A guide for new plaintiff’s attorneys
Georgia’s Offer of Settlement statute is found in O.C.G.A. § 9-11-68. Georgia’s statute is different than federal Rule 68, and is modeled after Florida’s Offer of Judgment statute. Richardson v. Locklyn, 339 Ga. App. 457 (2016). These special offers or demands are often referred to by the abbreviation “OOS.”
Anytime more than 30 days after service, but not less than 30 days before trial (or 20 days before trial if it is a counteroffer), either the plaintiff or the defendant can send an OOS to the other side. They are not filed with the court but must be sent by certified mail or overnight delivery.
Mandatory elements of an OOS
Every OOS 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.
This hearing must be requested during the same term of court in which the court enters final judgment.
If the case involves punitive damages, the OOS must state with PARTICULARITY the amount of the settlement to be attributed to the punitive damages claim. O.C.G.A. § 9-11-68(a)(6). Chadwick v. Brazell, 331 Ga. App. 373 (2015).
The failure to state with particularity the amount that is attributable to the punitive damages claim has been found by at least one trial court as a reason to invalidate the OOS. IVC US, Inc. v. Linden Bulk Transp. SW, LLC, No. 4:15-CV-0120-HLM, 2017 U.S. Dist. Lexis 222402 (N.D. Ga. May 31, 2017).
In order to trigger the fees and expenses-of-litigation provisions, the offer must remain open for 30 days. If accepted by the other side, the case is settled under the terms and conditions outlined in the OOS.
If not accepted after 30 days (or if rejected in writing sooner), the OOS is then eligible to be triggered by the sending party if it obtains a favorable result at trial. The sending party triggers the fees and expenses-of-litigation provisions by exceeding the amount in the OOS by 25%.
Thus, a plaintiff must obtain a final judgment amount greater than 125% of the OOS amount to request the fees and expenses of litigation. A defendant is entitled to fees and expenses when the plaintiff fails to obtain a final judgment amount that is at least 75% of the OOS amount sent by the defendant. The amount that determines if the fees-and-expenses provision is triggered is the final judgment amount, not the verdict.
The fees and expenses run from the date the OOS was rejected (typically 30 days after service of the OOS) and not for the length of the entire case or since the date of the incident.
After trial, the court must hold a hearing to determine if the OOS was sent in good faith and to determine if the fees and expenses should be awarded and in what amount. Richardson v. Locklyn, 339 Ga. App. 457 (2016). The party seeking to avoid the fees and expenses bears the burden of proof to demonstrate the absence of good faith in the sending party’s OOS. At this hearing, the trial court must consider both objective and subjective factors indicating the good faith of the OOS.
The court will consider the sending party’s explanation of why the OOS was sent, the conduct of the parties and attorneys, as well as several objective factors:
(1) Whether the offer bore no reasonable relationship to the amount of damages;
(2) A realistic assessment of the liability;
(3) That the offeror lacked the intent to settle the claim;
(4) Whether the offer was made prematurely based upon the amount of discovery completed;
(5) The plaintiff’s medical records;
(6) Independent medical examination reports; and
(7) The amount of property damage.
It is important to note that this hearing MUST be requested in the same term of court during which the final judgment was rendered. Med. Ctr. of Cent. GA v. Cancel, 356 Ga. App. 529, 848 S.E.2d 150 (2020).
You should always combine your OOS with a prejudgment-interest demand (O.C.G.A. § 51-12-14). All that is required to do this is to add the prejudgment-interest demand to your OOS template and reference the prejudgment-interest statute. The prejudgment-interest demand works in combination with, but also independently from, the OOS.
If you trigger the OOS threshold, you can recover both the fees and expenses and the prejudgment interest on the OOS amount. But even if you fail to trigger the OOS, you can still recover the interest on the amount demanded if you exceed the demand amount at trial. And because prejudgment interest is added to the verdict amount before the entry of final judgment (along with costs for filing and service), the addition of prejudgment interest can significantly lower the verdict that is required for the final judgment amount to trigger the fees-and-expenses provisions.
