Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Pipkin, Judge. Mittie Anglin filed a medical malpractice suit against Dr. Stephanie Smith and Gwinnett Anesthesia Service, PC (collectively “the defendants”).[1] Following a defense verdict, the defendants moved for payment of attorney fees under OCGA § 9-11-68, Georgia’s offer of settlement statute. The trial court granted the motion, awarding $177,916.71 in attorney fees. Anglin appeals, arguing that the trial court improperly awarded fees based upon a finding of frivolity. We affirm. The facts of this case are set forth in this Court’s opinion in Anglin v. Smith, 346 Ga. App. 456 (816 SE2d 426) (2018). Succinctly stated, the facts show that Anglin, who suffered from back pain, had Dr. Smith administer a series of injections into her low back. Following the second such injection, Anglin claims to have suffered loss of leg function and urinary incontinence. In April 2012, Anglin filed suit against the defendants. In September 2013 — after having conducted much of the discovery — the defendants offered to settle the case for $1,000.00 in accordance with OCGA § 9-11-68. Anglin did not accept the offer, and the case went to trial. The jury found in favor of the defendants. Thereafter, the defendants filed a motion for OCGA § 9-11-68 attorney fees, and the trial court granted the motion. In its order, the trial court reasoned: Through discovery the crux of the case became apparent: [Anglin's] trial theory depended on the jury accepting that [Anglin] was paralyzed and incontinent on the day when she last saw [Dr. Smith], and for several days thereafter. But [Anglin's] medical records and treating providers confirmed that [Anglin] was ambulatory and not paralyzed when they saw [Anglin]. The only evidence supporting [Anglin's] theory was her own testimony to the contrary. [Anglin's] three experts each testified that their standard of care criticism relied entirely on [Anglin's] uncorroborated, indeed roundly contradicted version of the facts. If [Anglin] did not suffer paralysis and incontinence on the day when she last saw [Dr. Smith], then Defendants breached no standard of care. As a result, given the incredible nature of [Anglin's] claims, Defendants made a $1,000 Offer of Settlement. The case progressed to trial whereupon the jury returned a verdict in Defendants’ favor. The Court agrees with Defendants, and finds that, under the facts of this case, $1,000 was a good faith offer. [Anglin] raises no objection to the fee amount Defendants claim, which this Court finds is fair and reasonable. Therefore, this Court HEREBY GRANTS Defendants’ motion for fees in the amount of $177,916.71. (Footnote omitted). According to Anglin, this order demonstrates that the trial court considered the case to be frivolous. Anglin contends that, under OCGA § 9-11-68 (e), the issue of frivolity is solely a jury issue. We disagree. OCGA § 91168, which is commonly referred to as Georgia’s “offer of settlement” statute, was enacted to encourage litigants in tort actions to make good faith efforts to settle cases in order to avoid unnecessary litigation. See Georgia Dept. of Corrections v. Couch, 295 Ga. 469, 470471 (1) (b) (759 SE2d 804) (2014). The statute applies when a party rejects a written good faith offer to settle a tort claim.[2] OCGA § 91168 (a) (setting forth the requirements for the offer). If the plaintiff rejects the defendant’s offer, the statute provides that: the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s 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. OCGA § 91168 (b) (1). Once a prevailing party demonstrates that OCGA § 91168 applies, the trial court “shall order the payment of attorney’s fees and expenses of litigation[.]” OCGA § 91168 (d) (1). Such an award may be disallowed only where the trial court finds the settlement offer was not made in good faith. See OCGA § 91168 (d) (2). Although the trial court found that the $1,000.00 settlement offer was made in good faith, Anglin contends the trial court actually made a finding of frivolity under OCGA § 9-11-68 (e). According to Anglin, subsection (e) requires that this determination be made by the jury. Under OCGA § 9-11-68 (e), once a judgment or verdict is rendered, the prevailing party may file a motion requesting that the factfinder — in this case the jury — determine whether a claim or defense was frivolous and to award damages accordingly. “Damages awarded may include reasonable and necessary attorney’s fees and expenses of litigation.” (Emphasis supplied). OCGA § 9-11-68 (e) (2). But an award under this subsection is not limited to attorney fees and expenses of litigation. Rather, the purpose of this code section is to make the prevailing party whole. See Showan v. Pressdee, 922 F3d 1211, 1226 (VII) (B) (1) (11th Cir. 2019). In other words, subsection (e) is distinct from the remaining provisions of OCGA § 9-11-68, which govern simply an award of attorney fees. See Richardson v. Locklyn, 339 Ga. App. 457, 463 (793 SE2d 640) (2016). In their OCGA § 9-11-68 motion, the defendants sought only payment of attorney fees; they did not seek damages in accordance with OCGA § 9-11-68 (e). Thus, the defendants were entitled to attorney fees unless the offer was not made in good faith. See OCGA § 9-11-68 (d) (1), (2). In making the determination that the $1,000.00 settlement offer was made in good faith, the trial court properly considered the merits of the underlying case. See Cohen v. Alfred & Adele Davis Academy, Inc., 310 Ga. App. 761, 763 (1) (714 SE2d 350) (2011) (nominal settlement offer not made in bad faith where defendants “reasonably and correctly anticipated that its exposure was minimal”). Indeed, we fail to see how a trial court could determine whether any nominal settlement offer was made in good faith without considering the merits of the underlying case. We do not believe that the consideration of the merits transformed the defendant’s motion into a motion for damages under OCGA § 9-11-68 (e). In a related argument, Anglin contends that the trial court abused its discretion in failing to weigh both objective and subjective factors in concluding the $1,000.00 settlement offer was made in good faith. Specifically, Anglin maintains that the trial court’s order “contains no discussion of the objective factors” outlined in Richardson v. Locklyn, supra. In Richardson, we addressed what objective factors a trial court must consider before denying a motion for OCGA § 9-11-68 attorney fees. Richardson, 339 Ga. App. at 460-461. As stated above, a defendant that meets the statutory criteria is entitled to a fee award under OCGA § 9-11-68 (b) (1). Thus, where a trial court refuses to award fees to which a litigant is otherwise entitled, we have required the trial court to undertake the requisite analysis to show its decision was justified. See Richardson, supra; Coastal Bank v. Rawlins, 347 Ga. App. 847, 851 (1) (821 SE2d 89) (2018). We are unaware of any requirement that a trial court undertake such an inquiry when awarding attorney fees under OCGA § 9-11-68 (d). Likewise, a judge who awards attorney fees under OCGA § 9-11-68 is not required to explain its reasoning in an order. As we have already held, “[b]y its terms, OCGA § 9-11-68 does not require that the trial court make written findings of fact or conclusions of law unless the court concludes that an offer was not made in good faith, and we decline to impose a requirement not mandated by the statute.” (Footnote omitted). Cohen, 310 Ga. App. at 764 (2). Accordingly, Anglin has shown no basis for reversing the trial court’s order awarding OCGA § 9-11-68 attorney fees. Judgment affirmed. Barnes, P. J., and Gobeil, J., concur.

