When are Attorney’s Fees Untimely in an Auto Accident Case?
A plaintiff in a personal-injury case appealed from the trial court’s order denying her motion for attorney fees and expenses under Georgia’s “offer of settlement statute.”
Background
After a motor vehicle collision in 2019, the injured victim filed suit against the other driver. The jury awarded the plaintiff $340,000, and the trial court entered a judgment to that effect.
The plaintiff then moved for attorney fees and expenses of litigation pursuant to O.C.G.A. § 9-11-68. In support of her motion, she showed that before the case went to trial, she offered to settle the lawsuit for $100,000. The defendant didn’t accept the offer, and the final judgment awarded to the plaintiff was 340% of the offer the defendant rejected. The plaintiff sought $120,000 in attorney fees and $66,901.82 in litigation expenses. In response to her motion, the defendant argued that the plaintiff’s settlement demand wasn’t a valid offer under the statute because, among other alleged defects, it wasn’t made more than 30 days after the complaint and summons were served.
The trial court ruled in the defendant’s favor and denied the plaintiff’s motion that the offer was untimely under O.C.G.A. § 9-11-68(a). On appeal, the plaintiff argued that the trial court erred in concluding that her offer was premature, and therefore invalid, under O.C.G.A. § 9-11-68.
The offer of settlement statute, OCGA § 9-11-68(b)(2):
Judge Jeffrey A. Watkins of the Georgia Court of Appeals wrote for the panel that when interpreting a statute, “we must presume that the General Assembly meant what it said and said what it meant.” Thus, absent clear evidence that the legislature intended a contrary meaning (as reflected in the statutory text), “we assign words in a statute their ordinary, logical, and common meanings.”
The offer of settlement statute, OCGA § 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 the rejection of the offer of settlement through the entry of judgment.
The statute’s purpose is to encourage tort litigants “to make and accept good faith settlement proposals” to avoid unnecessary litigation and advance the state’s “strong public policy of encouraging negotiations and settlements,” the judge wrote. Nevertheless, the statute must be “strictly construed against the award of attorney fees and costs” and “not extended beyond” its “plain and explicit terms.”
Judge Watkins explained that the statute identifies a window of time in which an offer may be made under the Code section. Specifically, the statute provides:
At any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party , but shall not file with the court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly.
The statute further provides that “any offer under this Code section must . . . be served by certified mail or statutory overnight delivery in the form required by Code Section 9-11-5.” Notably, pursuant to O.C.G.A. § 9-11-5(b), “service by mail is complete upon mailing.” The plaintiff admitted that the statute doesn’t provide a different definition for the completion of service by certified mail or statutory overnight delivery.
In this case, the defendant was served with the summons and complaint on May 5, 2020. The plaintiff mailed her offer of settlement on June 4, 2020. The trial court concluded that the offer of settlement was premature under O.C.G.A. § 9-11-68 because it was mailed exactly 30 days after service of the summons and complaint — not more than 30 days after such service.
The plaintiff contended that the trial court’s interpretation of the statute was “absurd” in light of O.C.G.A. § 9-11-68(c). That section provides that “any offer made under this Code section shall remain open for 30 days . . . .”
Arguing that the legislature clearly intended for an opposing party to have 30 days from receiving an offer of settlement to accept or reject it, the plaintiff insisted that the controlling date must be the date the offer is delivered.
But Judge Watkins said that the question in this case wasn’t whether the offer of settlement remained open for the amount of time required by the statute. Instead, the question was whether the offer of settlement was made in the timeframe required by the statute. That question is addressed in O.C.G.A. § 9-11-68(a), which provides that a party “may serve” an offer of settlement in the timeframe described therein in the form required by O.C.G.A. § 9-11-5, which defines service as complete upon mailing. As such, the statute clearly defines the window of time for making an offer in terms of when the offer can be served — not in terms of when the offer can be delivered.
As outlined above, Judge Watkins explained that attorney-fee statutes like § 9-11-68 “must be strictly construed against the award of such damages” and not extended beyond their “plain and explicit terms.”
Given the plain language of the statute, it’s the date an offer is served — not the date the offer is delivered — that determines whether the offer is timely under § 9-11-68.
Further, as the plaintiff acknowledged, under O.C.G.A. § 9-11-5, service by mail is complete upon mailing.
As a result, the Court of Appeals agreed with the trial court that the offer of settlement in this case, which was mailed exactly 30 days after service of the summons and complaint, was premature under § 9-11-68 (a). Because the offer of settlement didn’t comply with the statutory requirements, the plaintiff wasn’t entitled to an award under this provision. The judgment was affirmed. Vinson v. Brown, 2025 Ga. App. LEXIS 521, 2025 LX 451924 (Ga. App. October 31, 2025).
Timing, as in life, can be everything
Knowing the law and hiring a knowledgeable Georgia car accident lawyer makes a significant difference in determining if a settlement is equitable and addresses all your needs. Contact an experienced Atlanta personal injury lawyer Atlanta residents trust every day. Please know that every consultation with Tobin Injury Law is 100% confidential and 100% free. We’ve worked with accidents victims all across the state to success. Contact an Atlanta personal injury lawyer at Tobin Injury Law 24 hours a day, seven days a week by calling 404-JUSTICE (404-587-8423) or reach out through our online contact form.