seat is Swainsboro) in 2006.
Jurisdiction exists over defendant in DeKalb County. The case is worth trying (it is a
death case). Defense sends OCGA § 9-11-68 demand which is rejected. The case is
tried twelve (12) years after the accident. Defense verdict. Now the widow faces the
prospect of payment of a decade of defense attorney’s fees because of the verdict.

DeKalb Jury Finds No Liability by Trucker in Fatal Southeast Ga. Crash |

Daily Report |By Greg Land | August 28, 2018

The jury took about 45 minutes to find for the defense after a four-day trial
involving a 2006 wreck between a tractor-trailer and pickup truck at a rural
Emanuel County intersection.

Following a four-day trial, a DeKalb County jury took less than an hour to
find no liability on the part of a tractor-trailer driver who slammed into a
pickup truck at an intersection in southeast Georgia nearly 12 years ago,
killing the other driver.

Lead defense lawyer Raymond Kurey of McMickle, Kurey & Branch

Alpharetta [Georgia] said there were no mediations and little settlement
discussion until about 40 days before trial, when he sent an offer of
settlement for $50,000, which was declined. Because of that, Kurey said
he and his co-counsel, firm associate Scott Zottneck, will likely seek
attorney fees from that point on under Georgia’s Offer of judgment statute.

Lead plaintiff’s attorney Brian “Buck” Rogers of Fried Rogers Goldberg

said his client, the wife of the deceased driver, has not decided whether to
appeal or file posttrial motions. Rogers tried the case with Alice Rodriguez
of Peachtree City’s Rodriguez & Associates. According to Kurey and
court filings, 56-year-old Beverly Pool Jr. was driving a Chevrolet 1500
pickup truck pulling a work trailer when he attempted to cross Ga. 4, a
divided, four-lane roadway in Emanuel County near Swainsboro. Poole
was on Ga. 57 and had to go through a stop sign before crossing Ga. 4,
which has no traffic control devices at the intersection.

A tractor-trailer driven by Faisal Noor was approaching on 57 and hit

Pool’s pickup near the front passenger side in October 2006. “Mr. Noor
said he recalled seeing the pickup in front of him, but it was too late to do
anything to avoid it,” Kurey said. Noor was [s]lightly injured, he said, but
Pool never regained consciousness and died shortly thereafter.

The Georgia state trooper who investigated the case did not cite either
driver and reported finding no skid marks from the tractor-trailer, Kurey
said. The plaintiff’s expert, Tom Langley of Woodstock, went to the scene
two months later. “He said he found 85 feet of pre-impact skid marks, and
he placed the tractor-trailer going between 75 and 85 miles an hour,”
Kurey said.

The defense expert, LaGrange accident reconstructionist Bob Awtrey,

testified that the semi’s onboard software indicated it was equipped with a
governor that prevented it from going over 67 mph, Kurey said. The skid
marks were also problematic because the trooper changed his story to say
he “misremembered” whether there were marks, and then changed it
again when confronted with his original affidavit, Kurey said.

Adding to the confusion was the fact that there was another wreck at the
same intersection the day after the one that killed Poole. “There are a lot
of accidents at that intersection,” Kurey said. Poole’s widow, Linda Poole,
sued Noor and trucking company Knight Transportation in DeKalb County
State Court. At the close of the trial before Judge Johnny Panos, Kurey
said Rogers asked the jury to award $5 million in damages.

The jury took about 45 minutes to return a defense verdict on Aug. 16, he
said. Neither side spoke to the jurors, who exited as a group, Rogers said.
“Buck did a good job; they tried a great case,” Kurey said.

B. Shift the Risk of Loss: Private Contracts concerning Attorney’s Fees –

Florida’s Experience

Attorneys should be allowed to shift the risk of the unknown

outcome of OCGA § 9-11-68.

Offer-of-Settlement Insurance Aims to Protect Parties from Attorney Fee

Awards | Daily Report | By Greg Land | October 24, 2018

It’s a recurring dilemma for litigators: The case has been landed, and a
certified demand for settlement has been sent to the opposing party, who
responds with a less-than-satisfactory counter-offer. Take the offer? Or
refuse and risk going to trial, knowing that a loss or award that’s not much
higher than the spurned offer leaves the client at risk of having to pay
attorney fees under Georgia’s offer of judgment statute?
A recent arrival in Georgia’s insurance market can-for a price-help
alleviate some or all of that concern by covering any such fee awards
ranging from $10,000 to as much as $250,000. Lawyers whose clients
have purchased the policies-which are unregulated by the Georgia
insurance commissioner but are marketed as enforceable private
contracts-say it has worked well for them. But the policies are apparently
little known in Georgia, one of several states that have some form of offer
of settlement statute on their books.

The price [according to insurance company] varies depending upon the

amount of coverage and when it is obtained. The $10,000 policy, for
instance, costs $500 if purchased within 30 days of the offer of settlement
and tops out at $1,500 if purchased between 90 and 40 days before trial.

The $250,000 coverage starts at $12,500 and tops out at $37,5000 within
the 90- to 40- day window; the insurance is unavailable if the case is less
than 40 days from trial. The coverage is only payable if the case goes to
trial and does not apply to litigation that settles or is otherwise dismissed.

Under Georgia’s offer of settlement statute, a plaintiff who declines an

offer to settle a tort claim and then is awarded no more than 75 percent of
that offer may be held liable for the opposing party’s attorney fees and
expenses dating from the date of the rejected offer.

Similarly, a defendant who rejects an offer and then is hit with a judgment
of 125 percent or more than the offer also may face claims for the
plaintiff’s attorney fees. Marketed as (http://www.legalfeeguard.com/), the
coverage has been LegalFeeGuard available in Florida since 2012, said
Stephen van Wert of Founders Specialty Insurance in Tampa, the
managing general agent for the program.

