Settlement offers and trial awards intersect under Georgia law in a specific way that can carry significant financial consequences. The principal statute is O.C.G.A. Section 9-11-68, which is often referred to as Georgia’s offer of settlement statute or Georgia’s Rule 68. The statute was enacted in 2005 as part of a broader tort reform package and has been the subject of repeated appellate decisions clarifying its operation. In commercial trucking litigation, where damages can be substantial and litigation costs are high, the statute is a regular feature of pretrial strategy. This guide explains the framework.
What the Statute Does
O.C.G.A. Section 9-11-68 establishes a mechanism by which either party in a tort action can make a written settlement offer, with statutory consequences attached if the offer is rejected and the rejecting party then fares less well at trial. The statute does not require any party to make an offer, and it does not require any party to accept one. What it does is create a cost-shifting rule that can be triggered when the trial outcome compares unfavorably to a previously rejected offer.
Timing and Form of an Offer
The statute provides that an offer of settlement may be served on the opposing party no earlier than 30 days after the service of the summons and complaint. The offer must be served at least 30 days before trial, except that a counteroffer may be served as late as 20 days before trial. The offer must be in writing, identify the party making it and the party to whom it is made, state that it is made under O.C.G.A. Section 9-11-68, and specify the amount and any conditions of the offer. The party receiving the offer has 30 days to accept it. If no acceptance is received within that period, the offer is deemed rejected.
The Cost-Shifting Triggers
The statute provides two pathways to a cost-shifting award.
If a defendant makes an offer of settlement that is rejected by the plaintiff, and the final judgment obtained by the plaintiff is one of no liability or is less than 75 percent of the offer, the defendant is entitled to recover reasonable attorney fees and expenses of litigation incurred from the date the offer was rejected through the entry of judgment. In a trucking case, this means that a plaintiff who turns down a substantial defense offer and then receives a defense verdict or a verdict considerably below the offer can be required to pay the defense’s post-offer fees and costs.
If a plaintiff makes an offer of settlement that is rejected by the defendant, and the plaintiff recovers a final judgment in an amount greater than 125 percent of the offer, the plaintiff is entitled to recover reasonable attorney fees and expenses of litigation incurred from the date the offer was rejected through the entry of judgment. The mirror image scenario in a trucking case is a defendant who turns down a plaintiff’s offer and then loses at trial for an amount substantially above the offer.
The 75 percent and 125 percent thresholds are calculated against the amount of the offer. The comparison is between the offer and the final judgment, not between the offer and an intermediate jury verdict, although the two often coincide.
The Good Faith Requirement
The statute also contains a safety valve. The court may determine that an offer was not made in good faith and, on that basis, disallow the cost-shifting award. The order making this finding must state the basis for the conclusion. Georgia appellate courts have explored the good faith requirement in several decisions, focusing on whether the offer had a reasonable foundation in the facts and law as they appeared at the time the offer was made.
The good faith inquiry is fact-driven. A nominal offer made in a serious-injury trucking case with clear liability has been viewed differently than an offer that reflected a defensible assessment of contested issues.
What “Final Judgment” Means
The statute uses the term “final judgment” as the benchmark for comparison. Georgia courts have addressed what is and is not included in the final judgment for this purpose, including questions about prejudgment interest, costs, and attorney fees recovered on other grounds. Decisions of the Court of Appeals and the Supreme Court of Georgia have refined the answer over time, including the question whether attorney fees recovered under O.C.G.A. Section 13-6-11 may be combined with fees recovered under Section 9-11-68 in certain circumstances. The Supreme Court of Georgia has held that the two statutes serve different purposes and can both apply in appropriate cases.
Calculation of Fees
When the statute is triggered, the prevailing offeror is entitled to “reasonable attorney’s fees and expenses of litigation” incurred from the date of the rejection through the entry of judgment. The reasonableness inquiry is conducted by the trial court and typically involves the submission of itemized fee records and a hearing. The fee award is mandatory if the statutory conditions are met and no good faith exception applies, although the amount remains within the trial court’s discretion to evaluate.
Application to Trucking Cases
In commercial trucking litigation, three features of the statute are especially significant.
First, trucking cases often involve substantial insurance coverage and corporate defendants with resources to fund a defense, which can make the prospect of a fee-shifting award meaningful on either side.
Second, trucking cases frequently produce wide ranges of potential outcomes, with significant variance between liability and damages assessments. The threshold comparisons in the statute create incentives to evaluate cases realistically before trial.
Third, the statute interacts with several other features of Georgia tort practice that bear on trucking cases, including the apportionment statute at O.C.G.A. Section 51-12-33 and the punitive damages framework at O.C.G.A. Section 51-12-5.1.
Direct Action Considerations
Georgia historically permitted plaintiffs in many trucking cases to bring a “direct action” against the motor carrier’s insurer alongside the claim against the carrier itself. In 2024, Senate Bill 426 amended O.C.G.A. Sections 40-1-112 and 40-2-140 to narrow the circumstances in which direct actions are permitted. For causes of action accruing on or after July 1, 2024, direct actions against the insurer of a motor carrier are limited to specific circumstances, such as where the motor carrier is insolvent or bankrupt or where personal service cannot be effected on the driver or the carrier. The change has implications for how offers of settlement under O.C.G.A. Section 9-11-68 are structured in cases involving motor carrier insurers.
Interaction With Other Cost and Fee Statutes
O.C.G.A. Section 9-11-68 is not the only source of attorney fee exposure in Georgia tort litigation. O.C.G.A. Section 13-6-11 allows recovery of fees where a defendant has acted in bad faith, been stubbornly litigious, or caused unnecessary trouble and expense. O.C.G.A. Section 9-15-14 addresses fees for frivolous claims, defenses, or actions. Each statute has its own requirements and standards, and the interplay among them in a given case is determined by the trial court and reviewed on appeal.
Closing Note
Georgia’s offer of settlement statute creates a structured framework in which a pretrial offer can have significant consequences if the trial outcome compares unfavorably. The thresholds at 75 percent and 125 percent of the offer, the good faith requirement, and the mandatory nature of the fee award when statutory conditions are met combine to make O.C.G.A. Section 9-11-68 an important feature of commercial trucking litigation in Georgia. The precise calculation in any particular case depends on the timing and content of the offer, the substance of the final judgment, and the trial court’s evaluation of reasonableness and good faith.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
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