The longer your OOS is pending before trial, the more prejudgment interest accrues, which in turn makes it easier for the eventual final judgment amount to exceed the OOS amount by 25%. The interest rate is calculated by adding 3% to the Federal Reserve’s prime rate. But what if the trial court later decides, based on factor 4 above, that your OOS was sent too early?
It is often advantageous to send many OOSs during the pendency of your case instead of just one. The time value of money and legal strategy often dictate that the best practice is to begin very early in the litigation (but at least 30 days after service) with an aggressively low amount (the absolute minimum your client is willing to accept in order to get the case closed immediately).
Once the initial OOS expires, you could send additional OOSs with gradually escalating amounts every month or two (at least 31 days after the last one so they don’t interfere with each other). This may be unusual, but the stack ladder is allowed. Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26 (2010).
The OOS stack ladder has several benefits. First, the amount of discovery that was completed when the OOS was sent is one of the factors that the trial court is supposed to consider when deciding if the OOS was sent in good faith. It is very difficult to know upfront how the trial court will eventually feel about the relative degree of discovery completed at the time your OOS was sent.
An insurance-defense lawyer who finds themself on the wrong side of a triggered OOS will, of course, argue that there was not enough information at the time because only half of the discovery period had expired, or the independent medical exam had not yet been conducted, etc.
For the party on the wrong side of the triggered OOS, they will always argue that there was not enough information available to make a sound decision on valuation until the trial was concluded. A plaintiff’s counsel who simply sends one OOS in the middle of the discovery period and sends no more is exposing their client to this argument.
By sending an escalating stack-ladder of OOSs over time, you make it more likely that at least one of the OOSs will later be found by the trial court to have been sent in good faith considering both the subjective and objective factors including the timing of delivery.
For example, 31 days after filing your lawsuit on January 1, you send an OOS at $1M that is rejected. Every two months you send another OOS that is $100k higher than the last one.
Depending on the relative degree of information known about the claim when the suit was filed, there may in fact be a meritorious argument that there was insufficient discovery completed to allow the insurance company to properly evaluate the claim when the first OOS was sent. But at some unknown point during the litigation, enough information will have become available to properly evaluate the claim.
The challenge is that the trial court gets to make this subjective determination in hindsight after the litigation is completed. Because the hindsight-based evaluation is subjective, you can’t know at what point during the discovery period you will have reached the threshold of completeness that the trial court will eventually determine allowed for an insurance carrier to properly evaluate the valuation. The OOS stack-ladder plan protects your client by providing several points in time where a judge can decide that the insurance company had enough information to properly evaluate the claim such that the OOS was in good faith.
But that’s not all. Because you combined each OOS with a prejudgment-interest demand, the escalating ladder allows your client to get the maximum amount of prejudgment interest available based on your trial result. O.C.G.A. § 51-12-14 only allows for interest on the amount demanded, not your entire trial result. By escalating the demands over time, your trial result will allow for prejudgment interest on the amount of each demand from the time it was made.
If your trial result is so large that it exceeds your initial pre-litigation demand and its prejudgment-interest demand, then you are entitled to the interest all the way back to the initial pre-litigation demand. But that would be unusual. More often, your trial result will be lower than the initial pre-litigation demand, but higher than your first OOS amount.
Using the example above of a bi-monthly OOS stack-ladder that increases $100k each time, you will have submitted the following OOSs: Feb 1, $1.0M; April 1, $1.1M; June 1, $1.2M; Aug. 1, $1.3M; Oct. 1, $1.4M.; Dec. 1, $1.5M. Then assume the trial verdict is $1.49M.
This result is easily enough to trigger the original Feb 1 OOS and give you fees and expenses all the way back to March 3 (30 days after the Feb. 1 OOS). But what if the trial court later says the original OOS was sent too early because the depositions had not yet been completed? It was therefore not sent in good faith and was ineffectual. Because you used the stack ladder, you have two more chances to trigger the fees and expenses. If the court finds that the April 1 OOS was sent in good faith you can use that one and you only lose a couple of months of fees and expenses.
