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

Published Read 8 min read

On this page

Rejecting a written offer of settlement served under OCGA 9-11-68 can make the rejecting side pay the other side’s reasonable attorney’s fees and expenses of litigation, counted from the date of rejection through the entry of judgment, when the final judgment lands on the wrong side of a line the statute fixes. For a defendant’s offer, the line is a final judgment of no liability or a judgment for the plaintiff below 75 percent of the offer. For a plaintiff’s offer, it is a final judgment above 125 percent of the offer. The offer carries that effect only if it meets the timing, content, and service rules of subsection (a).

When the Offer May Be Served and What It Must Contain

Either party may serve an offer “[a]t 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,” and the offer is served on the other party but not filed with the court (OCGA 9-11-68(a)). It is an offer “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.”

Subsection (a) then lists eight requirements. The offer must be in writing and state that it is made under the Code section; identify the parties making and receiving the proposal; identify generally the claims it attempts to resolve; state with particularity any relevant conditions; state the total amount; 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 they 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 OCGA 9-11-5.

In Steusloff v. Finelli, No. A25A1366 (Ga. Ct. App. Oct. 3, 2025), the Court of Appeals declined to add a requirement the list does not contain. A defendant argued that the plaintiffs’ offer was unenforceable because it did not say whether the plaintiffs were asking to have judgment entered. The Court of Appeals called the argument “disingenuous” and held: “The statute does not require that an offer state both disposition options (dismissal of the claim or entry of judgment).” The offer there provided that the plaintiffs would dismiss the action with prejudice, and the defendant did not challenge any of the eight elements.

The 75 Percent and 125 Percent Lines

If a defendant’s offer is rejected, the defendant “shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.” If a plaintiff’s offer is rejected and the plaintiff recovers “a final judgment in an amount greater than 125 percent of such offer of settlement,” the plaintiff is entitled to the same category of fees and expenses (OCGA 9-11-68(b)(1), (2)).

For example, imagine a rejected offer of $100,000.

Who made the offer What triggers fee-shifting On a $100,000 offer
The defendant A final judgment of no liability, or a final judgment obtained by the plaintiff that is less than 75 percent of the offer A defense judgment, or a judgment below $75,000
The plaintiff A final judgment obtained by the plaintiff that is greater than 125 percent of the offer A judgment above $125,000

Both comparisons are strict, so a judgment of exactly $75,000 or exactly $125,000 crosses neither line. Because fees run from the date of rejection through entry of judgment, an offer rejected earlier in the case reaches a longer stretch of fees.

The comparison is made against the judgment actually entered, which is why the form of that judgment matters. In Steusloff, one defendant argued that the jury had apportioned only 25 percent of the damages to that defendant, $1,417,540, which the defendant described as 1.2 percent more than the plaintiffs’ offer to settle the case for $1,400,000. The trial court had entered judgment jointly and severally. The Court of Appeals held that was error, noted that the fee award was presumably based on that judgment, vacated the award, and remanded for the trial court to reissue the judgment to conform to the apportioned verdict and “reconsider Plaintiffs’ motion for fees in light of that conformance.”

How Long an Offer Stays Open

An offer “shall remain open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance by the offeree, but an offeror shall not be entitled to attorney’s fees and costs under subsection (b) of this Code section to the extent an offer is not open for at least 30 days (unless it is rejected during that 30 day period)” (OCGA 9-11-68(c)). Acceptance or rejection must be in writing and served on the offeror, and an offer “that is neither withdrawn nor accepted within 30 days shall be deemed rejected.”

A counteroffer “shall be deemed a rejection but may serve as an offer under this Code section if it is specifically denominated as an offer under this Code section.” And “[t]he fact that an offer is made but not accepted does not preclude a subsequent offer” (OCGA 9-11-68(c)).

Who Awards the Fees, and When

“The court shall order the payment of attorney’s fees and expenses of litigation upon receipt of proof that the judgment is one to which the provisions of either paragraph (1) or paragraph (2) of subsection (b) of this Code section apply,” but if an appeal is taken, the court orders payment “only upon remittitur affirming such judgment” (OCGA 9-11-68(d)(1)). An award therefore rises or falls with the judgment. In Harris v. Martin, No. A24A0758 (Ga. Ct. App. Oct. 16, 2024), the Court of Appeals reversed a $66,000 dog-bite verdict and held the defendant’s challenge to the fee award moot, because fees under the plaintiff’s side of the statute are available “only if ‘the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement[.]'”

The court also has a limited discretion to refuse the award. “If a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination,” and in that case “the court may disallow an award of attorney’s fees and costs” (OCGA 9-11-68(d)(2)).

Damages for Frivolous Claims and Defenses

Subsection (e) adds a different remedy for the prevailing party. On that party’s motion “at the time that the verdict or judgment is rendered,” the court holds “a separate bifurcated hearing” at which the finder of fact decides whether the opposing party presented a frivolous claim or defense and awards damages, if any. Frivolous claims include a claim, defense, or other position that “lacks substantial justification or that is not made in good faith or that is made with malice or a wrongful purpose, as those terms are defined in Code Section 51-7-80”; one with “such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept” it; and one “interposed for delay or harassment.” Damages “may include reasonable and necessary attorney’s fees and expenses of litigation,” and a party “may elect to pursue either the procedure specified in this subsection or the procedure specified in Code Section 9-15-14, but not both” (OCGA 9-11-68(e)).

Frequently Asked Questions

Does the statute reach claims other than tort claims?
Subsection (a) describes the offer as one “to settle a tort claim for the money specified in the offer” (OCGA 9-11-68(a)).

