Offers of settlement and litigation fees in Georgia truck cases

Timing, form and service of an offer under O.C.G.A. 9-11-68(a)

Section 9-11-68(a) allows an offer "At any time more than 30 days after the service of a summons and complaint on a party" and no later than 30 days before trial. For a counteroffer in a truck crash suit or any other tort suit, the closing point is 20 days before trial. Either party may serve the offer upon the other party, but the offer is not filed with the court, and it is "denominated as an offer under this Code section." In a pending tort suit over a truck accident, either side, including a trucking company named as a defendant, may serve such an offer, because the subsection extends the right to either party within that same window.^[1]

Section 9-11-68(a) then sets out what any offer under the section requires. The offer is in writing and states that it is made pursuant to the section. It identifies the party or parties making the proposal, such as a truck driver or a trucking company, and the party or parties receiving it, and it identifies generally the claim or claims the proposal is attempting to resolve. It states any relevant conditions with particularity and states the total amount of the proposal. It states with particularity the amount proposed to settle a claim for punitive damages, if any. It states whether the proposal includes attorney's fees or other expenses and whether those fees or expenses are part of the legal claim. Finally, it includes a certificate of service and is served by certified mail or statutory overnight delivery "in the form required by Code Section 9-11-5." An offer in a tort suit arising from a truck crash is held to these same content requirements of Section 9-11-68(a).^[1]

Open period, acceptance, rejection and admissibility under O.C.G.A. 9-11-68(c)

Under Section 9-11-68(c), an offer "shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree." An offeror, including a party to a truck crash suit, is not entitled to attorney's fees and costs under subsection (b) to the extent an offer is not open for at least 30 days, unless it is rejected during that 30 day period. A counteroffer is deemed a rejection, but it may serve as an offer under the section if it is specifically denominated as one. In a tort suit over a truck accident, the side answering an offer can therefore reject it by counteroffer and, through that denomination, start a new offer of its own under Section 9-11-68(c).^[1]

Section 9-11-68(c) also governs the response. Acceptance or rejection of the offer by the offeree is in writing and served upon the offeror. An offer in a truck accident suit that is neither withdrawn nor accepted within 30 days is deemed rejected. The fact that an offer is made but not accepted does not preclude a subsequent offer, so the parties to a truck crash tort suit may exchange later offers under the section. 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." The same admissibility limit in Section 9-11-68(c) applies whether the offeror is the injured person or a trucking company.^[1]

Attorney's fees and expenses after a rejected offer under O.C.G.A. 9-11-68(b) and (d)

Section 9-11-68(b)(1) applies when a defendant makes an offer of settlement that the plaintiff rejects. 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 through the entry of judgment. That entitlement arises only if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of the offer. When a trucking company is the defendant in a truck accident tort suit and its offer is rejected, its fee claim depends on those same no liability and 75 percent conditions.^[1]

Section 9-11-68(b)(2) covers the reverse situation. If a plaintiff makes an offer of settlement that the defendant rejects, and the plaintiff recovers a final judgment greater than 125 percent of the offer, the plaintiff is entitled to reasonable attorney's fees and expenses of litigation incurred by or on behalf of the plaintiff from rejection through entry of judgment. A plaintiff hurt in a truck crash whose offer a defendant rejects faces that 125 percent threshold, while the 75 percent threshold in Section 9-11-68(b)(1) applies only to an offer made by a defendant.^[1]

Section 9-11-68(d)(1) provides that, in a truck accident suit as in any other tort suit, 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 paragraph (1) or paragraph (2) of subsection (b) applies. If an appeal is taken from that judgment, the court orders payment only upon remittitur affirming the judgment. Under Section 9-11-68(d)(2), when a party is entitled to costs and fees under the 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 that case, the court may disallow an award of attorney's fees and costs, including to a party in a truck crash suit. How courts apply this good faith standard is decided by court decisions, which this entry does not cover.^[1]

Frivolous claims and defenses under O.C.G.A. 9-11-68(e)

Section 9-11-68(e) allows a motion by the prevailing party at the time the verdict or judgment is rendered. Through it, the moving party, such as a trucking company or an injured person in a truck crash suit, may request that the finder of fact determine whether the opposing party presented a frivolous claim or defense. The court then "shall hold a separate bifurcated hearing" at which the finder of fact decides whether such frivolous claims or defenses were asserted and awards damages, if any, against the party presenting them. In a tort suit arising from a truck accident, the statute places this motion with the prevailing party at the time of verdict or judgment, as with any other tort claim.^[1]

