CRANE COMPOSITES, INC.
WAYNE FARMS, LLC et al
OCGA § 9-11-68. Fulton Superior Court. Before Judge Fuller, Senior Judge.
Miller & Martin, Edward M. Newsom, Smith Moore Leatherwood, Robert B. Wedge, for appellant.
King & Spalding, Jessica E. Sabbath, William L. Durham II, Baker Donelson Bearman Caldwell & Berkowitz, Steven G. Hall, Butler Pappas Weihmuller Katz Craig, Hobart M. Hind, Jr., Cozen O'Connor, Jefferson C. McConnaughey, Michael A. McKenzie, Samuel S. Olens, Attorney General, Nels S.D. Peterson, Solicitor-General, for appellees.
THOMPSON, Chief Justice. Hines, P. J., Benham, Hunstein, Melton, Blackwell, JJ., and Judge A. Gregory Poole concur. Nahmias, J., disqualified.
Thompson, Chief Justice.
The question for decision in this case is whether OCGA § 9-11-68, a tort reform, fee-shifting statute, can be applied to a negligence action in which the injury occurred prior to the effective date of the statute, but in which the action was filed after that date. We answer this question affirmatively and, in so doing, we overrule L. P. Gas Industrial Equip. Co. v. Burch, 306 Ga.App. 156 (701 S.E.2d 602) (2010).
Wayne Farms owned and operated a chicken processing plant in Oakwood, Georgia. A fire broke out at the plant on May 19, 2003. Roughly three years later, Wayne Farms and its insurers filed suit against Crane Composites, Inc. (" Crane" ), which manufactured interior panels used in the plant, alleging Crane's negligence caused the fire to spread extensively. In the meantime, the legislature enacted OCGA § 9-11-68 (b) (1), which reads:
If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability [296 Ga. 272] or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.
On March 4, 2009, in the midst of litigation, Crane made a formal offer of settlement for $500,000; appellees did not accept the offer within 30 days and it was deemed rejected. On May 30, 2012, a jury returned a verdict in Crane's favor, absolving Crane of liability. Crane then sought to recover attorney fees and costs from Wayne Farms. The trial court denied Crane's request, relying on L. P. Gas, supra, which held that OCGA § 9-11-68 could not be applied in a negligence case where the underlying injury occurred prior to the effective date of the statute. Crane appealed, and an equally divided Court of Appeals transferred the case to this Court pursuant to Article VI, Section V, Paragraph V of the Georgia Constitution of 1983.
In Fowler Properties v. Dowland, 282 Ga. 76 (646 S.E.2d 197) (2007), plaintiff sued defendants for damages she allegedly sustained as a result of a slip and fall in defendants' parking lot. The suit was filed in 2002. In 2005, following the enactment of OCGA § 9-11-68, defendants made an offer to settle the case for $20,000. Plaintiff rejected the offer, and the case went to trial. After the jury rendered a verdict in favor of defendants, defendants moved for attorney fees pursuant to OCGA § 9-11-68. The trial court denied the request, finding the Code section unconstitutional. On appeal, this Court affirmed, ruling as follows:
[L]egislation which involves mere procedural or evidentiary changes may operate retrospectively; however, legislation which affects substantive rights may only operate prospectively. Enger v. Erwin, 245 Ga. 753, 754 (267 S.E.2d 25) (1980). The distinction is that a substantive law creates rights, duties, and obligations while a procedural law prescribes the methods of enforcing ...