What are the Requirements for Offers Prior to the Filing of an Answer?
In a declaratory judgment action, the plaintiffs appealed the trial court’s grant of an insurance company’s motion for judgment on the pleadings and the denial of their own similar motion. They argued that the trial court erred in concluding that O.C.G.A § 9-11-67.1—which applies to offers to settle tort claims for personal injury, bodily injury, or death arising from the use of a motor vehicle “prior to the filing of an answer”—applies to an offer that they made to settle their claims against Progressive’s insured.
Background
In December 2021, an auto accident victim was killed after a vehicle driven by another motorist crashed into his vehicle. At the time of the accident, the other motorist was an insured under a policy with Progressive. Travelers Property and Casualty Company provided uninsured/underinsured motorist coverage to the decedent.
In January 2023, the plaintiffs filed a lawsuit against the other motorist. On February 14, 2023, Travelers filed an answer. On February 16, 2023, the plaintiffs sent Progressive a letter offering to settle their claims against the other motorist for the insurance policy limits of $25,000. The plaintiffs’ February 16th letter contained a 14-day deadline for responding to the offer. The other motorist filed her answer on February 28, 2023. A week later, Progressive responded to the February 16th letter, stating its position that O.C.G.A § 9-11-67.1 governed the plaintiffs’ offer because it was “sent prior to the filing of an answer,” and that multiple terms of the offer “appear to be non-compliant with the current requirements of O.C.G.A § 9-11-67.1.”
In November 2023, Progressive filed a declaratory judgment action against the plaintiffs asking the trial court to declare that:
- O.C.G.A § 9-11-67.1 applies to the plaintiffs’ February 16 letter because it was sent prior to the other motorist filing an answer; and
- The February 16 letter did not constitute a valid offer to settle because it did not comply with O.C.G.A § 9-11-67.1.
The plaintiffs answered, seeking a declaration that O.C.G.A § 9-11-67.1 didn’t apply because “an answer” had been filed in the underlying case before the plaintiffs sent the February 16th letter.
The plaintiffs moved for judgment on the pleadings. Progressive opposed the plaintiffs’ motion and cross-moved for judgment on the pleadings. After a hearing, the trial court granted Progressive’s motion and denied the plaintiffs’ motion. The trial court held that the February 16th letter was required to comply with O.C.G.A § 9-11-67.1 because “the most reasonable interpretation of ‘an answer’ in O.C.G.A § 9-11-67.1, is that it means the answer of the actual defendant in the tort case against whom the settlement demand is directed.”
As Progressive had requested, the trial court declared that the February 16th letter was required to comply with O.C.G.A § 9-11-67.1 and that it didn’t comply with O.C.G.A § 9-11-67.1.
The plaintiffs appealed.
The Court of Appeals Reverses
Presiding Judge Brian M. Rickman wrote that the plaintiffs contended that the trial court erred by interpreting the phrase “an answer” to exclude the answer filed by Travelers and by declaring that the February 16th letter was required to comply with O.C.G.A § 9-11-67.1. Quoting a 2013 decision of the Georgia Supreme Court, the judge wrote:
When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. … [I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.
With these principles in mind, the judge turned to the statutory text at issue in this appeal. O.C.G.A § 9-11-67.1 provides, in pertinent part:
(a) Prior to the filing of an answer, any offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants shall be in writing and:
(1) Shall contain the following material terms:
- The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of the offer;
- Amount of monetary payment;
- The party or parties the claimant or claimants will release if such offer is accepted;
- For any type of release, whether the release is full or limited and an itemization of what the claimant or claimants will provide to each releasee; and
- The claims to be released.
Judge Rickman explained that by its plain language, the 2021 version of O.C.G.A § 9-11-67.1 only applies to offers prior to the filing of an answer. The plain and ordinary meaning of “an answer” is “any answer.”
Because the statutory text at issue is clear and unambiguous, the Court will attribute its plain meaning to O.C.G.A § 9-11-67.1. Had the General Assembly intended for the statute to apply to offers made prior to an answer being filed by the defendant in the tort case against whom the settlement demand is directed, Judge Rickman said, it certainly could have so stated. Quoting a 2017 Supreme Court case, the judge noted:
This Court cannot add language to a statute by judicial decree. … And we may not add meaning to a statute to further what we perceive to have been the General Assembly’s policy goals in enacting the legislation.
Because the February 16th letter was sent after Travelers filed an answer, the trial court erred in declaring that the letter was required to comply with O.C.G.A § 9-11-67.1. Cohen v. Progressive Mt. Ins. Co., 2025 Ga. App. LEXIS 210, 2025 WL 1501092 (Ga. App. May 27, 2025)
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