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

BenefitsPRO Broker Expo 2021

May 18, 2021 - August 18, 2021
Virtual / San Diego, CA

The premier educational and networking event for employee benefits brokers and agents.


African Legal Awards 2021

September 03, 2021

The African Legal Awards are set out to recognise exceptional achievement from Africa s legal elite.


General Counsel Summit (GCS) 2021

September 07, 2021 - September 08, 2021

General Counsel Summit is the premier event for in-house counsel, hosting esteemed legal minds from all sectors of the economy.


Long Term In-house Corporate Securities Position – Atlanta or Remote

Atlanta, Georgia, United States

Legalpeople is currently working with an in-house client located in the Buckhead area of Atlanta on their need for a full-time temporary lon...

Apply Now ›

Attorney- Simsbury, Connecticut

Simsbury, Connecticut, United States

Farber, Brocks & Zane, LLP is seeking an attorney for our Simsbury, CT office to join our growing and active insurance coverage practice gro...

Apply Now ›

Insurance Coverage Attorney- Long Island

Garden City, New York, United States

Farber, Brocks & Zane, LLP is seeking to add legal talent to its active and growing insurance coverage practice group. For our Garden City, ...

Apply Now ›


Connecticut Law Tribune

View Announcement ›



VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN is pleased to welcome Frank Breitman, Esq. a talented and respected litigator to our ranks of trial lawyers.

View Announcement ›



HARWOOD LLOYD, LLC Welcomes Beth L. Barnhard, Esq. Beth has joined the firm as Counsel in the Wills, Trusts and Estates Department. She is Certified to be an Elder Law Attorney (CELA) by the ABAaccredited National Elder Law Foundation.

View Announcement ›