Georgia Offer of Settlement: O.C.G.A. Section 9-11-68 Explained

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A formal document arrives a year before trial: the defense offers $150,000, the paper names OCGA Section 9-11-68 by statute, and a thirty-day fuse begins to burn. Unlike the back-and-forth of ordinary negotiation, this offer carries a financial threat that survives rejection. If the case later produces a verdict far enough below that number, the rejecting party can be ordered to pay the offeror’s attorney fees and costs accrued from the day the offer was spurned.

That risk-shifting engine is what separates the statutory offer of settlement from a policy-limits demand letter (#16), which pressures an insurer through bad-faith exposure rather than fee-shifting. Section 9-11-68 is a litigation device that lives inside the lawsuit and is scored against the final judgment.

How the Mechanism Works

Subsection (b) of OCGA 9-11-68 lets either side serve a written offer to settle a tort claim for a stated sum. The offer must be served no earlier than 30 days after service of the answer and no later than 30 days before trial, must be in writing, must identify itself as made under the statute, must state the relief offered and any non-monetary terms, and must be served by certified mail or statutory overnight delivery. The statute provides that an offer neither withdrawn nor accepted within 30 days is deemed rejected, and an offeror is not entitled to the fee remedy to the extent the offer was not held open for at least 30 days, unless it was rejected during that period.

If the offer is accepted within the window, an enforceable settlement results. If it is rejected, expressly or by lapse of the 30 days, the statute measures the rejection against the outcome at trial. Successive offers are permitted, and each new offer supersedes the prior one, so only the most recent rejected offer is compared to the verdict.

The 75% and 125% Triggers

The fee remedy does not fire in close cases. The verdict must miss the rejected offer by more than a quarter, measured from each side’s direction.

Who made the offer Trigger for fee-shifting Worked example on a $100,000 offer
Defendant offered, plaintiff rejected Final judgment of no liability, or judgment less than 75% of the offer Verdict below $75,000 (or a defense verdict)
Plaintiff offered, defendant rejected Final judgment more than 125% of the offer Verdict above $125,000

The comparison is a pure ratio, independent of how large the offer was. Treat any rejected defense offer as 100. The fee remedy arms only if the plaintiff’s final judgment lands below 75 on that scale, that is, below three-quarters of the rejected offer, or the defense wins outright. For a rejected plaintiff’s offer, flip the direction: the remedy arms only if the judgment exceeds 125, more than one-and-a-quarter times the offer. A judgment that lands anywhere between 75 and 125 leaves a 25-point cushion on either side and triggers nothing. The dollar size of the offer never changes those break points; only the verdict-to-offer ratio does.

The recoverable amount is the reasonable attorney fees and litigation expenses, including expert and deposition costs, incurred from the date the offer was rejected through entry of judgment. An offer served a year out can therefore convert a full year of fees into exposure. Courts retain a measure of discretion: although the statute uses “shall,” Georgia courts examine whether an offer was made in good faith, and a token offer functioning only as a fee trap may be denied the remedy. Subsection (a) of the same statute separately authorizes damages for frivolous claims or defenses, a distinct ground from the offer-of-settlement mechanism in subsection (b).

Proving a Reasonable Fee Award After the Reform

The attorney-fee provision of SB 68, effective for claims arising on or after April 21, 2025, interacts directly with a Section 9-11-68 recovery. Two changes matter here.

First, SB 68 bars double recovery of attorney fees. A party cannot collect the same fees twice under overlapping statutes, so a 9-11-68 award and another fee statute cannot be stacked to recover the identical hours. Second, SB 68 provides that a contingency-fee agreement between a party and that party’s attorney is not admissible to prove the reasonableness of fees. Because the prevailing offeror under 9-11-68 must still establish that the claimed fees are reasonable, the proof now rests on documented hours and rates rather than on the percentage the client agreed to pay.

The practical effect is that the fee-shifting threat under 9-11-68 remains fully intact, but the courtroom proof of the resulting fee award follows the SB 68 evidentiary rule. SB 68’s other provisions, including non-economic anchoring limits and trial bifurcation, touch valuation and trial procedure rather than the offer calculus, and trial bifurcation can be elected where the amount in controversy is at least $150,000, which in turn shapes the verdict that a 9-11-68 offer is ultimately measured against.

Strategic Texture Without Advice

The statute rewards realistic valuation on both sides. A 25% cushion sits around every offer, so a claimant who values a case near a defense offer is exposed only if the verdict falls well below it, while a defendant who rejects a plaintiff’s offer risks fees only if the verdict climbs more than a quarter above it. Verdicts are unpredictable, which is precisely the pressure the statute means to apply. The mechanism is distinct from a pre-suit policy-limits demand (#16) and from a bad-faith failure-to-settle claim (#22), both of which operate against insurers rather than as a fee score against the judgment.

Frequently Asked Questions

Can an offer be served the week before trial?
No. Under Section 9-11-68 the offer must be served no later than 30 days before trial. An offer inside that window does not trigger fee-shifting, though ordinary settlement talks may continue.

Does a counteroffer destroy the original offer?
It depends on the terms. Some counteroffers expressly reject the prior offer, while others propose alternatives without closing it. The most recently rejected offer is the one compared to the verdict.

Are litigation costs recoverable in addition to attorney fees?
Yes. The statute reaches reasonable attorney fees and expenses of litigation, such as expert and deposition costs, incurred from rejection through entry of judgment.

How does SB 68 change a 9-11-68 fee award?
SB 68 bars recovering the same fees twice and makes the contingency-fee agreement inadmissible to prove reasonableness, so the award is proven through hours and rates rather than the fee percentage.

  • OCGA 9-11-68 (offers of settlement; fee-shifting; subsection (a) frivolous-litigation damages)
  • SB 68 (2025 Georgia tort reform): attorney-fee provision (no double recovery; contingency-fee agreement inadmissible to prove reasonableness); trial bifurcation threshold of $150,000
  • Georgia Civil Practice Act service provisions (certified mail / statutory overnight delivery)

Disclaimer

This article provides general information about OCGA Section 9-11-68 and the SB 68 fee provisions and is not legal advice. Application of the offer-of-settlement statute and its fee consequences depends on case-specific facts and timing. Anyone evaluating a statutory offer should consult a licensed Georgia attorney about the particular situation.

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