Maybe the title of this pose does not exclaim what a big deal this case is for litigants. The Supreme Court of Georgia held that it is not a double recovery for a Plaintiff to receive attorneys' fees and expenses under both O.C.G.A. § 13-6-11 and O.C.G.A. § 9-11-68(b)(2) in the same case. Junior v. Graham, S21G0578, 2022 WL 677415 (2022).
In Junior, the plaintiff in an auto injury case brought a claim for compensatory damages, punitive damages, and attorney fees and litigation costs under O.C.G.A § 13-6-11. Id. at *1. At some point during the litigation, the plaintiff made an offer of settlement under O.C.G.A. § 9-11-68 for $600,000.00. Id. The defendant rejected this offer, and the plaintiff later prevailed at trial where he was awarded $3,000,000.00 in compensatory damages, $1,200,000.00 in attorney fees, and $51,554.95 in litigation expenses. Id. The amount that the jury awarded was over 125% of the offer of settlement, so plaintiff then sought attorneys' fees and expenses under O.C.G.A. § 9-11-68, which the trial court denied stating it would be a double recovery. Id. The Court of Appeals also denied attorneys' fees twice, albeit for different reasons. The Supreme Court of Georgia, however, reversed and stated a plaintiff could collect under both statutes, as described below.
O.C.G.A. § 9-11-68(b)(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 attorney’s fees and expenses of litigation incurred by the plaintiff or on the plaintiff’s behalf from the date of the rejection of the offer of settlement through the entry of judgment.
O.C.G.A. § 9-11-68 (d) (1) provides that “[t]he court shall order the payment of [such] fees and expenses...upon receipt of proof that the judgment is one to which the provisions of either [O.C.G.A. § 9-11-68 (b) (1) or (2)] apply[.]”
For a plaintiff seeking to recover under this provision, the only prerequisites for recovery are the making of a good faith offer of settlement that complied with the requirements of O.C.G.A. § 9-11-68 (a) (which sets forth the procedural requirements for invoking the statute), the rejection of the offer by the defendant, and the plaintiff’s recovery of a final judgment in an amount greater than 125 percent of that offer. See O.C.G.A. § 9-11-68 (b) (2), (d) (1)-(2). The “clear purpose” of O.C.G.A. § 9-11-68 “is to encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation,” thereby advancing “this State’s strong public policy of encouraging negotiations and settlements.” (Citation and punctuation omitted.) Smith v. Baptiste, 287 Ga. 23, 29 (2), 694 S.E.2d 83 (2010).
O.C.G.A. § 13-6-11:
The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
The Two Statutes Read Together
Georgia, as part of its common law and public policy, has always prohibited a plaintiff from a double recovery of damages; the plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole. Georgia Northeastern Railroad, Inc. v. Lusk, 277 Ga. 245, 246 587 S.E.2d 643 (2003); See also Marvin Nix Dev. Co. v. United Cmty. Bank, 302 Ga. App. 566, 568, 692 S.E.2d 23 (2010) (“While a party may pursue inconsistent remedies, he is not permitted a double recovery of the same damages for the same wrong. He is entitled to only one satisfaction of the same damages, in either contract or tort.”).
An exception to this decisional rule, of course, is where a greater recovery is authorized by statute. See, e.g., O.C.G.A. §§ 16-14-6 (c) (providing for recovery of treble damages in a civil suit arising from a violation of Georgia’s RICO Act); 44-5-48 (c) (providing for treble damages for a willful violation of the statute’s provisions pertaining to requirements for deeds conveying interest in real property that has been used as a commercial landfill).
The Supreme Court of Georgia clarified that damages under O.C.G.A. § 13-6-11 are compensatory. Junior v, 2022 WL 677415 at *4. An award under O.C.G.A. § 9-11-68 (b) is not an independent tort ‘claim’ or a component of tort damages; rather, such awards are best understood as one of many potential costs associated with tort litigation in Georgia, and in particular inappropriate conduct during such litigation. Georgia Dept. of Corrections v. Couch, 295 Ga. 469, 480, 759 S.E.2d 804 (2014). Therefore, O.C.G.A. § 9-11-68(b)(2) is a sanction for bad litigation. Junior v, 2022 WL 677415 at *4-*5.
O.C.G.A. § 13-6-11 permits a jury to award fees and expenses as part of damages, however, O.C.G.A. § 9-11-68 (d) (1) requires that such fees be awarded by the trial court after the entry of judgment when the statutory conditions are met. Id. at *5.
The Supreme Court of Georgia also stated that where the General Assembly wanted set off for such awards, they expressly stated so in the statute, which was not done here. For instance, subsection (e) (3), which expressly prohibits recovery under both that provision and O.C.G.A. § 9-15-14. Both O.C.G.A. §§ 9-11-68(e) and 9-15-14 address similar claims of frivolous litigation, and the General Assembly specified that “[a] party may elect to pursue either the procedure specified in this subsection or the procedure specified in [O.C.G.A. § 9-15-14], but not both.” (Emphasis supplied.) O.C.G.A. § 9-11-68 (e) (3). Id. at *5. Neither provision at issue contains such language. Id. at *6.
Lastly, O.C.G.A. § 9-11-68 (b) (2) speaks of attorney fees and expenses of litigation “incurred” – past tense. Whether a liability or expense has been satisfied is separate from whether it was incurred – that is, brought on oneself as a liability or expense – in the first instance. Here, the fact that Junior was compensated for his attorney fees and litigation expenses through an award of damages under O.C.G.A. § 13-6-11 did not change the fact that those fees and expenses had been incurred as the measure of the sanction to which he could be entitled under O.C.G.A. § 9-11-68 (b) (2). As such, there is no need for setoff. Id.