Georgia’s offer of settlement statute, often called the offer of judgment statute, can shift responsibility for attorney’s fees and litigation expenses based on how a tort case ends compared to a settlement offer that was rejected. In truck accident litigation, where the stakes and the litigation costs are frequently high, this statute can have a substantial effect on the final financial outcome. This guide explains how the statute works and how it bears on fee recovery after trial.
The statute and its purpose
The offer of settlement statute is codified at O.C.G.A. § 9-11-68. It applies in tort actions, a category that includes truck accident personal injury and wrongful death cases. The stated purpose of the statute is to encourage litigants to make and accept good faith settlement offers and to avoid unnecessary litigation, consistent with Georgia’s policy favoring settlement.
The statute operates as a cost-shifting mechanism. It does not change who wins or loses a case. Instead, it can require one party to pay the other party’s attorney’s fees and litigation expenses incurred after a rejected offer, depending on how the final judgment compares to that offer.
How an offer must be made
An offer under O.C.G.A. § 9-11-68 must meet specific formal requirements. It must be in writing and state that it is being made under the statute. It must identify the parties making and receiving it, identify generally the claims being resolved, state any conditions with particularity, and state the total amount of the proposal. It must include a certificate of service, and it is served by certified mail or statutory overnight delivery.
The statute also sets timing rules. An offer generally may not be made until more than 30 days after the defendant is served with the complaint, and it must be served at least 30 days before trial. A counteroffer has its own timing window. An offer that is not accepted within the allowed period, which is typically 30 days, is deemed rejected.
The two cost-shifting triggers
The statute creates two mirror-image scenarios, one favoring defendants and one favoring plaintiffs.
If a defendant makes an offer that the plaintiff rejects, and the final judgment is one of no liability, or the plaintiff’s final judgment is less than 75 percent of the defendant’s offer, the defendant may recover reasonable attorney’s fees and litigation expenses incurred from the date the offer was rejected through the entry of judgment.
If a plaintiff makes an offer that the defendant rejects, and the plaintiff recovers a final judgment greater than 125 percent of the plaintiff’s offer, the plaintiff may recover reasonable attorney’s fees and litigation expenses incurred from the date the offer was rejected.
In both situations, the fees and expenses that may be shifted are limited to those incurred after the rejection. Costs and fees from the early part of the case, before any offer was rejected, are not affected.
How this plays out in truck litigation
Truck accident cases often involve extensive discovery, multiple experts, accident reconstruction, and large damages claims. Because the statute shifts post-rejection fees, the financial exposure under O.C.G.A. § 9-11-68 can be significant in these cases.
For a defendant, a rejected offer that turns out to be far above what the plaintiff ultimately recovers, or a defense verdict after a rejected offer, can convert into a fee award against the plaintiff. For a plaintiff, an offer that the defense rejects, followed by a verdict well above that offer, can produce a fee award against the defendant on top of the verdict. The 75 percent and 125 percent thresholds set the dividing lines.
The good faith requirement
The statute includes an important safeguard. Even when a party would otherwise be entitled to fees and costs under the statute, the court may determine, in a written order setting out the basis for the finding, that the offer was not made in good faith. If the court makes that finding, it may disallow the fee and cost award. This good faith provision discourages token or nominal offers made only to set up a fee claim, and it gives trial courts discretion to police the use of the statute.
How fees are measured
When a fee award is granted, the amount is the reasonable attorney’s fees and litigation expenses actually incurred during the relevant period, not an automatic or formulaic figure. Georgia courts have addressed how reasonableness is shown. Notably, the Georgia Supreme Court has held that a plaintiff’s recoverable fees under the statute cannot be based solely on a contingency fee agreement; the reasonableness of the fees must be established by appropriate evidence. Courts have also addressed how O.C.G.A. § 9-11-68 interacts with other fee statutes, such as O.C.G.A. § 13-6-11, in cases where more than one fee provision is in play.
Procedural points after trial
A request for fees and costs under the statute is generally made after the final judgment, once it is possible to compare the judgment to the rejected offer. The party seeking fees must show the offer met the statutory requirements, that it was rejected, and that the judgment fell on the cost-shifting side of the applicable threshold. The opposing party may contest the amount, the reasonableness of the fees, and whether the offer was made in good faith.
The honest picture
O.C.G.A. § 9-11-68 adds a layer of financial consequence to the decision to accept or reject a settlement offer in Georgia tort litigation, including truck accident cases. It can result in a post-trial award of attorney’s fees and litigation expenses against the party whose rejected offer is measured unfavorably against the final judgment. The statute is technical, the formal requirements for a valid offer must be met, the cost-shifting applies only to post-rejection fees, and trial courts retain discretion to deny fees where an offer was not made in good faith. How the statute affects any particular case depends entirely on the offers actually made and the outcome reached.
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.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.