Great West Casualty Co. v. Bloomfield ( 2011 )

BARNES, Presiding Judge.

Following a defense verdict, the trial court denied a defendant’s motion for more than $69,000 in attorney fees under Georgia’s “offer of settlement” statute, OCGA § 9-11-68, in this wrongful death action against two tractor-trailer truck drivers, their employers, and their insurers. The trial court found that the defendant was not entitled to attorney fees because its initial offer to settle for $25,000 was not made in good faith. The defendant appeals, arguing that the trial court erred in denying its motion made after the jury returned a verdict against only the other truck driver. Because the trial court did not abuse its discretion in finding that the settlement offer was not made in good faith and declining to award attorney fees to the defendant, we affirm.

This is the second appearance of this case before this Court. As recited in Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26 (693 SE2d 99) (2010), the underlying procedural posture of the case on the first appeal was as follows:

On June 23, 2006, Nola Rowe Bloomfield was fatally injured in a vehicular accident. Her husband, Gerald Bloomfield, and her estate, through its administrator Roger Kirschen-baum (collectively, “Bloomfield”), brought an action alleging that the accident was caused by the actions of two separate truck drivers and naming as defendants the drivers, the companies that owned the drivers’ trucks, and those companies’ liability insurers. On June 12, 2007, one of the drivers, his trucking company, and that company’s insurer, Great West Casualty Company (collectively, “Great West”), made an offer of settlement pursuant to OCGA § 9-11-68. Bloomfield rejected the offer in writing on July 16, 2007. A jury subsequently returned a verdict of no liability as to Great West, and the court entered a judgment on that verdict. Great West then requested attorney fees and expenses of litigation pursuant to OCGA § 9-11-68.

The trial court initially denied the attorney fee request without explanation, but this Court vacated the order and remanded the case for the trial court to set forth the basis for its ruling, as required by OCGA § 9-11-68 (d) (2). Great West Cas. Co., 303 Ga. App. at 30 (3).

On remand, the trial court made specific findings of fact to support its determination that Great West’s initial $25,000 settlement offer was not made in good faith, and thus that Great West was not entitled to attorney fees under OCGA § 9-11-68. The trial court found that the initial settlement offer of $25,000 “was not a reasonable offer or a realistic assessment of liability in a wrongful death case,” that Great West’s driver paid the traffic ticket fine, and that Great West never deposed or even interviewed the first police officer on the scene who testified at trial for the plaintiff. It also found that, absent evidence that Great West obtained “new discovery or factual evidence,” its offer during trial to settle for the policy limits of $1 million “showed the bad faith intent of the defendant’s initial offer.”

The offer of settlement statute provides that either party may serve upon the other party a written demand or offer to settle a tort claim for a specified amount of money. OCGA § 9-11-68 (a). “Moreover, if either party’s settlement demand or offer is rejected, that party may be entitled to recover attorney[ ] fees” if the final judgment varies sufficiently from the offer or demand.¹ Smith v. Baptiste, 287 Ga. 23, 24 (1) (694 SE2d 83) (2010).

If a party is entitled to recover attorney fees and expenses of litigation because the judgment meets the requirements of OCGA § 9-11-68 (b), “the court may determine that [a settlement] offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney! ] fees and costs.” OCGA § 9-11-68 (d). We review for abuse of discretion the trial court’s decision on whether a settlement offer was made in good or bad faith. Cohen v. Alfred and Adele Davis Academy, 310 Ga. App. 761, 763 (1) (714 SE2d 350) (2011) (affirming trial court’s finding that settlement offer was made in good faith and granting motion for fees).

Great West argues that the trial court erred in denying its motion for fees and costs because its $25,000 settlement offer was made in good faith (1) as a matter of law, as determined by the jury verdict in its favor, and (2) because it had a reasonable basis for making the offer.