Marketing materials tout the coverage as a way to both protect clients

from costly judgments and for lawyers to safeguard their contingency fees
Van Wert said that about 1,300 policies have been sold in Florida since
the insurance began being marketed; he estimates that 98 percent of the
coverage was sold to plaintiffs, although it is available to defendants as
well. “We have 300 or 400 lawyers who’ve bought it several times over the
years,” van Wert said.

The coverage is available to purchasers online. Georgia is the second

state where the insurance is being offered, van Wert said, although he
expects it to be offered elsewhere in the future. Insurance broker Ed Alden
of Roswell’s (https://aaapl.com/), who is Alden & Associates the sole
marketer of the policies in Georgia, said the coverage is not regulated by
Georgia’s insurance commissioner, but must be sold by an authorized
insurance carrier. “It’s essentially a contract between two private parties,”
Alden said. So far, he said, only a couple of policies have been sold in
Georgia. An advisory opinion from the Florida bar offers “no opinion on
whether the insurance product is legal,” but does state that its premium
constitutes a cost of litigation and, may be advanced by a litigation funding
company. State Bar of Georgia General Counsel Paula Frederick said she
was not prepared to offer any opinion concerning the insurance at this
point.

Van Wert counts several attorneys with Florida-based Morgan & Morgan
(https://www.forthepeople.com/), which has offices in 14 states including
Georgia, among his clients. Firm partner Matt Morgan said his clients have
bought the coverage in several cases. “My clients are the individuals who
purchased the policies, and I’ve never become aware of any complaint
from them,” said Morgan. “They’ve always indicated to me that the
process was seamless.”

Morgan said he “absolutely” supports the coverage, primarily because we

try a large number of cases, and we want out our clients to be aware of
every possible outcome, including that a party could file an offer of
judgment that could be in the hundreds of thousands of dollars. But most
attorneys queried by the Daily Report were either unaware of the
insurance or knew little about it. “I don’t have any personal knowledge [or]
experience with this type of product,” said Georgia Trial Lawyers
Association President Laurie Speed of Speed + King
(https://www.speedkinglaw.com/), who specializes in medical malpractice
cases. But, she said, “I understand that GTLA elected not to establish a
relationship with these folks when approached several years ago.” Speed
said queries to fellow officers indicated that most seldom dealt with offers
of settlement by defense counsel.

Several defense lawyers were similarly unfamiliar with the insurance and
indicated that it might deliver mixed results for plaintiffs. “I’ve heard about
this from some Georgia plaintiff attorneys, [but] have not understood it is
being done in Georgia,” said Gray, Rust, St. Amand, Moffett & Brieske
(https://www.grsmb.com/) partner Matt Moffett, a former president of the
Georgia Defense Lawyers Association. Moffett said an argument could be
made that “it’s a contract void as against public policy here if the policy
behind our statute is to facilitate settlement and put those at risk who
refuse reasonable offers.” But Jonathan Adelman of Waldon Adelman
Castilla Hiestand & Prout (http://www.wachp.com/) said the coverage
might be a boon for the defense. “I have not heard of this, despite
obtaining what we assumed were uncollectable, numerous attorney’s fees
awards,” Adelman said. “However, another purpose of the [offer of
judgment] statute is to shift the expense of litigation to the loser,” he said.
 “Traditionally, this meant nothing to the defendant as plaintiffs are
routinely judgment proof. This type of insurance may now allow for a
recovery.”

C. Florida Considers this Contract to Be Private Contract – Specialty

Insurance

Florida has tacitly recognized the sale of a product to “shift the risk” of loss of an
award of attorney’s fees since January 2010.

The Florida Bar wrote:

After full consideration of the issues, the committee voted 22-12 to

withdraw Florida Bar Staff 28705 and direct staff to issue a staff opinion
that concludes that the cost of a premium for an insurance policy that
would cover a judgment for attorney's fees and costs of the opposing
party under a proposal of settlement files under Florida Statutes §768.79
is a cost that may be advanced under Rule 4-1.8(e), but whether the
product is legal [5] or otherwise in compliance with ethics is outside the
scope of this staff opinion. Enclosed is a copy of Florida Bar Staff Opinion
28705 as written at the direction of the committee.

Florida Bar: Opinion: Professional Ethics Committee. January 5, 2010. A copy of the
Florida Opinion is attached hereto as Exhibit “A”.

The key holding of the Florida Opinion is that the “costs” advanced by the
(usually Plaintiff’s) attorney is considered to be a “cost” of the case. “[T]he cost of a
premium for an insurance policy that would cover a judgment for attorney's fees and
costs of the opposing party under a proposal of settlement files under Florida Statutes
§768.79 is a cost that may be advanced under Rule 4-1.8(e)”. Opinion, supra.
D. Georgia Should Follow Florida’s Lead

Georgia should consider following Florida’s lead in this area. Florida presently
allows the premium as a cost against any settlement; Georgia should allow the same.

The legislative history on OCGA § 9-11-68 shows that it came from Florida. SB
(Senate Bill) 3 passed in 2005 and brought this law to the forefront of Georgia civil
litigation. The March 2012 review by the Ga. St. U. Law Rev. Vol. 22: 23 (2015)
Georgia State Law School reviewed the history of the laws passed in 2005 including
SB3. Ga St. U. L. Rev. shows that SB3 was initially passed as a statute that follows in
line to Code Section OCGA § 9-15-14 (the abusive litigation statute). It appears that the
first iteration of the bill was actually OCGA § 9-15-16 which follows as two (2) code
sections directly after OCGA § 9-15-14. No doubt that it was amended to move the
numbering of the statute to conform to the offer of judgments (the 68 line of statutes).
 It appears to have been changed to match the federal rule, Rule 68, and other
states that use the "68" moniker in their statutes. For example, 768.79 Fla. Stat. Offer
of Judgment is the controlling statute in Florida. From an examination of Georgia
State’s review, it seems clear (though there is no direct citation) that Georgia acquired
this fee shifting provision from Florida. The language is so similar in the initial writing of
SB3 that it had to be taken from Florida. Ga. St. U. L. Rev. Vol 22:221-226 (2012).

