Can an Accident Victim Get Attorney’s Fees from a Party Not Named in the Lawsuit?
In this auto accident case, the plaintiffs submitted offers of settlement to Allstate Insurance, their uninsured/underinsured motorist carrier, pursuant to O.C.G.A. § 9-11-68. In January 2023, after the jury verdict exceeded the threshold for fees to be awarded pursuant to the statute, the plaintiffs filed a motion seeking attorney fees and expenses of litigation under O.C.G.A. § 9-11-68(d).
Background
On April 21, 2017, the plaintiff and his now-deceased wife were hit head-on and suffered serious injuries when the defendant driver rammed his car into the back of another vehicle, propelling it into the plaintiff’s lane. Believing that the defendant driver was uninsured, the plaintiffs served a copy of the complaint and summons on their uninsured/underinsured (“UM”) motorist insurance carrier, Allstate. Allstate answered the complaint in its own name and filed a cross-claim against the defendant driver. the defendant driver also filed an answer.
In November 2020, the plaintiffs served Allstate with an offer of settlement pursuant to O.C.G.A. § 9-11-68. The offers sought to resolve “all claims [each plaintiffs had] against Allstate Fire and Casualty Insurance Company and Defendant arising out of a motor vehicle collision,” for the policy limits of $250,000 per plaintiff. Allstate didn’t respond to either offer.
The case went to trial, but before that, Allstate made the election to proceed at trial solely in the name of the defendant driver. The plaintiffs didn’t object. At trial, the defendant driver was represented by counsel provided by Allstate. The jury issued a verdict in favor of the plaintiffs, awarding damages in the amount of $1.5 M.
The plaintiffs filed a motion for attorney fees and expenses. They noted:
- They each served offers of settlement complying with O.C.G.A. § 9-11-68;
- Allstate failed to respond and thereby rejected its offers; and
- Both plaintiffs had recovered a final judgment in an amount greater than 125% of each plaintiff’s offer, thereby entitling them to the recovery of attorney fees and expenses under O.C.G.A. § 9-11-68(b)(2).
Allstate opposed the motion, and the trial court denied the motion, concluding that O.C.G.A. § 9-11-68 didn’t apply to the plaintiff’ claims. The trial court concluded that the statute was inapplicable because Allstate wasn’t a “party” against whom fees could be awarded under the statute. The court held that the uninsured motorist statute, O.C.G.A. § 33-7-11, provides the exclusive remedy for a UM carrier’s failure to agree to a demand to pay a covered loss. In light of this, the trial court declined to consider the reasonableness of the fee amount.
On appeal, the plaintiffs argued that the trial court erred by concluding that Allstate wasn’t a “party” to which § 9-11-68 could be applied. The trial court’s order determined that Allstate undertook the role of a party when it answered in its own name, but that status changed when it elected to proceed in the plaintiffs’ name. At which point it ceased to be a party.
The Decision of the Court of Appeals
Judge J. Wade Padgett of the Georgia Court of Appeals wrote that in interpreting O.C.G.A. § 9-11-68 and O.C.G.A. § 33-7-11, the Court must afford the statutory text its plain and ordinary meaning. When the statutory text is clear and unambiguous, the plain meaning of the text governs and the search for statutory meaning is at an end. But when the plain meaning is not as clear, the Court must look to the text of the provision and its context within the larger legal framework to discern the intent of the legislature.
As a statutory authorization for attorney fees, O.C.G.A. § 9-11-68 must be strictly construed. Judge Padgett explained subsection (a) says that “either party” to a suit may serve upon the “other party” a written offer to settle a tort claim for a specific amount. Offers governed by this statute must contain certain elements, be made at least 30 days after the service of the summons and complaint, but not later than 30 days before trial, and be held open for 30 days.
O.C.G.A. § 9-11-68(b) provides that when a party makes an offer that complies with these statutory requirements and that offer is rejected (either expressly or by the offeree’s failure to respond within 30 days), the offeror becomes eligible for an award of attorney fees and litigation expenses if that party ultimately prevails in the litigation. Relevant here, O.C.G.A. § 9-11-68(b)(2) provides:
If a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the plaintiff or on the plaintiff’s behalf from the date of rejection of the offer of settlement through the entry of judgment.
Once these statutory requirements have been met, an award of fees and expenses is mandatory. As such, the statute doesn’t condition a fee award on any showing of bad faith or misconduct by the party rejecting the offer, the judge said. Instead, it’s the mere rejection of a reasonable offer—as shown by comparison with the eventual judgment—that triggers liability for the fee award.