Can a settlement offer be made before a lawsuit is filed?
Not under OCGA 9-11-68, which begins “more than 30 days after the service of a summons and complaint.” For a tort claim for personal injury, bodily injury, or death arising from a motor vehicle collision, a separate statute governs an offer prepared by or with the assistance of an attorney on behalf of a claimant, from the time the cause of action accrues until the named defendants have answered or been found in default; it must be in writing, list set material terms, and give at least 30 days from receipt to accept (OCGA 9-11-67.1(b)).

Can a contingency fee agreement prove what the fees should be?
No. When a party seeks attorney’s fees “pursuant to any statute authorizing an award of reasonable attorney’s fees, a contingent fee agreement between such party and such party’s attorney shall not be admissible as proof of the reasonableness of the fees” (OCGA 9-15-16(b)). The provision came in with SB 68 (2025), whose applicability section reaches causes of action pending on the Act’s effective date unless applying it to them would be unconstitutional (SB 68, Sections 4 and 9(b)).

Can the same fees be recovered under this statute and another one?
“[N]o party shall recover the same attorney’s fees, court costs, or expenses of litigation more than once pursuant to one or more statutes” unless a statute specifically authorizes duplicate recovery (OCGA 9-15-16(a)). For frivolous-claim damages, subsection (e) itself requires a choice between its procedure and OCGA 9-15-14, “but not both.”

Does the jury hear about a rejected offer?
“Evidence of an offer is not admissible except in proceedings to enforce a settlement or to determine reasonable attorney’s fees and costs under this Code section” (OCGA 9-11-68(c)).

  • OCGA 9-11-68(a), (b), (c), (d), (e)
  • OCGA 9-11-67.1(b); OCGA 9-11-5; OCGA 9-15-14; OCGA 51-7-80 (each as referenced in the text)
  • OCGA 9-15-16(a), (b); SB 68 (2025), Sections 4 and 9(b)
  • Steusloff v. Finelli, No. A25A1366 (Ga. Ct. App. Oct. 3, 2025)
  • Harris v. Martin, No. A24A0758 (Ga. Ct. App. Oct. 16, 2024)

Disclaimer

This article provides general information about OCGA 9-11-68 and the 2025 fee-proof provision. It is not legal advice and does not create an attorney-client relationship. How the offer-of-settlement statute applies depends on the facts of the case and on timing and service steps that can defeat the remedy. Anyone evaluating a statutory offer should consult a licensed Georgia attorney about the particular situation.

Related posts:

  1. Anesthesia Errors in Georgia: Dosing Mistakes and Intraoperative Awareness When a patient is harmed under anesthesia, the claim in Georgia is a medical malpractice claim, and two features set it apart. The defendant may be a physician anesthesiologist or......
  2. Independent Contractor Injuries in Georgia: Personal Injury Claims Without Workers’ Compensation A worker who is an independent contractor stands outside Georgia's workers' compensation system, and a worker who is an employee stands inside it, so the label decides what kind of......
  3. Dram Shop Liability in Georgia: Claims Against Bars and Restaurants for Alcohol-Related Injuries A person hurt by an intoxicated driver who had been served at a bar, restaurant, or store meets a hard default in Georgia: the law treats the drinker's own consumption,......
  4. Rideshare Accident Claims: Uber and Lyft Passenger Rights When a rideshare trip ends in a collision, the passenger's first practical question is which insurance answers, and Georgia answers part of that question by statute. OCGA 33-1-24 requires a......
  5. What to Expect at a Georgia Personal Injury Trial A Georgia personal injury trial moves through stages that the Code fixes at several points. The parties strike a jury from a panel, each side examines and cross-examines witnesses, either......
  6. Bicycle Accidents Involving Children in Georgia A child hurt on a bicycle is measured against a different statutory standard of care than an adult, a statute says a helmet violation is not evidence of negligence or......
  7. Birth Injury Malpractice in Georgia: Cerebral Palsy and Erb’s Palsy Claims A child who is born with an arm that will not move, or who is later diagnosed with cerebral palsy, leaves a family asking whether the delivery caused it and......
  8. How Georgia’s Collateral Source Rule Protects Your Recovery When health insurance paid part of an injured person's medical bills, what the jury may hear about those payments in Georgia depends on when the claim arose. For causes of......
  9. Horseback Riding Injury Claims in Georgia A rider hurt at a Georgia stable meets a statute before anything else: an equine activity sponsor, an equine professional, "or any other person" "shall not be liable for an......
  10. College Campus Injury Claims in Georgia Whether a college is public or private decides which statutes govern an injury on its campus. A claim against a state institution runs through the Georgia Tort Claims Act, with......
  11. Food Truck Accidents: Mobile Vendor Liability A person hurt by a food truck may have been struck on the road while the truck was moving or injured at the service window while it was parked and......
  12. Church and Religious Organization Liability in Georgia A church is a landowner, an employer, and an organization that relies on volunteers, and each role brings a different rule into an injury claim. A visitor hurt on the......
  13. Elder Abuse Civil Claims in Georgia: Holding Caregivers and Facilities Accountable Which Georgia statutes apply to harm done to an older person depends first on where the person lives. The Disabled Adults and Elder Persons Protection Act defines abuse, neglect, and......
  14. Fireworks Injury Claims in Georgia Who answers for a fireworks injury in Georgia depends on who controlled the risk: the person who lit the device, the operator of a permitted public display, or the company......
  15. Bus Accidents: Public Transit Injury Claims When a bus passenger is hurt in a sudden stop, a fall while boarding, or a crash, who operates the bus shapes the claim from the start. The standard of......
  16. Georgia Motorcycle Helmet Laws: Impact on Your Injury Claim Georgia requires every motorcycle operator and passenger to wear approved headgear. After a crash, the practical question is whether a missing or noncompliant helmet can be put in front of......

Leave a comment

Your email address will not be published. Required fields are marked *