This author looked at the Florida law concerning its current statute, section
768.79 Fla. Stat. and the enforcement provision of Fla.R.Civ. P. 1.442. The Florida law
appears to have been in effect at least a decade longer than SB3. A very well written
overview of the Florida Statute and litigation as it existed as of 2012 may be found at
Rehm, Lauren, A Proposal For Settling The Interpretation of Florida's Proposals for
Settlement. 64 Fla. L. Rev. 1811 (2012). Rhem’s extensive overview of this area of the
law states that much of Florida litigation turns on the interpretation of Fla.R.Civ.
P. 1.442. Georgia does not have a companion regulatory interpretation but instead
interprets the statute directly. Florida seems to do both – thus further complicating the
interpretation of the law in this area in Florida – but not Georgia.

Georgia has no regulatory scheme similar to Fla.R.Civ. P. 1.442 and I am

hopeful we never enact one.

IV. IMPORTANT ISSUES IN INTERPRETING OCGA § 9-11-68

A. Paying A Big Firm's Fees In A Plaintiff's Loss; Gowen Oil Company
A plaintiff in the Southern District of Georgia ended up paying a large firms
attorneys' fees of $300,000.00 for a loss on a Motion for Summary Judgment in a
complex case.
Plaintiff Gowen Oil Company, Inc. ("Gowen") sued Greenberg Traurig for legal
work done by Greenberg Traurig for its previous client Biju Abraham. While the facts
are somewhat complex, Gowen asserted that Greenberg Traurig conspired with its prior
client Abraham to interfere with Gowen's contractual rights to purchase a number of
filling stations in Georgia. Gowen Oil Company, Inc., v. Biju Abraham; Greenberg
Traurig, LLP, United States District Court for the Southern District of Georgia, CV-210-
157 (March 30, 2012).
Gowen asserted that Greenberg Traurig tortuously interfered with Gowen's Right
of First Refusal with regard to a pending sale of the filling stations. Gowen asserted
violations of Georgia's Bulk Transfer Act in Superior Court. Greenberg Traurig (or
perhaps another defendant) removed the case to the Southern District of Georgia based
on diversity jurisdiction.
According to the Court, the case was complex, involved extensive discovery and
substantial motion practice. Both parties sought extended discovery due to the large
number of parties and witnesses and some discovery was necessary outside of the
United States.
This case is particularly instructive for the application of Georgia's OCGA § 9-11-
68 attorney's fees statute when applied in federal court. At least at the district level,
OCGA § 9-11-68 has been found to be substantive law. Given that it's substantive, a
federal court sitting in diversity must apply it as the rule of decision.
Greenberg Traurig hired outside counsel of Rogers & Hardin in Atlanta and while
discovery was pending Rogers & Hardin sent an OCGA § 9-11-68 offer of settlement.
While the amount is not referred to in the case, a review of the docket on Pacer shows
that the offer to settle, including attorneys' fees and punitive damages was set at
$63,000.00. Gowen neither accepted nor rejected but went silent, which under the
statute is a rejection. Two months later Greenberg Traurig filed a Motion for Summary
Judgment. The Motion for Summary Judgment on all the substantive claims was
granted and some months thereafter Greenberg Traurig filed a Motion for its attorney’s
fees under 9-11-68.
Gowen's initial claim made out a claim for $35 million and by the time Greenberg
Traurig had succeed in obtaining a dismissal of all of the claims and asserting its
request for fees, it was entitled to fees in excess of $300,000.00. Due to various
withdrawals of certain claims and voluntary reductions on behalf of Greenberg Traurig's
part, the Court granted fees in the amount of $281,000.00 and Court costs of
$35,000.00.
The case is instructive for a number of reasons.
The Court sided with Greenberg Traurig that given the potential exposure, $35
million, plaintiff was not well grounded in its assertion that plaintiff used two lawyers and
a few paralegals while Greenberg Traurig employed eight lawyers and five support staff.
The Court found that Greenberg Traurig had a reasonable explanation for each attorney
and each paralegal and therefore granted fees for them all at a slightly reduced rate.
On a practice level, the case also provides a clear exhibit that was used by
Greenberg Traurig, prepared by Rogers & Hardin, from which a fairly clear OCGA § 9-
11-68 demand letter may be crafted. Exhibit B.
Additionally, the Motion prepared by Rogers & Hardin on behalf of Greenberg
Traurig is a fairly good form for use in federal court (and could be easily modified for
Superior Court). It is attached hereto as Exhibit C.
Gowen was affirmed in Gowen Oil Company vs. Greenberg Traurig, et al., United
States Court of Appeals for the 11th Cir. (December 13, 2011) (Unpublished).
B. Potential Bad Press Associated With Seeking Attorney's Fees: Hall v. 84
Lumber
 In an Order in Charles D. Hall, Plaintiff v. 84 Company; Darren Richardson; Keith
Conner; Robert Venal; Robert C. Venal, Inc., Defendants, United States District Court
for the Southern District of Georgia Savannah Division, Judge William T. Moore,
(March 28, 2012), Judge Moore “encouraged” the Defendants not to seek fees. Judge
Moore, while finding the OCGA § 9-11-68 Motion was hyper technically not ripe,
cautioned the Defendants concerning whether they should seek attorneys' fees of in
excess of $250,000.00 from the Plaintiff who lost his case.
The Court, in Hall v. 84 Lumber, supra, stated that:
Mr. Hall is not some deep pocket corporate entity. Rather, he was simply
an unfortunate delivery driver who suffered an injury when one of
defendant's employees ran over his foot with a forklift. Mr. Hall brought a
legitimate claim before this Court: whether defendants qualified as
statutory employers under Georgia law and, as a result, were shielded
from liability for his injury. In this Court's opinion, defendants need to ask
themselves whether the mere fact that Mr. Hall's counsel failed to
convince this Court that his client was meritorious should result in saddling
an injured blue-collar worker with not only the fallout from his injury but
also $271,000.00 of fees and expenses. This Court wonders whether this
is truly a position that a customer-service oriented business like 84
