A Georgia court was asked to rule on litigation expenses in a personal injury action.
The expenses of litigation typically aren’t allowed as part of the damages awarded to a plaintiff, but if a jury finds that the defendant acted in bad faith, it’s permitted. The jury should determine from the evidence the expense if any, that will be allowed. To recover attorney fees under Georgia law, the plaintiff may show that any one of the three conditions exists:
- Bad faith;
- Stubborn litigiousness; or
- Unnecessary trouble and expense.
However, a claim pursuant to Georgia Statute § 13-6-11 must be both pled and proven. An award of attorney fees can’t stand where the plaintiff fails to prove the actual costs of his attorneys and the reasonableness of those costs.
Background
This case arises from an accident in September 2018, where the plaintiff was driving in a Sam’s Club parking lot when he allegedly collided with a tractor-trailer owned by Wal-Mart and driven by Stephen the commercial vehicle driver (the “Defendants”). The police report said that the semi driver said he missed his turn and started backing up. He said he didn’t see the plaintiff and hit him.
The plaintiff stated he was behind a tractor-trailer heading east in the parking lot. In addition, he said when the commercial truck driver began to back up, he honked his horn and the big rig hit him pushing him back while he locked the brakes. The plaintiff said he felt a little dizzy and was asked if he needed medical attention. He refused any medical attention.
The police report listed the contributing factor of the alleged collision as “improper backing.” But the truck driver has denied making any impact with the plaintiff’s vehicle, and a photograph taken immediately after the incident showed no exterior damage to the plaintiff’s vehicle.
The plaintiff asserted claims for negligence against the commercial vehicle driver and Wal-Mart, as well as a claim for vicarious liability against Wal-Mart. He sought punitive damages and litigation expenses as well as damages for physical injuries, medical expenses, and other related expenses.
The defendants moved to dismiss the claim for litigation expenses, arguing that they didn’t act in bad faith, been stubbornly litigious, or caused unnecessary trouble and expense as a matter of law.
Plaintiff’s Claim for Litigation Expenses
The Defendants moved to dismiss the plaintiff’s claim for litigation expenses. U.S. District Judge Thomas W. Thrash, Jr. wrote that under O.C.G.A. § 13-6-11:
[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
Judge Thrash explained that the plaintiff may show that any one of the three conditions exists. He went on to say that questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense are generally, but not always, questions for the jury to decide. Citing a 2005 decision, the judge wrote that “when the evidence shows the existence of a genuine factual or legal dispute as to liability, the amount of damages, or any comparable issue, then attorney fees are not authorized.”
The plaintiff claimed that the stubborn litigiousness and unnecessary trouble and expense prongs were satisfied here because there was no bona fide controversy as to the defendants’ liability for the alleged collision. The sole evidence offered for this claim is “the commercial vehicle driver’s current assertion that no impact occurred, despite knowing and having admitted the opposite immediately following the wreck.”
According to the police report, the truck driver said “he missed his turn and started backing up. He said he did not see [the plaintiff] and hit him.” However, the Judge Thrash determined based on other evidence that there remained a genuine factual and legal dispute on the issue of liability. Throughout this litigation, the commercial vehicle driver denied that there was any impact with the plaintiff’s vehicle, and he submitted a photo and the plaintiff’s deposition testimony to support that the plaintiff’s vehicle suffered no damage in the incident.
While the Plaintiff based his entire case for litigation expenses on the police report, the statements made in that document aren’t conclusive as to whether the driver’s tractor-trailer in fact made contact with the plaintiff’s vehicle, or whether the commercial vehicle driver was at fault in the event of a collision. Rather, Judge Thrash said, the defendants may (and do) controvert or explain the police report’s findings with their own evidence, and the commercial vehicle driver has consistently “denie[d] there was a wreck” in response to the plaintiff’s admission requests, interrogatories, and deposition questions.
Moreover, the judge noted that the defendants’ Answer and brief raised a number of valid reasons to question the plaintiff’s claims. For example, the defendants asserted:
- They didn’t breach a duty owed to the plaintiff;
- They weren’t the proximate cause of the plaintiff’s alleged injuries; and
- The plaintiff’s claims may be barred or reduced by his contributory or comparative negligence.
The Plaintiff also agreed to voluntarily dismiss two of his five claims—for direct negligence as to Wal-Mart and for punitive damages. Judge Thrash said that in similar vehicular collision cases, Georgia courts have authorized claims for litigation expenses where the evidence “not only demonstrated the absence of a bona fide controversy, but also showed an utter refusal on the part of the defendant to resolve the matter without resort to litigation.” Here, the defendants mounted a legitimate defense to the plaintiff’s claims on the issues of liability and damages, and—according to the pleadings and the evidence— they didn’t engaged in the sort of deceitful, post-collision maneuvers that warranted an award of attorney fees in other Georgia vehicular collision cases.
As a result, the defendants’ motion was granted. Woods v. Wal-Mart Transp., 2022 U.S. Dist. LEXIS 43767 (N. D. Ga. March 11, 2022).
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