1. First, the defense verdict alone is not sufficient under the statute to determine that Great West’s initial offer was made in good faith. If it were, the statute would simply stop after providing in OCGA § 9-11-68 (d) (1) that the trial court “shall” award fees if the judgment meets the numerical requirements of OCGA § 9-11-68 (b). But instead, if the judgment meets that requirement, the trial court then has the discretion under OCGA § 9-11-68 (d) (2) to determine whether or not the offer was made in good faith and whether to disallow the fee award. Thus, while the defense verdict is relevant to the issue of good faith, it is not conclusive evidence that Great West acted in good faith.² Instead, that determination is left to the trial court’s discretion under OCGA § 9-11-68 (d) (2), and the defense verdict alone is insufficient to establish the good faith of the $25,000 settlement offer as a matter of law.

2. Great West also argues that it had a reasonable basis for offering to settle the wrongful death claim against it for $25,000, based on the underlying facts of the case as proven by the verdict, and that the offer was accordingly made in good faith. To explain its offer, Great West notes that this accident was in reality two collisions, and that Nora Bloomfield’s death was due entirely to the negligence of the second driver who caused the second wreck. Great West’s driver clipped another car while changing lanes, causing that first car to wreck. The car in which Nora Bloomfield was a passenger slowed while approaching the first wreck and was rear-ended by the second driver, against whom the jury ultimately assessed 100 percent liability.

When Bloomfield rejected Great West’s offer to settle and release all claims against it for $25,000, he noted that the offer could not be construed in good faith because “no one disputes the damages grossly exceed the value of [the] offer.” The jury apparently agreed that the damages grossly exceeded the value of the offer, awarding $10.42 million in damages and $44 million in punitive damages against Great West’s co-defendant.³ While Great West now asserts that it offered a nominal amount in settlement because it never thought its insured was responsible in any way for the fatal collision, without that first collision, there would not have been a second one. Moreover, a sufficient possibility remained that the jury might return a large verdict against both truckers to induce Great West to offer a $1 million settlement during the trial, and while Great West argues that it was simply responding to the events as they unfolded during trial, its second offer was a factor that the trial court properly considered in reviewing Great West’s motion for attorney fees and costs.

Just as the jury determines the reasonableness of an insurer’s response to a request to settle within policy limits, see Cotton States Mut. Ins. Co. v. Brightman, 276 Ga. 683, 686-687 (1) (580 SE2d 519) (2003), the trial court determines the reasonableness of an insurer’s offer to settle. It is a factual determination, based on the trial court’s assessment of the case, the parties, the lawyers, and all of the other factors that go into such a determination, which the trial court has gathered during the progress of the case.

In explaining that appellate courts defer to trial courts’ rulings on the admissibility of evidence, our Supreme Court has stated, “This is so because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding.” Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 456-457 (2) (543 SE2d 21) (2001). Further, “[o]n appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion.” Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (5) (481 SE2d 541) (1997) (affirming trial court’s decision not to award attorney fees under OCGA § 13-6-11).

Similarly, a trial court’s consideration of an offer of settlement is made within the context of an entire proceeding. In this case, while it is possible to quarrel with each element of the trial court’s reasons for declining to award attorney fees to Great West, this Court cannot conclude that the trial court abused its discretion in deciding not to award attorney fees to Great West.

Judgment affirmed.

Miller, P. J., Phipps, P. J., Ellington and Doyle, JJ., concur. Adams and Blackwell, JJ., dissent.

1 Specifically, OCGA § 9-11-68 (b) provides that if the plaintiff receives 75 percent or less of the defendant’s rejected settlement offer, the defendant may seek attorney fees, and if the plaintiff receives 125 percent or more of the plaintiffs rejected settlement demand, the plaintiff may seek attorney fees.

2 Great West relies on dicta in a concurring opinion in Smith, 287 Ga. at 38 (4) (Nahmias, J., concurring), to argue that the defense verdict in this case establishes its good faith as a matter of law. The concurring justice discussed the plaintiffs’ failure to raise a constitutional challenge to OCGA § 9-11-68 before the trial court entered summary judgment against them and noted in a parenthetical aside, “That final judgment, by the way, determines as a matter of fact and law that the value of appellees’ claims was zero, so that appellants’ settlement offer of $6,000 was reasonable.”

3 The trial court reduced the punitive damages award to the statutory cap of $250,000, per OCGA § 51-12-5.1 (g).