It is no secret that lawsuits are expensive. The default rule, otherwise known as the “American Rule,” requires each party to bear his or her own attorneys’ fees, win or lose. That said, Georgia’s offer of settlement statute provides one mechanism to shift those fees onto an adversary.
An offer of settlement under O.C.G.A. § 9-11-68 is a way a party can shift their attorneys’ fees onto another party via a settlement offer. But there’s a catch. The statute provides that offers of settlement can be used to settle a tort claim. This begs the question: can a party recover their attorneys’ fees via an offer of settlement for non-tort claims in the same suit?
The short answer: it depends
The Georgia Supreme Court has not directly ruled on whether a party may recover attorneys’ fees under O.C.G.A. § 9-11-68 for a claim that is not, but is related to, a tort claim. That said, Georgia’s Court of Appeals and other courts interpreting the statute have ruled that a party may recover fees under section 9-11-68 for non-tort claims in certain circumstances.
Specifically, attorneys’ fees for non-tort claims can be lumped with attorneys’ fees for tort claims awarded via an offer of settlement if the non-tort claim is “premised entirely” on the tort claims in the offer. Courts reason that where a non-tort claim is “premised entirely” on a tort claim, counsel must perform the same tasks and present the same defenses for both claims. Thus, counsel need not segregate their fees for each.
“Premised Entirely”
The “premised entirely” approach has been applied multiple ways, including where:
- the same arguments are dispositive of both the tort and non-tort claim;
- the work done for both the tort and non-tort claims is the same;
- the tort and non-tort claims arose from the same events and are based on the same factual allegations; or
- the arguments for both the tort and non-tort claims are intermingled.
Where the non-tort claim is not “premised entirely” on the tort claim in the offer, the party cannot recover fees related to the non-tort claim through an offer of settlement. Instead, the party must segregate them.
Conclusion
In sum, a party can recover more than just the attorneys’ fees related to the tort claims in the offer via an offer of settlement. When non-tort claims are “premised entirely” on tort claims in an offer of settlement, the opportunity arises to recover fees for the non-tort claims, too.
Understanding the intricacies of an offer of settlement can be a powerful tool in litigation strategy. If you have any questions on how you could benefit from making an offer of settlement, please reach out.