If that too was sent too early, you can try using the June 1 OOS of 1.2M. By the time you add the prejudgment interest (maybe $70k to $150k depending on how long it took to get to trial) and filing and service costs (maybe $500) to the verdict it will be sufficient to trigger the June 1 OOS at $1.2M (because it will slightly exceed $1.5M which is 125% of the June 1 OOS at 1.2M). Assuming the trial court agrees that this OOS was sent in good faith, you recover fees and expenses back to the beginning of July.
Obviously, you can’t double recover the interest, but you are entitled to the interest on the amount exceeded by your trial result from 30 days after the prejudgment-interest demand was served through the eventual judgment. And the interest on the prejudgment-interest demands runs back based on the time and amount of each demand that you exceeded. In other words, you recover the interest on the full initial $1M all the way back to March 3 (30 days after the 1st prejudgment-interest demand) through judgment. The interest on the next $100k (from 1.0M to 1.1M) back to May 1 through judgment. The next $100k (from 1.1M to 1.2M) from July 1 through judgment and so forth.
Of course, if the facts in your case are getting worse instead of better as time goes on, you can send a subsequent OOS with a demand amount that goes down instead of up, or one that stays at the same demand amount. At least then, you are buying some protection in case the court later rules that your first OOS was sent without good faith because the defendant did not yet have enough information about the case at the time you sent the first OOS.
It is not uncommon for experienced insurance-defense counsel to send the plaintiff an OOS 31 days before the beginning of a published trial calendar. It takes 5-7 days for you to find the mail, explain the OOS to your client, and allow the client to discuss the decision with their family.
But you have studied the statute and know that, because your response is a counteroffer, you can send the counter OOS as late as 20 days before trial. Your client decides to send an OOS back to the defendant at the last demand amount. You send your counter OOS back exactly 21 days before the trial. Your counter OOS was for $100k and your verdict at trial is $200k. But you assumed that the beginning of the trial obliterated all previous offers and demands. It did not. After the verdict, insurance-defense counsel jumps up with a pre-prepared letter accepting your OOS from 29 days ago. Now you have a big problem because you accidentally settled a case for $100k when you got a jury verdict of $200k. See Harris v. Mahone, 340 Ga. App. 415 (2017).
Subsection (e) allows for the prevailing party at trial to ask the jury to consider if any of the claims or defenses were frivolous and, if so, to seek reasonable fees and expenses. The amount of the fees and expenses is determined in a bifurcated proceeding that begins immediately after the verdict is rendered.
This provision is available separately from the OOS portion of the statute. Lloyd Bell popularized this technique after using it in several high-profile trials in the manner described in this article. If the plaintiff prevails at trial, the court can’t determine as a matter of law that no frivolous defenses were present and refuse to allow the bifurcated proceeding to occur because this is a question for the jury as the finder of fact. Showan v. Pressdee, 922. F.3d 1211 (11th Cir. 2019).
An OOS is substantive Georgia law and is not in direct conflict with federal Rule 68. You may therefore choose to use an OOS in federal courts exercising diversity jurisdiction. EarthCam, Inc. v. Oxblue Corp., 658 Fed. Appx. 526 (11th Cir. 2016).
Because Georgia’s OOS statute was based on Florida’s similar statute, Florida law may be instructive on issues on which there is not yet a Georgia case on point. Richardson v. Locklyn, 339 Ga. App. 457 (2016).
Make sure you know how to prove your fees and expenses in the appropriate way allowed by law because simply submitting the contingent-fee contract is authorized but insufficient. Ga. Dep’t of Corr. v. Couch, 295 Ga. 469 (2014). The party seeking fees must submit evidence of hours, rates, or some other indication of the value of the legal services provided. Cajun Contractors, Inc. v. Peachtree Property Sub., 360 Ga. App. 390 (2021).
The Honorable Wayne M. Purdom of Dekalb State Court put together this helpful bench brief on O.C.G.A. § 9-11-68.
If anyone finds a good article from the defense perspective that is recent and publicly available please let me know and I will link to it.
Thank you for reading. Comments, criticisms, and additional insights are most definitely welcomed. If you are a new plaintiff’s attorney and have questions or need to borrow an OOS form template you can email me at firstname.lastname@example.org or give me a call at (404) 796-7664.
Personal Injury Attorney at Harrison Injury Law, LLC
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