Georgia “Offer of Judgment” Rule Struck Down … Well, Sort Of

The Georgia Supreme Court has held that OCGA 9-11-68 is unconstitutional, at least with regard to cases that arose before the effective date of the statute. See the full opinion in Fowler Properties Inc. v. Dowland here.

The opinion is a bit enigmatic in that the Court stated “Our conclusion that OCGA § 9-11-68 is unconstitutional as a retrospective law renders it unnecessary to pass upon the other ground[s] of attack upon the constitutionality of this act.”  

Some lawyers read this as meaning that the law is unconstitutional only insofar as it applies retrospectively.  Others understand it to say that because the law applies retrospectively, it is unconstitutional.  The precedents the Court relied upon — ? Floyd County v. Scoggins, 164 Ga. 485, 490 (139 SE 11) (1927);  Forsyth County et al v. Georgia Transmission Corp., 280 Ga. 664(5) (632 S.E.2d 101) (2006); Cobb County v. Georgia Transmission Corp., 276 Ga. 367(2) (578 S.E.2d 852) (2003) — say that once a statute is held unconstitutional on any ground, there is no reason for it to pass on any other alleged deficiencies.  If that is what the Court intended, it may be that OCGSA  9-11-68 is dead.

Could it be that the Court concluded that further discussions of the law’s constitutionality is moot, having found the entire law unconstitutional?

Or perhaps they are awaiting a different case, decided under the revised version of OCGA 9-11-68 — perhaps one in which the plaintiff won a big award for attorney fees and expenses — in which to rule on the other arguments for unconstitutionality?

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.