Lumbar should take. Perhaps the limited and general partners of
defendant 84 Lumbar should ask themselves the same question."
Hall v. 84 Lumber, supra at 5. (Order of March 28, 2012).
A review of the docket sheet concerning Southern District Case No. 4:09-CV-
00057-WTM-GRS shows that 84 Lumber dismissed the motion with prejudice and did
not refile it.
C. Small Jury Verdict for Plaintiff Equals Judgment for the Defendant
Abraham v. Hannah, 306 Ga.App. 735, 702 S.E.2d 904 (2010), is a case that has
a fairly shocking outcome under OCGA § 9-11-68. While Abraham was reversed on
appeal because the plaintiff did not have notice of the OCGA § 9-11-68 hearing, it
shows how a plaintiff may win and then lose under OCGA § 9-11-68.
Abraham (Plaintiff) recovered $850.00 in a jury verdict (this author admits that it's
in a tiny sum); however, prior to the jury verdict Hannah (defendant) had offered
$2,500.00 to Abraham to settle the case. After the jury verdict in Abraham's favor of
$850.00, the trial Court held a hearing and granted attorney's fees, pursuant to OCGA §
9-11-68, to Hannah in the amount of $2,425.00. Once the jury verdict of $850.00 was
subtracted from that amount the defendant (though the defendant lost at trial) had a
judgment in its favor against the successful plaintiff, Abraham, of $1,575.00.
While this case was reversed for lack of notice, it displays in stark contrast the
painful reality of an unaccepted offer in the face of a small jury verdict.
 D. Punitive Damages Count Toward the 75% - 125%
In Wildcat Cliffs Builders, LLC v. Hagwood, 229 Ga. App. 244, 663 S.E.2d 818
(2008), (This case was decided under prior law), plaintiff in the underlying action,
Hagwood, recovered a $90,000.00 compensatory award, $100,000.00 punitive damage
award and $14,688.56 in OCGA § 9-11-68 attorney’s fees.
The facts most favorable to Hagwood showed that Wild Cliffs Builders knowingly
encroached upon Hagwood’s property, built a retaining wall, refused to remove it and
then offered Hagwood only $10,000.00 in an effort to purchase an easement and a
complete release of liability. A jury awarded to Hagwood the amounts stated above.
Though decided under prior law, an interesting nuance out of the Wildwood Builders
case is that defendant/appellants took the position on appeal that punitive damages
should not be counted in calculating the OCGA § 9-11-68 award. Although it is unclear
whether the Georgia Court of Appeals simply said that they would or would not consider
the inclusion of punitive damages, they held that it was “moot” once they affirmed the
punitive damage award. Wildcat Cliffs, at 822.
In sum, the evidence showed that Wildcat had no interest in remedying or
lessening the run-off problem or compensating Hagwood for the property damage he
had sustained. Rather, it was amenable only to paying Hagwood for an easement and a
release from all liability arising from the retaining walls it had constructed on Hagwood's
property. The foregoing evidence was sufficient to authorize the jury's conclusion that,
after it learned of its trespass onto Hagwood's property and its creation of a continuing
nuisance thereon, Wildcat acted with a conscious indifference to the consequences of
its conduct.
Hagwood requested and received attorney fees and expenses pursuant to
OCGA § 9-11-68(b)(2). Prior to trial, Hagwood offered to settle the case for $110,000.
After the jury awarded him a total of $190,000 in damages, he was, therefore, statutorily
entitled to recover his attorney fees and expenses.
On appeal, Wildcat argued that this award must be overturned, because, in the
absence of the punitive damages award, Hagwood did not recover greater than 125%
percent of his Offer of Settlement. The Court of Appeals held that since it sustained the
award of punitive damages, that argument is moot.
It affirmed the entry of judgment against Wildcat in favor of Hagwood, including
the award of $100,000 in punitive damages and $14,688.56 in attorney fees and
expenses.
E. A Dismissal Without Prejudice Did Not Trigger the Award
In McKesson Corporation, et al. v. Green, et al., 286 Ga. App. 110, 648 S.E.2d
457 (2007), (decided under prior law), the Court of Appeals declined to award OCGA §
9-11-68 attorney’s fees where a demand had been made but plaintiff took a dismissal
without prejudice (OCGA § 9-11-41) prior to proceeding to trial. While the McKesson
case turned on complex issues associated with stockholdings, RICO allegations
concerning stockholdings and plaintiff’s apparent lack of an expert immediately prior to
trial, the OCGA § 9 11-68 issue was resolved by the Court of Appeals in that a voluntary
dismissal does not constitute the type of judgment or final judgment which will invoke
liability under the OCGA § 9-11-68 statute. The Court of Appeals wrote in that regard as
follows:
McKesson contends that the trial Court erred in denying its motion for
attorney’s fees under OCGA § 9-11-68(b)(1). That code section provides
that a defendant whose settlement offer is rejected shall recover attorney’s
fees and expenses of litigation “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.” The trial Court in this case entered no final judgment
within the meaning of the statute, and therefore did not err in denying this
motion. A right to dismiss voluntarily without prejudice would be
meaningless if doing so would trigger the payment of defendant’s
attorney’s fees. Without explicit language establishing that the legislature
intended to excise a plaintiff’s right to dismiss in this manner, this Court
will not engraft such an intention into the statute.
McKesson, at 462.
F. Courts Struggle With “Offers Not Made in Good Faith”
The trial courts and Georgia Court of Appeals have struggled with the defining
what constitutes and Offer not made in “good faith.” It is, somewhat, like trying to put a
subjective concept into an objective box. However, given that the General Assembly
has foisted O.C.G.A. § 9-11-68 upon us, we must do it. The most prominent case on
point is, Great West Cas. Co. v. Bloomfield, 313 Ga.App. 180, 721 S.E.2d 173 (2011).
A masterful overview of Bloomfield, at the trial level is found at: Clay, Jr., Charles
"Chuck" and Paupeck, Michael, Recent Decision Highlights Additional Issues with
Georgia's Tort Reform Act, Weinburg, Wheeler, Hudgins, Gunn & Dial, December 29,
2011. I reproduce it below (without indentions).
