On October 28, 2020, the Court of Appeals of Georgia issued a decision further clarifying the application of O.C.G.A. § 9-11-68, the Georgia statute permitting civil litigants to make pre-suit offers of settlement. The Court’s decision provides further guidance to trial courts and parties as to when, and under what circumstances, attorney’s fees may be recovered post-trial after an offer of settlement under O.C.G.A. § 9-11-68 has been rejected.
Under O.C.G.A. § 9-11-68, if a defendant rejects an offer of settlement and the plaintiff later recovers a verdict in excess of 125 percent of that offer, then that plaintiff is entitled to recover some portion of his attorney’s fees from the defendant. Specifically, the statute provides that a plaintiff in that scenario “shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred … from the date of the rejection of the offer of settlement through the entry of judgment.” O.C.G.A. § 9-11-68(b)(2).
The newly-decided case, Junior v. Graham, 2020 WL 6305008 (Ga. Ct. App. 2020), concerned a personal injury action where a plaintiff made – and the defendant rejected – a valid offer under O.C.G.A. § 9-11-68. At trial, the jury returned a verdict against the defendant well in excess of 125 percent of the plaintiff’s offer of settlement; significantly, however, the jury’s verdict included an award for the full amount of the plaintiff’s attorney’s fees under a different Georgia statute, O.C.G.A. § 13-6-11.
In Junior, the Court of Appeals held that, notwithstanding the language of O.C.G.A. § 9-11-68, the plaintiff was not entitled to recover any attorney’s fees under that statute. This is because, in light of the jury awarding him the full amount of his attorney’s fees under a different statute, the plaintiff could no longer be said to have “incurred” any attorney’s fees by the time he made his post-trial request for fees to the Court.
The decision in Junior should not be read too broadly. The Court’s decision does not foreclose the possibility of a party recovering fees under both O.C.G.A. § 13-6-11 and O.C.G.A. § 9-11-68 – rather, what it forecloses is a “double recovery” of the same attorney’s fees. In so doing, the decision in Junior represents a significant development in Georgia’s ever-evolving framework of fee awards in civil lawsuits. Practitioners should continue to keep a close eye on further applications of this framework by Georgia’s appellate courts, especially in scenarios where, as in Junior, a party is arguably entitled to fees under two or more statutes.