Nineteen years ago, the Georgia Supreme Court decided the case of Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), holding that any party who brings or defends an action, or any part thereof, that lacks substantial justification or is imposed for delay or harassment, could be liable for a common law tort of abusive litigation to the opposing party who suffers damage thereby, as a counterlaim in the same civil action.

Georgia’s tort reform legislation, Senate Bill 3, includes in Section 5 an offer of settlement / offer of judgment provision that, if carried to its full potential, will be extremely oppressive to middle class plaintiffs and may incur “mutual assured destruction” on both plaintiff and defense bars. Or, if a tacit truce evolves and it is rarely used, it could become the benign encouragement of settlement that its legislative sponsors promised.
Limited to tort cases only, the new OCGA Section 9-11-68(effective 2/16/05, applicable to pending cases) provides that if a party rejects an offer under the code section and does not improve its position 25% at trial, the offeree is required to pay the offeror’s attorney fees and expenses after rejection of the offer. That’s bad enough, but it’s not that simple.