“On December 1, 2011 the Georgia Court of Appeals issued an opinion that
complicates efforts by defendants and their insurers to obtain fees and costs,
particularly in large damages cases. See, Bloomfield, supra. This appeal was taken
from a trial court’s denial of a motion for fees and costs pursuant to O.C.G.A. § 9-11-68,
Georgia’s offer of settlement statute. This statute is quite specific regarding the
procedure and essential terms of the written offer. If complied with, the statute states
that a defendant shall be entitled to recover reasonable attorney’s fees and expenses of
litigation incurred from the date an offer was rejected through entry of judgment, if the
final judgment is one of no liability or less than 75 percent of such offer of settlement.
That is, unless the trial judge determines that the offer was not made in “good faith.”
In Bloomfield, Judge Patsy Porter of the Fulton County State Court ruled that the
Great West Defendants’ $25,000.00 offer of settlement did not constitute a “good faith”
offer in a wrongful death trucking case, and, thus, she disallowed an award of
$69,000.00 in fees and costs to which these defendants were otherwise entitled under
the statute. The trial judge’s ruling and the ultimate decision on appeal were somewhat
surprising because these defendants won at trial and their written offer, in all technical
aspects, complied with the requisites of O.C.G.A. § 9-11-68. Moreover, in June of 2011,
the Court of Appeals held that a $750 offer was not made in bad faith in a slander case
and, therefore, upheld a $84,000.00 award of fees and expenses. The Bloomfield
decision makes clear that winning at trial does not guarantee a recovery of attorneys’
fees and costs. Unfortunately, it provides limited explanation as to exactly why the
particular offer was deficient and creates ambiguous precedent.
The underlying case in Bloomfield involved two separate collisions. In the first
collision, the tractor-trailer driver insured by Great West struck another vehicle while
changing lanes, causing an accident. Subsequently, the vehicle in which Mrs.
Bloomfield was a passenger slowed while approaching the original wreck and was
struck from behind by a second tractor-trailer, the driver of which admitted fault and was
ultimately assessed 100% liability. A Fulton County jury awarded $10.4M compensatory
damages and $44M in punitive damages (which were capped at $250,000.00 by
statute) against the defendants associated with the second tractor-trailer.
The specific issue on appeal was whether the trial court had abused its discretion
pursuant to subsection (d)(2) of O.C.G.A. § 9-11-68 in disallowing the fees and costs to
which the Great West Defendants were otherwise entitled. Subsection (d)(2) reads, “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.” (emphasis added). The trial court initially denied the
motion for fees without providing the statutorily required basis, so the Court of Appeals
first vacated that order and remanded the case back with instructions to explain the
basis for finding bad faith. See Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26,
693 S.E.2d 99 (2010); cf Cohen v. Alfred and Adele Academy, Inc., 310 Ga. App. 761,
714 S.E.2d 350 (2011) (trial courts are not required to make written findings of fact or
conclusions of law should they find that an offer was made in good faith). On remand,
the Bloomfield trial court supported its denial by stating: 1) $25,000.00 was not a
reasonable offer or realistic assessment of liability in a wrongful death case; 2) the
subject truck driver paid a traffic ticket fine for improper lane change; 3) defense
counsel made the offer without having even deposed a police officer on the scene who
later testified at trial; and 4) that the Great West Defendants eventually made a $1M
offer during trial, which Plaintiff rejected.
The case then went to the Court of Appeals a second time. Initially, it was
assigned to a three-judge panel which included Judges Anne Elizabeth Barnes, Harris
Adams and Keith Blackwell. They split 2-1 in favor of reversing the trial court on the
grounds that it had failed to justify the finding of bad faith. Because there was a split, an
expanded seven-judge panel was employed to resolve the split. Judge Barnes
apparently convinced the additional panel members to side with her, and in a 5-2
decision focusing heavily upon the abuse of discretion standard of review, the majority
upheld the trial court’s denial of fees and costs.
While upholding the trial court’s ruling, the Court of Appeals’ majority opinion
offered almost no analysis of the trial court’s four-part rationale for finding a lack of good
faith. The dissent raised frustration with that approach and then proceeded to delve into
a more detailed analysis in which they challenged each of Judge Porter’s four reasons.
Instead, the majority broadly stated that the trial court’s determination of the
reasonableness of an offer “is a factual determination, based on the trial court’s
assessment of the case, the parties, the lawyers, and all of the other factors that go into
such determination, which the trial court has gathered during of the case.” They did not
address: 1) whether the $25,000 offer was per se unreasonable in a wrongful death
case; 2) whether the fact that the subject truck driver paid a traffic ticket fine for
improper lane change properly supported a finding of bad faith; or 3) whether defense
counsel’s failure to depose a police officer on the scene who later testified at trial was
indicative of bad faith. The Court of Appeals did analyze the trial court’s fourth factor
and held that the trial court properly considered the fact that Great West made a $1M
settlement offer during trial.”
Id.
G. OCGA § 9-11-68 is Constitutional
Smith et al. v. Baptiste, et al., 287 Ga. 23, 694 S.E.2d 83 (2010), stands for the
proposition that the Supreme Court of Georgia found OCGA § 9-11-68 to be
constitutional.
The Baptistes filed a complaint for damages against Chuck Smith and the radio
station WQXI 790 AM after WQXI broadcast defamatory statements about the
Baptistes. While the case was pending and pursuant to OCGA § 9-11-68(a), Smith and
WQXI offered to settle the case for $5,000.00. The Baptistes did not respond to the offer
which was deemed a rejection under OCGA § 9-11-68(c). The Court granted summary
