The Georgia Court of Appeals Strikes Down Another OCGA § 9-11-68 Attorney Fee Award as Being Ambiguous Regarding Resolution of Tort Claims Only – by J. Robb Cruser

Last year, in Casemetrix LLC v. Sherpa Web Studios, Inc., the Georgia Court of Appeals struck down an OCGA § 9-11-68 attorney fee award. The Court made two central points. First, the statute applies “to resolution of tort claims only.” Id. And second, the offer must be unambiguous concerning resolution of tort claims only. In Casemetrix, the Court concluded that the offer was ambiguous because it was capable of two “equally plausible” readings – one for the resolution of tort claims only and the other for the resolution of both tort and contract claims. The Court concluded, “because the offer was unclear and ambiguous, the requirements of OCGA § 9-11-68 were not met, and we reverse the award of attorney fees to Sherpa.”  Id.

Last week (January 29, 2021), in Eichenblatt v. Piedmont/Maple, LLC, the Court of Appeals struck down another OCGA § 9-11-68 attorney fee award in the amount of $837,444 for similar reasons. The Court found that “[b]ecause a ‘plausible reading of the offer [here] is that it required settlement of both [the] tort claim and [the] contract claim,’ the trial court erred in ruling that the offer was enforceable under OCGA § 9-11-68 (a). Accordingly, we reverse its award of attorney fees to appellees.”  Id.

The Takeaway:  OCGA § 9-11-68 applies to tort claims only and the Georgia Court of Appeals has struck down OCGA § 9-11-68 offers that go beyond tort claims. Specifically, if the OCGA § 9-11-68 offer includes contract claims, or is ambiguous whether it includes contract claims, then
OCGA § 9-11-68 attorney fee awards won’t pass appellate review.