Two motorists were driving on I-20 westbound in Georgia when one rear-ended the other. After the victim filed suit, the other driver admitted he was at fault for the auto accident but denied proximate cause and damages.
The jury returned a verdict in favor of the plaintiff for $70,000, and the trial court entered a judgment for that amount plus costs of $245 and an additional $23,430 for attorney fees and litigation expenses under O.C.G.A. § 9-11-68. That statute allows the winner to recover all fees and costs if the losing party does not pay the amount demanded and the winner recovers 125% of the offer. The defendant appealed from the trial court’s judgment, arguing, among other things, that the trial court erred by entering an award under O.C.G.A. § 9-11-68 because the plaintiff failed to comply with the statute’s service requirements.
Was Service of the Offer of Settlement Offer via Email Sufficient?
The defendant argued that the trial court erred in granting an award under O.C.G.A. § 9-11-68 because, when the plaintiff sent him the offer to settle the case for $45,000, he served it by e-mail rather than by certified mail or overnight delivery as required by the statute.
Presiding Judge Doyle of the Georgia Court of Appeals wrote that O.C.G.A. § 9-11-68 applies to written offers of settlement in tort cases. Pursuant to O.C.G.A. § 9-11-68(a), the requirements of an offer made under this provision are as follows:
Any offer under this Code section must:
- Be in writing and state that it is being made pursuant to this Code section;
- Identify the party or parties making the proposal and the party or parties to whom the proposal is being made;
- Identify generally the claim or claims the proposal is attempting to resolve;
- State with particularity any relevant conditions;
- State the total amount of the proposal;
- State with particularity the amount proposed to settle a claim for punitive damages, if any;
- 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
- 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.
The judge explained that O.C.G.A. § 9-11-5(b) sets forth the requirements for making service in person, by mail, and by e-mail. Subsection (f), titled “electronic service of pleadings,” provides that “a person to be served may consent to being served with pleadings electronically.”
And pursuant to subsection (f)(4), when an attorney files a pleading in a case via an electronic filing service provider, the attorney is deemed to have consented to be served electronically with future pleadings for that case.
In this action, the plaintiff relied on these provisions to support his argument that the award was proper even though he served his offer only by e-mail. But in a 2013 decision, the Court of Appeals concluded that a message from one party to another didn’t qualify as an offer under § 9-11-68 because it was sent by fax and e-mail, not by certified mail or statutory overnight delivery as O.C.G.A. § 9-11-68 (a) (8) requires.
That case was decided before the Georgia legislature amended § 9-11-5 to provide that when an attorney files a pleading in a case electronically, he’ll be deemed to have consented to be served electronically. Even so, the Court of Appeals didn’t believe this amendment to O.C.G.A. § 9-11-5 changed the meaning of O.C.G.A. § 9-11-68(a)(8). Judge Doyle explained that, although § 9-11-68(a)(8) refers to § 9-11-5, it doesn’t say that service may be accomplished by any method listed in § 9-11-5, including by e-mail. Instead, § 9-11-68(a)(8) provides that service of an offer made under that provision must be accomplished “by certified mail or statutory overnight delivery in the form required by Code Section 9-11-5.”
As a result, § 9-11-68(a)(8) is different from other statutory provisions which refer to § 9-11-5’s identification of various methods of service, the judge opined. For example, O.C.G.A. § 9-11-24(c) provides that “a person desiring to intervene shall serve a motion to intervene upon the parties as provided in Code Section 9-11-5,” and O.C.G.A. § 9-11-25(a)(1) says that a motion to substitute following a party’s death “shall be served on the parties as provided in Code Section 9-11-5.”
Because O.C.G.A. § 9-11-68(a)(8) plainly requires that an offer of settlement made under § 9-11-68 “must … be served by certified mail or statutory overnight delivery,” and refers to OCGA § 9-11-5 only as to the form of that service. As a result, Judge Doyle and the Court of Appeals held that O.C.G.A. § 9-11-5’s provisions regarding electronic service are inapplicable to offers of settlement made pursuant to O.C.G.A. § 9-11-68.
Here, because the plaintiff served his offer only by e-mail rather than by certified mail or statutory overnight delivery, he wasn’t eligible for an award under O.C.G.A. § 9-11-68. Consequently, the Court reversed that portion of the trial court’s judgment. Arnold v. Liggins, 2023 Ga. App. LEXIS 349 *; 2023 WL 4246123 (Ga. App. June 29, 2023).
Questions on Auto Insurance Coverage and Settlement Offers After an Accident?
Insurance coverage for other drivers can be dicey. And settlement offers may not be all that they seem. Insurance company will do all they can to deny a claim, and a settlement offer may restrict or exclude benefits and compensation that you need after an auto or motorcycle accident.
If you have any questions about an accident in which you were involved, contact an experienced Atlanta personal injury lawyer Atlanta residents trust. Our lawyers and staff at Tobin Injury Law are ready to help answer your questions and guide you through the litigation process.