Georgia Offer of Settlement: Fee Shifting, Timing, and Good Faith

A Georgia offer of settlement, made under O.C.G.A. § 9-11-68, is a written proposal in a tort case that carries a fee-shifting penalty: if the party who rejects it ends up with a judgment that misses the offer by more than 25% in the wrong direction, that party must pay the offeror’s post-rejection attorney fees. The award is mandatory once the numbers line up, and the fees can easily eclipse the underlying judgment.

When Fees Shift

The statute runs on two mirror-image triggers, depending on which side made the offer.

If a defendant offers and the plaintiff rejects, the defendant recovers reasonable attorney fees and litigation expenses when the final judgment is zero or less than 75% of the offer. A $100,000 defense offer that the plaintiff walks away from puts fees on the table if the jury comes back under $75,000 or finds no liability at all.¹

If a plaintiff offers and the defendant rejects, the plaintiff recovers fees when the judgment exceeds 125% of the offer. An $80,000 plaintiff’s demand that the defense refuses shifts fees if the verdict tops $100,000.¹

Recoverable fees run from the date of rejection through entry of judgment. A case that lingers a year past the rejection can generate substantial exposure. Once the threshold is met, the court has no discretion to trim or deny the award, aside from the narrow good faith exception discussed below. The Georgia Court of Appeals reaffirmed this in Blazys v. McKnight (2025), holding that the fee award is mandatory when the statutory requirements are satisfied and does not require any showing of bad faith by the rejecting party.²

Tort Claims Only

The statute reaches tort claims and nothing else. Its text authorizes a written offer “to settle a tort claim for the money specified in the offer.”¹ Contract disputes, property disputes, and other non-tort civil actions fall outside its reach. The Georgia Supreme Court upheld this scope in Smith v. Baptiste, 287 Ga. 23 (2010), rejecting a constitutional challenge and confirming that limiting the statute to tort cases serves a legitimate legislative purpose.

If your case mixes tort and non-tort claims, the offer has to be structured to address only the tort portion. A global offer that bundles a contract claim with a tort claim risks being found noncompliant.

What a Valid Offer Must Contain

A defective offer is worse than no offer. You lose the fee-shifting leverage without gaining anything in return, and courts have shown little tolerance for shortcuts. Every offer must:

Be in writing and expressly state that it is made under O.C.G.A. § 9-11-68
Identify the parties making and receiving the offer
Describe the claims the offer is intended to resolve
State any conditions with particularity, such as a required release or lien satisfaction
State the total amount of the proposal
Break out any punitive damages separately
Disclose whether attorney fees are included in the offer, and whether attorney fees are part of the underlying legal claim
Include a certificate of service and be served by certified mail or statutory overnight delivery

Do not file the offer with the court. It is served directly on the opposing party, which keeps it out of view of the judge and jury.

The “with particularity” requirement for conditions has generated the most litigation. In Great West Casualty Co. v. Bloomfield, the Georgia Court of Appeals upheld an offer that conditioned settlement on lien satisfaction, dismissal with prejudice, and a release and indemnification agreement, even though no draft release was attached. The court reasoned that if a condition is specific enough to make a settlement enforceable under Georgia contract principles, it satisfies § 9-11-68(a)(4).³ You do not have to attach every ancillary document, but vague gestures at “standard terms” or “customary releases” invite challenge. Describe the conditions clearly enough that the other side knows what it is agreeing to.

Timing Rules

An offer can be served any time more than 30 days after the summons and complaint are served, and no later than 30 days before trial. A counteroffer has a tighter window, at least 20 days before trial.¹

Once served, the offer must stay open at least 30 days. The offeror can pull it earlier in writing, but doing so forfeits any right to recover fees based on that offer. Both acceptance and rejection must be in writing and served on the offeror. If the offeree lets the 30 days lapse, the offer is effectively rejected, but a written rejection is cleaner because it fixes the date the fee clock starts running.¹

The Good Faith Exception

The mandatory fee award has one escape valve. Under subsection (d)(2), the court may find that the offer was not made in good faith and disallow the fee award, and it must issue an order explaining the basis for that finding.⁴

The exception is narrow. A token offer designed only to manufacture fee exposure might qualify, but courts have not read the provision expansively. The party attacking the offer bears the practical burden of persuading the court that the offer was a tactical weapon rather than a sincere attempt to resolve the case.

Strategy on Timing and Amount

The 30-day-before-trial deadline is a floor, not a target. Serve too early, before discovery has developed the strengths and weaknesses of the case, and the offeree can rationally reject it. Serve right at the deadline and you may not leave enough time for a serious evaluation, which can feed a bad-faith argument. The usable window is generally after key depositions and expert disclosures, when both sides can assess the case realistically.

Amount matters as much as timing. The 75% and 125% thresholds create a puzzle. A defendant who offers too high pays away money unnecessarily. A defendant who offers too low may never trigger fee-shifting because the plaintiff’s judgment stays above 75% of the offer. The same math runs in reverse for plaintiffs. Effective offers land close enough to the expected trial outcome that the offeree faces real risk of missing the threshold.

Federal Court Complications

Georgia tort cases sometimes end up in federal court through diversity jurisdiction, and the interaction between § 9-11-68 and Federal Rule of Civil Procedure 68 is not fully settled.

Rule 68 differs from Georgia’s statute in several respects. Only a party defending against a claim can serve an offer, plaintiffs cannot. The offer must be served at least 14 days before trial, with 14 days to accept. If the plaintiff rejects and then obtains a judgment no more favorable than the offer, the plaintiff must pay the defendant’s post-offer costs.⁵

The critical wrinkle is what “costs” means under Rule 68. The default covers traditional litigation costs like filing fees and transcripts, not attorney fees. In Marek v. Chesny, 473 U.S. 1 (1985), the Supreme Court held that attorney fees count as “costs” under Rule 68 only when the underlying substantive statute defines costs to include them.⁶ Georgia’s § 9-11-68 expressly awards attorney fees, which makes it substantially more powerful than the federal default.

Whether the Georgia provision applies in federal diversity cases turns on the Erie doctrine, which directs federal courts to apply state substantive law and federal procedural law. There is a strong argument that Georgia’s fee-shifting is substantive because ignoring it would materially change outcomes and encourage forum shopping, the very concerns Erie targets.⁷ Courts may also find that Rule 68 directly conflicts with and preempts the state procedure under Hanna v. Plumer, 380 U.S. 460 (1965). Federal courts in Georgia have not uniformly resolved this tension, and diversity litigants should be ready to argue both provisions.

1
Justia. Georgia Code 9-11-68 – Offers of Settlement; Damages for Frivolous Claims or Defenses
2
FindLaw. Blazys v McKnight
3
Justia. Great West Cas Co v Bloomfield
4
FindLaw. Georgia Code Title 9 Civil Practice 9-11-68
5
Legal Information Institute. Rule 68 Offer of Judgment
6
Justia. Marek v Chesny
7
Legal Information Institute. Erie Doctrine