§ 9-11-68.Offers of settlement; damages for frivolous claims or defenses

Subsection (a) sets the window and the content for a formal offer of settlement: it may be served more than 30 days after the summons and complaint but not less than 30 days before trial (20 days if it is a counteroffer), served on the other party but never filed with the court, and it must be denominated as an offer under this Code section, identify the parties, describe the claim, state any relevant conditions, state the total dollar amount and any portion allocated to punitive damages, address whether the amount includes attorney’s fees, and include a certificate of service by certified mail or statutory overnight delivery under Code Section 9-11-5.

The fee-shifting payoff comes in subsection (b). If a plaintiff rejects a defendant’s offer and the final judgment is one of no liability, or the plaintiff recovers less than 75 percent of that offer, the defendant may recover reasonable attorney’s fees and litigation expenses from the date of rejection through judgment. If a defendant rejects a plaintiff’s offer and the plaintiff ultimately recovers more than 125 percent of that offer, the plaintiff may recover its fees and expenses over the same period. An offer stays open for 30 days unless withdrawn sooner in writing before acceptance; silence for 30 days counts as rejection, a counteroffer counts as rejection (though it can serve as a new offer if denominated as one), and evidence of the offer is inadmissible except to enforce a settlement or to determine fees under this section.

Once a judgment qualifies under subsection (b), the court must order payment of fees and expenses — though if the judgment is appealed, payment waits for an affirming remittitur — but the court may also find that an offer wasn’t made in good faith and disallow the award on that basis. Subsection (e) supplies an entirely separate route: on motion of the prevailing party at the time of verdict or judgment, the court must hold a bifurcated hearing at which the fact-finder determines whether the opposing party pressed a frivolous claim or defense — one lacking substantial justification, made without good faith or with malice, resting on a complete absence of any justiciable issue, or interposed for delay or harassment — and must award damages, if any are found. What those damages may include is where the statute leaves room: reasonable and necessary attorney's fees and litigation expenses. A party choosing this route has to elect between it and the parallel procedure in Code Section 9-15-14; it cannot pursue both for the same claim or defense.