In addition to requiring UM coverage as part of standard auto policies, the statute prescribes rules under which insureds are to assert claims arising from accidents involving an uninsured motor vehicle and provides for subrogation when UM carriers have paid such claims. When an insured files suit against the owner or operator of an uninsured motor vehicle, the statute requires the insured to serve a copy of the action and all pleadings upon the insurance company issuing the uninsured motorist policy as though the insurance company were actually named as a party defendant. The UM carrier then has the right to conduct discovery and to “file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself .”
The statute also provides that a UM carrier may be liable for damages arising from a bad faith failure to settle. It notes that if the insurer refuses to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured, and the refusal was made in “bad faith,” then the “insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery or $25,000 whichever is greater and all reasonable attorney’s fees for the prosecution of the case under this Code section.”
Allstate argued below — and the trial court agreed—that Allstate wasn’t a “party” to which § 9-11-68 could be applied. The trial court held that Allstate undertook the role of a party when it answered in its own name, but that status changed when Allstate elected to proceed in the defendant’s name, at which point “it ceased to be a party.” The plaintiffs argued that Allstate was a party at all times relevant to the O.C.G.A. § 9-11-68 offer because it was a party at the time the offer of settlement was both made and rejected.
Construing O.C.G.A. § 9-11-68 strictly, it concluded that the statute contemplates that an award of attorney fees and expenses of litigation would apply only to named parties that participated in the decision to reject an offer of settlement and then proceeded to trial. O.C.G.A. § 9-11-68(a) provides that “either party” may serve a written offer to settle upon the opposing party. As pertinent to this appeal, O.C.G.A. § 9-11-68(b)(2) provides that if “a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover attorney’s fees and expenses incurred . . . from the date of the rejection of the offer of settlement through the entry of judgment .”
O.C.G.A. § 9-11-68(d)(1) refers back to subsection (b) stating that the trial court “shall order the payment of attorney’s fees and expenses” upon proof that the provisions of subsection (b)(1) or (b)(2) have been met. Finally, subsection (e) refers to the prevailing and opposing parties “at the time the verdict or judgment is rendered.”
Judge Padgett reasoned that O.C.G.A. § 9-11-68 refers exclusively to named parties and uses the words “party,” “parties,” “plaintiff” or “defendant” no fewer than 25 times. The most natural and reasonable reading of subsection (b)(2) is that the “final judgment” necessary to trigger a fee award must be against the same defendant who rejected the settlement offer. Further, the statute doesn’t refer to non-parties, former parties, or a purported “real party in interest” that is not the named plaintiff or defendant. The judge said–which we disagre with–that there’s no reason to think that “party” as that term is used in O.C.G.A. § 9-11-68 means anything other than a named party to the litigation, the Court concluded.
The judge when on to explain that if a UM carrier elects to proceed only in the name of the alleged tortfeasor, it can obtain an adjudication of tort liability without the potentially prejudicial injection into the case of the presence of insurance coverage, and the insured may not obtain a judgment against the insurer in the tort action. Conversely, if a UM carrier answers in its own name, it has the right to contest both the liability of the alleged tortfeaser and any liability under the policy. Further, as an entity with the status of a named party, the UM insurer is bound by the Civil Practice Act.
However, O.C.G.A. § 9-11-33 doesn’t require UM carriers to take on the status of a party in every case in which they are served. In fact, the UM carrier may also choose not to file any pleadings. If the UM carrier elects not to join the tort action as a party, it may then litigate its contract disputes separately in any action allowed by law. Further, Georgia law is clear that once a UM carrier has joined the litigation in its own name, it retains the option to later elect to abandon that status. The Court of Appeals has previously held that nothing in O.C.G.A. § 33-7-11 prevents the insurer from changing its position during the course of litigation.
In this case, Allstate initially proceeded in the litigation in its own name by filing an answer and cross-claim against defendant the defendant driver and by participating in discovery. Allstate also participated in the litigation as a named party at the time that the plaintiffs made their offer of settlement. However, Allstate elected to abandon this status prior to trial and to proceed at trial in the defendant’s name only. It had the right to do so. Accordingly, the trial court correctly held that an award of attorney fees and expenses pursuant to O.C.G.A. § 9-11-68 wasn’t warranted. The judgment was affirmed. Blazys v. McKnight, No. A25A1005, 2025 Ga. App. LEXIS 418, at *1 (Ga. App. Sep. 26, 2025).
For what it is worth, we believe the judges got it wrong on this decision. The fact that Allstate elected to particpate should not excuse them from having to live with their decisions.
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