06 LC
38 0176S
The
Senate Judiciary Committee offered the following substitute to HB
239:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 8 of Chapter 11 of Title 9 of the Official Code of Georgia
Annotated, relating to provisional and final remedies and special proceedings in
civil cases, so as to change provisions relating to offers to settle tort
claims; to change provisions relating to when a party declining an offer may be
liable for
attorneýs
fees and costs; to provide for related matters; to provide for an effective date
and for applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
8 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating
to provisional and final remedies and special proceedings in civil cases, is
amended by striking Code Section 9-11-68, relating to offers to settle tort
claims, and inserting in its place a new Code section to read as
follows:
"9-11-68.
(a)
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.
Any offer under this Code section must:
(1)
Be in writing and state that it is being made pursuant to this Code
section;
(2)
Identify the party or parties making the proposal and the party or parties to
whom the proposal is being made;
(3)
Identify generally the claim or claims the proposal is attempting to
resolve;
(4)
State with particularity any relevant conditions;
(5)
State the total amount of the proposal;
(6)
State with particularity the amount proposed to settle a claim for punitive
damages, if any;
(7)
State whether the proposal includes
attorneýs
fees or other expenses and whether
attorneýs
fees or other expenses are part of the legal claim; and
(8)
Include a certificate of service and be served by certified mail or statutory
overnight delivery in the form required by Code Section 9-11-5.
(b)
When the complaint sets forth a tort claim for money, if the offeree rejects or
does not accept the offer and the judgment finally obtained by the offeree was
not at least 25 percent more favorable than the last offer, the offeree shall
pay the
offeroŕs
reasonable
attorneýs
fees and costs incurred after the rejection of the last offer.
(b)(1)
If a defendant makes an offer of settlement which is rejected by the plaintiff,
the defendant shall be entitled to recover reasonable
attorneýs
fees and expenses of litigation incurred by the defendant or on the
defendant́s
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.
(2)
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
attorneýs
fees and expenses of litigation incurred by the plaintiff or on the
plaintiff́s
behalf from the date of the rejection of the offer of settlement through the
entry of judgment.
(c)
Any offer made under this Code section 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
attorneýs
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). 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. Acceptance or rejection of the offer by the offeree must be in
writing and served upon the offeror. An offer that is neither withdrawn nor
accepted within 30 days shall be deemed rejected. The fact that an offer is
made but not accepted does not preclude a subsequent offer. Evidence of an
offer is not admissible except in proceedings to enforce a settlement or to
determine reasonable
attorneýs
fees and costs under this Code section.
(d)
Upon motion made within 30 days of the entry of the judgment or after voluntary
or involuntary dismissal, the court shall determine the following:
(1)
If the offer of judgment was 25 percent more favorable than the monetary award,
the court shall award reasonable
attorneýs
fees and costs and the court shall set off such reasonable
attorneýs
fees and costs against any award; and
(d)(1)
The court shall order the payment of
attorneýs
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; provided, however, that if an appeal is taken
from such judgment, the court shall order payment of such
attorneýs
fees and expenses of litigation only upon remittitur affirming such
judgment.
(2)
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. In such case, the court
may disallow an award of
attorneýs
fees and costs.
(e)
Upon motion by the prevailing party at the time that the verdict or judgment is
rendered, the moving party may request that the finder of fact determine whether
the opposing party presented a frivolous claim or defense. In such event, the
court shall hold a separate bifurcated hearing at which the finder of fact shall
make a determination of whether such frivolous claims or defenses were asserted
and to award damages, if any, against the party presenting such frivolous claims
or defenses. Under this subsection:
(1)
Frivolous claims shall include, but are not limited to, the
following:
(A)
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;
(B)
A claim, defense, or other position with respect to which there existed such a
complete absence of any justiciable issue of law or fact that it could not be
reasonably believed that a court would accept the asserted claim, defense, or
other position; and
(C)
A claim, defense, or other position that was interposed for delay or
harassment;
(2)
Damages awarded may include reasonable and necessary
attorneýs
fees and expenses of litigation; and
(3)
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."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall apply to actions filed on or after
the effective date of this Act and to all pending actions the trial dates for
which are more than 60 days after the effective date of this Act.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.