judgment.
Smith and WQXI moved for attorney’s fees pursuant to OCGA § 9-11-68(b)(1);
however, after a hearing, the trial Court denied Smith and WQXI’s motion for attorney’s
fees and found that the scheme enacted under OCGA § 9-11-68 was unconstitutional
and violated various provisions of the Georgia constitution.
In the Baptiste, supra, Mr. Justice Carley sketched out the background of OCGA
§ 9-11-68. He wrote that OCGA § 9-11-68 was enacted as part of the Tort Reform Act
of 2005. The scheme enacted under OCGA § 9-11-68(a) specifies that in a tort claim
either party may serve on the other party a written demand or offer to settle that tort
claim. If the settlement demand or offer is rejected, that party may be entitled to recover
attorney’s fees pursuant to OCGA § 9-11-68(b).
The Georgia Supreme Court overturned the trial Court on the finding that OCGA
§ 9-11-68 violated the “uniformity” clause of the Georgia constitution. The trial Court
apparently found that OCGA § 9-11-68 was non-uniform in that it applied only to tort
cases and not to civil cases including contract claims or other claims. That is, because it
did not apply to the entire class of civil cases but only to tort claims inside civil cases it
was therefore (in the trial Court’s opinion) unconstitutional.
The Georgia Supreme Court wrote that “our state Constitution only requires a law
to have uniform operation across all laws.” Baptiste, at 88.
Because the Supreme Court found that OCGA § 9-11-68 applied uniformly
across the state to all similarly situated tort claims, it was a general law and was
therefore uniform across those types of claims. It was therefore constitutional. Id.
V. FEDERAL COURT APPLICATION OF OCGA § 9-11-68
OCGA § 9-11-68 is Substantive Law in Federal Court.
Wheatley v. Moe's Southwest Grill, LLC, et al. 580 F. Supp. 2d 1324 (N.D. Ga.
2008), sheds light on some of the difficulties of the enforcement of OCGA § 9-11-68 (the
Georgia Offer of Settlement) in Federal Court. While many parts of this long and messy
case go beyond a simple discussion of OCGA § 9-11-68, it turned on an offer of 50,000
shares of stock in Moe's and related corporations [Mama Fu's Noodle House, Inc. and
Raving Brands Holding, Inc.] when Plaintiff, Wheatley, was promoted from employee to
company vice president with an equity share. When Wheatley resigned from the
corporation, she sought the 50,000 shares by written certificate. Because of the lack of
writing and ambiguity, litigation arose concerning whether the shares had to be issued.
An award of OCGA § 9-11-68 attorney's fees may not be had for the attorney's
fees incurred from an appeal from the District Court through the 11th Circuit and on
remittitur back to the District Court. Attorneys for Moe's Southwest moved for
$49,000.00 of attorney's fees incurred while the case was appealed from the District
Court through the 11th Circuit and back on remand to District Court. The United States
District Court for the Northern District of Georgia gave a short shrift to the request for
attorney's fees on appeal in federal Court and wrote: "The motion that seeks attorney's
fees and expenses of litigation incurred on appeal is meritless. The statute expressly
limits the award of attorney's fees and expenses to those incurred from the date of the
rejection of the Offer of Settlement to the date of entry of judgment … " 580 F. Supp. 2d
1326.
It is unclear, from Wheatley and similar cases, how practitioners are to deal with
cases that are a combination of contract claims, tort claims and hybrid claims. In
Wheatley, the Plaintiffs contended they were suing on contract for the 50,000 shares.
The defendants contended that it was a meritless tort suit, suit on breach of fiduciary
duties, conversion and other counts. The federal Court struggled with the question
concerning whether an OCGA § 9-11-68 Offer of Settlement could properly be made to
a case that had some contract claims buried in amongst tort claims. 580 F. Supp. 2d
1325 1327.
 While the trial court did not resolve this area of the law, he found that the statute
applied to any suit that involved a "tort claim" in the action. Thus, perhaps reading
between the lines, one can make an Offer of Settlement if any portion of Plaintiff's
complaint includes a well-defined "tort" claim. 580 F. Supp. 2d 1327. Perhaps the most
important determination out of Wheatley, supra, is that the Court specifically and
unequivocally held that OCGA § 9-11-68 offers apply as substantive law in federal
Court. While the Plaintiff argued that the Georgia statute was merely procedural and
could not be applied in federal Court, the Court found otherwise. The Court cited, Erie
Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188 (1938) and
its progeny, the Court found that it could (and perhaps was obliged to) apply state
substantive law on this particular issue. Id.
The Wheatley case goes on to show that it certified three (3) questions to the
Georgia Supreme Court. Research reveals that while the record was transferred to the
Georgia Supreme Court and the issues were placed before the Supreme Court, the
parties settled their claims and the Supreme Court allowed the case to return to the
District Court on remittitur without answering the certified questions posed in Wheatley.
See, the Order of the Supreme Court of Georgia dated April 28, 2009 and Wheatley,
returning the file to the United States District Court for the Northern District of Georgia
without an answer. Document 173 in United States District Court Northern District of
Georgia Case. No. 1:05 CV 02174 TCB.
VI. CONCLUSION
The Georgia Offer of Settlement statute OCGA § 9-11-68 is a powerful tool to
shift an opponent off the status quo and toward a resolution of the case. This paper has
shown that the drafter of the Offer must carefully follow the statute. A plaintiff must
recover more than 75% percent of a rejected offer or bear the defendant's fees and a
defendant must be confident that a plaintiff can recover no more than 125% percent of a
rejected offer or risk paying plaintiff’s counsel’s fees. This paper has reviewed the
statute’s potential for legal malpractice if an Offer is not made or not employed correctly.
It has reviewed the recent finding of constitutionality of the statute and looked at
additional recent cases.
Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084