Under Section 9-11-68(e)(1), frivolous claims include, without limitation, a claim, defense or other position that lacks substantial justification or that is not made in good faith. Subparagraph (A) of paragraph (e)(1), which contains those positions, also reaches a position made with malice or a wrongful purpose, "as those terms are defined in Code Section 51-7-80." Subparagraph (B) of paragraph (e)(1) separately reaches a position with such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept it. A claim, defense or other position interposed for delay or harassment is also included. Under Section 9-11-68(e)(2), damages awarded in a truck accident suit or any other tort suit may include reasonable and necessary attorney's fees and expenses of litigation. Under Section 9-11-68(e)(3), a party in a truck crash tort suit may elect to pursue either this procedure or "the procedure specified in Code Section 9-15-14, but not both."^[1]

Attorney's fees for frivolous actions and defenses under O.C.G.A. 9-15-14

O.C.G.A. 9-15-14 is in Chapter 15 of Title 9, Court and Litigation Costs, as its official code hierarchy shows. Section 9-15-14(a) reaches any civil action in any court of record of the state, and its text names no particular subject such as truck accidents. In such an action, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party asserted a claim, defense or other position so lacking in any justiciable issue of law or fact that a court could not reasonably be believed to accept it. The award is assessed against the asserting party, that party's attorney, or both, as is just. Under Section 9-15-14(b), the court may assess such fees on the motion of any party or on its own if it finds that an attorney or party brought or defended an action, or any part of one, that lacked substantial justification or was interposed for delay or harassment. The court may also do so if an attorney or party unnecessarily expanded the proceeding by other improper conduct, including abuses of discovery procedures under the Georgia Civil Practice Act. In Section 9-15-14(b), lacked substantial justification "means substantially frivolous, substantially groundless, or substantially vexatious." Section 9-15-14(c) bars fees as to any claim or defense the court determines was asserted in a good faith attempt to establish a new theory of law in Georgia, if that theory is based on some recognized precedential or persuasive authority. Section 9-15-14(d) limits awards to amounts reasonable and necessary for defending or asserting the rights of a party, and lets the court include fees and expenses incurred in obtaining its order. Under Section 9-15-14(e), a motion in a truck accident suit or any other civil action may be made at any time during the action but not later than 45 days after the final disposition of the action. Under Section 9-15-14(f), the court determines the award without a jury, and the award shall be made "by an order of court which shall constitute and be enforceable as a money judgment." Under Section 9-15-14(g), fees and expenses awarded in a prior action between the same parties are treated as court costs with regard to filing any subsequent action. Section 9-15-14(h) provides that the section does not apply to proceedings in magistrate courts, except that when a case is appealed from the magistrate court, the appellee may seek litigation expenses incurred below if the appeal lacks substantial justification.^[2]

Motor vehicle settlement offer provisions in O.C.G.A. 9-11-67.1(i) and (j)

O.C.G.A. 9-11-67.1(i) is outside this entry. It bars a civil action over a recipient's alleged failure to settle a tort claim for personal injury, bodily injury, or death arising from a motor vehicle collision. That bar applies when the recipient, on or before the dates specified in the offer, provides a writing accepting the material terms other than the amount of payment, any required sworn statement regarding insurance coverage, and payment of the lesser of the amount demanded or the available bodily injury liability limits. Under O.C.G.A. 9-11-67.1(i)(3), where the recipient does not comply with paragraph (1) in response to an offer made in compliance with subsection (b) of Section 9-11-67.1, the bar does not apply to any subsequent motor vehicle settlement offer. O.C.G.A. 9-11-67.1(j), which provides that Section 9-11-67.1 does not apply to any offer to settle a product liability claim, is also outside this entry. Under O.C.G.A. 9-11-67.1(i)(2), except as provided in paragraph (3), subsection (i) applies "to any offer to settle a tort claim for personal injury, bodily injury, or death arising from a motor vehicle collision," even where the offer states otherwise, and is not limited to offers made under subsection (b) of Section 9-11-67.1. The text of subsection (i) and subsection (j) does not mention offers under Section 9-11-68, and the text of Section 9-11-68 does not mention Section 9-11-67.1. Court decisions decide how subsection (i) and Section 9-11-68 apply together in truck accident suits, and this entry does not cover those decisions.^[3]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)