Facts
Does an offer of settlement served in a first lawsuit still have any effect after a lawsuit is dismissed and refiled? Or does the plaintiff have to re-serve it in the refiled action? This was the question the Court of Appeals had to answer in Carr v. Yim.
This case arose out of a vehicle collision. In the first lawsuit filed in Cherokee County, the Plaintiff served the Defendant with an offer of settlement for $5,000,000. The Defendant did not accept it. The Plaintiff voluntarily dismissed the lawsuit and refiled the lawsuit in Gwinnett County State Court. The Plaintiff did not send an offer of settlement in the second, refiled lawsuit.
At trial, the jury returned a verdict of $6,295,293, with a final judgment entered for $7,214,167.11. The Plaintiff then moved to amend the judgment to add fees and expenses under O.C.G.A. § 9-11-68 based on the offer of settlement served in the first lawsuit. The trial court denied the motion, reasoning that the statute required that the Plaintiff serve an offer of settlement in the renewal action. The Plaintiff appealed.
Issue & Holding
Can an offer of settlement served in a prior, dismissed lawsuit be the basis for an award of fees and expenses under § 9-11-68 in a subsequent, refiled lawsuit?
The Court of Appeals held that an offer of settlement in a prior lawsuit has no effect in a refiled lawsuit, and that a plaintiff must serve an offer of settlement in the refiled lawsuit if they want to recover fees and expenses.
Reasoning
The Court of Appeals began its analysis with the plain language of the statute. In interpreting it, the Court of Appeals stated that the language had to be strictly construed because attorney’s fees such as § 9-11-68 are in derogation of the common law.
The Court of Appeals focused primarily on two parts of the statute. The first was the language that stated the offer had to be served not less than 20 or 30 days before trial. The second part was the language that stated the offer must contain s tipulation to “dismiss the claim, or to allow judgment to be entered.” See O.C.G.A. § 9-11-68. In the Court’s eyes, this meant that an offer of settlement is “part and parcel of a pending or existing case” only.
Next, the Court analyzed the law on renewal actions. On this point, the Court observed that a renewal action is an action de novo. Prior decisions had held that “the procedural prerequisites of filing the renewed complaint and service of process must be met anew.” See, e.g., Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 (2014). While no prior Georgia appellate decisions had addressed this issue, the Court of Appeals approved of a federal district court decision that had decided this issue and concluded that an offer of settlement in a prior lawsuit had no applicability in the refiled lawsuit. Based on the effect of dismissal and renewal, the Court of Appeals concluded that an offer of settlement in a prior lawsuit did not survive the dismissal and renewal of a lawsuit.
Conclusion
Carr addresses an important question that Georgia appellate cases had not yet decided. If you have a lawsuit that you dismiss and refile, you should be aware that any offer of settlement you served in the first lawsuit has no effect. To recover fees and expenses based on an offer of settlement, you need to resend an offer of settlement in the renewal lawsuit.
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Citation: Carr v. Yim, No. A23A0687 (Ga. Ct. App. October 12, 2023)