hwood@woodandmeredith.com
Phone: 404-633-4100
Fax: 404-633-0068
 ENDNOTES

[1]

In 1989 the Georgia General Assembly, in its wisdom, gave us OCGA §§ 51-7-80 through 51-7-85. In that
abusive litigation/malicious prosecution scheme we, as practitioners, had to stay within the confines of two
paragraphs of OCGA § 51-7-84 to write a cogent and enforceable notice by certified mail to be able to enforce a
claim after the end of the suit. The General Assembly, in its wisdom, has now given us twenty-three (23) paragraphs
under OCGA § 9-11-68 to make an appropriate Offer of Settlement during a case.

[2]

What if the Complaint, is part in tort and part in contract? May one submit an OCGA § 9-11-68 Offer of
Settlement for the tort portions of the action? The United States District Court, Northern District of Georgia struggled
with this issue in Wheatley v. Moe’s Southwest Grill, LLC, et al., 580 Fed. Supp. 2d 1324 (2008). Unfortunately, there
is no clear answer from that case. The Federal Court certified the question to the Georgia Supreme Court; however,
the case then settled without an answer. Wheatly, supra, contains and interesting “chart,” delineating “tort,” causes of
action from “contract,” causes of action. 586 Supp. 2d 1324, 1326. This author’s personal opinion though is that this
expands litigation and makes the offers unwieldy and unfair, but “yes,” one can make Offers of Settlement to the tort
claims (inside) a larger complaint or petition.

[3]

There are substantial nuances in the concerning the making of an Offer of Settlement with regard to a
counter-offer and nuances with regard the effect of the withdrawal of an Offer on the collection of on attorney’s fees.
These are beyond the scope of this article.

[4] Prior Year Review of Cases:

E. 2014 Cases

1. Georgia Department of Corrections v. Couch, 295 Ga. 469, 759 S.E.2d 840
(2014) (Couch II) reversing Georgia Department of Corrections v. Couch, 322
Ga. App. 234, 774 S.E.2d 432 (2013)

2. Crane Composites Inc. v. Wayne Farms, LLC, et al, 296 Ga. 271, 765 S.E.2d
921 (2014)

F. 2013 cases

1. Gowen Oil Company v. Biju Abraham, et al., 511 F. App’x, 930,

936 (11th Cir. 2013)

D. 2014 Cases

In Couch II, infra, the Supreme Court applied OCGA § 9-11-68 to the State of Georgia and held
that sovereign immunity was waived as to an attorney fee application against the State. In Crane
Composites, infra, the court held that OCGA § 9-11-68 may be applied when the injury occurred before the
date of the statute but the action was filed after the date of the statute. And in the second appearance of
Canton Plaza, infra, again reveals that to obtain an OCGA § 9-11-68 award that will survive appeal requires
segregation of attorney’s fees to the negligence report claim on which the losing party failed to accept the
tendered offer.

1. Ga. Department of Corrections v. Couch, 295 Ga. 469, 759 S.E.2d 804 (2014) (Couch II)
reversing Ga. Department of Corrections v. Couch, 322 Ga.App. 234, 744 S.E.2d 432
(2013).
 Sovereign Immunity Waived OCGA § 9-11-68. David Lee Couch filed a tort lawsuit against the
Georgia Department of Corrections. After the Department rejected Couch's offer to settle the case for $24,
000, the case proceeded to trial, where the jury returned a verdict for Couch in the amount of $105, 417.
Based on Couch's 40% contingency fee agreement 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). [The contingent award was reversed on appeal. It consisted in part of fees on appeal which
are not within the statute. It seems somewhat unclear whether a contingent fee may stand (alone) for an
award under OCGA § 9-11-68.]

This Supreme Court then granted certiorari to address sovereign immunity.

1. Did the Court of Appeals err when it held that the sovereign immunity of
the Department was waived by the Georgia Tort Claims Act as to Couch's attorney fees?

2. If the sovereign immunity of the Department was waived as to Couch's attorney fees, did
the Court of Appeals err by failing to prorate the 40% contingency fee to reflect 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).

2. Crane Composites, Inc. v. Wayne Farms, LLC, et al., 296 Ga. 271, 765 S.E.2d 921 (2014)

The question for decision in this case is whether OCGA § 9-11-68, 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. The Court answered this question affirmatively and, in so doing, they overruled L. P. Gas
Industrial Equipment Co. v. Burch, 306 Ga.App. 156, 701 S.E.2d 602 (2010).

3. McCarthy, et. al. v. Yamaha Motor Man. Corp., 994 F.Supp.2d 1329 (N.D.Ga. 2014).

In an unusual case the United States District Court for the Northern District of Georgia applied
Georgia's fee shifting statute under OCGA § 9-11-68 to a personal injury claim that occurred in Queensland,
Australia. The plaintiff was severely injured, with spinal injuries, in a Yamaha WaveRunner™ accident in
Queensland. The Yamaha WaveRunner™ was manufactured by Yamaha in Newnan, Georgia.

