Joe Burch was injured on December 14, 2004, when a vaporizer exploded. In February 2006, Burch and his wife, Sandra, filed a negligence action in the Superior Court of Fayette County, against A-Tech Equipment, Inc. and other defendants. In June 2006, the Burches amended the complaint and added a claim against L. P. Gas Industrial Equipment Company “L. P.”. After L. P. won a defense verdict,1 it filed a motion pursuant to OCGA § 9-11-68 for the attorney fees and expenses of litigation it incurred after the Burches rejected its settlement offer.2 The trial court denied L. P.’s motion, and L. P. appeals, contending the trial court erred in failing to enforce OCGA § 9-11-68. For the reasons that follow, we affirm.3 It is well settled that legislation which involves mere procedural or evidentiary changes may operate retrospectively; however, legislation which affects substantive rights may only operate prospectively. The distinction is that a substantive law creates rights, duties, and obligations while a procedural law prescribes the methods of enforcing those rights, duties, and obligations. Citations omitted. Fowler Properties v. Dowland , 282 Ga. 76, 78 1 646 SE2d 197 2007.4 In Fowler Properties , the Supreme Court of Georgia determined that OCGA § 9-11-68 b operates as a substantive law because it “affects the rights of parties by imposing an additional duty and obligation to pay an opposing party’s attorney fees when a final judgment does not meet a certain amount or is one of no liability.” 282 Ga. 78 1.5 Consequently, OCGA § 9-11-68 b may only operate prospectively. Id.
L. P. contends that OCGA § 9-11-68 applies in this case because the Burches filed their tort claims after the effective date of the Code section, February 16, 2005.6 As L. P. notes, the Supreme Court of Georgia stated its holding in Fowler Properties as follows: When the plaintiff instituted her tort action on December 18, 2002, the possibility that she may be responsible for paying the opposing party’s attorney fees and expenses of litigation by rejecting an offer of settlement did not exist because OCGA § 9-11-68 did not take effect until more than three years later. . . . By creating a new obligation to pay an opposing party’s attorney fees when a final judgment does not meet a certain amount or is one of no liability, the statute operates as a substantive law, which is unconstitutional given its retroactive effect to pending cases like this one. 282 Ga. at 78 1. Based on this language, L. P. argues that OCGA § 9-11-68 is deemed to have an unconstitutional retroactive effect only on actions that were pending on February 16, 2005.7