The plaintiff chose to sue in the United States District Court for the Northern District of Georgia
instead of the Commonwealth Courts in Queensland, Australia. The Court accepted the claim based on
diversity pursuant to 28 U.S.C. § 1332 and retained the case. While the Court's order only proceeds through
the application of which law shall apply, the parties struggled concerning whether to apply the legal
standards of Australia or Georgia.

For simplicity Georgia tends not to apply fixed caps to products liability claims or punitive damages
whereas the Commonwealth Courts in Queensland apply a cap of approximately $230,000.00 (AUD) to
compensatory damages (general damages including emotional distress, pain and suffering and other
economic damages and Australia provides a $274,000.00 (AUD) cap on strict liability claims.) Australia also
capped lost income. The plaintiffs argued for the application of Georgia law even though the injury occurred
in Australia and the Court eventually applied Australian law. The plaintiff was unable to show that the public
policy of Georgia was such that Australian caps on damages and punitive damages should not be applied.

However, the determination of attorneys' fees was decided by the Court to apply Georgia law.
Australian expert affidavits showed that Queensland would apply the "English rule," that generally provides
the winner of the lawsuit is able to shift the attorneys' fees to the loser. Georgia, instead, applies statutory
fee shifting including, which the Court discussed at some length. Because the Australia law was general
common law in Georgia had specific statutes on point, including OCGA § 9-11-68, the Court decided to
apply the specific Georgia statute instead of the general common law of Australia on attorneys' fees.
 The resolution of the case is not revealed in the published Order.

4. Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC v. Teledyne Technologies, Inc., 090913
GANDC, 1:12-cv-0686-JEC

OCGA § 9-11-68 is mentioned as part of an Order in case by an Atlanta law firm to collect its fees.
The law firm prevailed on the collection of fees. However, the Order contains a discussion of the denial of
the application of OCGA § 9-11-68.

In the underlying case (which generated the fee litigation based on losing Defendant’s nonpayment
of the law firms fees) Plaintiff’s (in the underlying case) asked the jury for $17,000,000.00. The jury returned
$1,700,000.00. Defendant offered $3,000,000.00 prior to trial to settle, apparently within OCGA
§ 9-11-68(a). The Court refused to apply the fee shifting statute citing the offer as 5 days late. While
perhaps obvious on the application of the statute, this Order again shows the rigid application of this statute
and how every part of the offer must come within the four (4) corners of the statute.

E. 2013 Cases

1. Gowen Oil Company v. Biju Abraham, et al., 511 F. App’x, 930, 936 (11th Cir. 2013).

A frivolous case can generate a massive fee claim. In the 2013 overview of this area of the law,
Gowen Oil Company v. Biju Abraham, et al, stands out as the poster-child for an OCGA § 9-11-68 award of
attorney's fees in Federal court.

In that convoluted legal malpractice case where Abraham asserts that his former counsel
Greenberg Traurig, LLP preferred some of his existing clients over Abraham and caused him damages
based on the sale of convenience stores in South Georgia, his action to sue Greenberg Traurig backfired
significantly in attorney's fees. As stated in the Southern District of Georgia trial court, Greenberg Traurig
offered $63,000.00 early on to settle the claim and be done with it. The case continued for a number of
months whereupon the Southern District of Georgia granted summary judgment in favor of Greenberg
Traurig and awarded in excess of $300,000.00 of attorney's fees (primarily generated by Rogers & Harden
of Atlanta) against Plaintiff.

The trial court found that the case was without merit, that the attorney's fees were appropriate, that
it really didn't make any difference whether they used Atlanta attorney's fees or Brunswick-based attorney's
fees because the amounts were similar based on a 10 percent discount, that paralegal fees were
recoverable and (more specifically) that defendant is entitled to determine how many paralegals and lawyers
it intends to use to defend the case within reason and the fact that plaintiff used only two lawyers and two
paralegals did not control what resources Greenberg Traurig felt were necessary to defend itself.

Perhaps one of the more cogent arguments is that appellant argued Greenberg Traurig should not
be entitled to attorney's fees because those fees were covered by an insurance policy for legal malpractice.
The court rejected that argument and did not weigh into the possibility of a double recovery where the
attorney's fees were recovered despite the fact they'd been paid for by insurance. The court simply said that
OCGA § 9-11-68 is designed to encourage settlements and it refused to look at whether the fact that fees
were covered by insurance. Malpractice insurance did not insulate Gowen from the payment of legal fees
and expenses under OCGA § 9-11-68.

&&&

The 2012 Version of this paper extensively reviewed OCGA § 9-11-68 as a statutory scheme of
“Betting the Spread,” in game theory. That paper also reviewed academic statistical reviews of whether
Offers of Settlement statutes (throughout the United States) do, in fact, reduce litigation?

Prior versions of this Paper, 2011 to 2014, reviewed the application of Fed.R.Civ.P. 68 to case.
Those prior versions are available from ICLEGA.ORG
[5]

Whether this risk shifting contract is “insurance” under Georgia law is beyond the scope of this paper. This
author offers no opinion on same. OCGA § 33-1-2. “Definitions (2) ‘Insurance’ means a contract which is an integral
part of a plan for distributing individual losses whereby one undertakes to indemnify another or to pay a specified
amount or benefits upon determinable contingencies.”
 EXHIBITS

EXHIBIT A: Florida Bar: Opinion: Professional Ethics Committee. January 5, 2010.

EXHIBIT B: OCGA § 9-11-68 demand letter: Rogers & Hardin.

EXHIBIT C: OCGA § 9-11-68 Motion prepared by Rogers & Hardin on behalf of

Greenberg Traurig is a fairly good form for use in federal court (and can be easily
modified for Superior Court).
EXHIBIT A
EXHIBIT B
EXHIBIT B
EXHIBIT C