WHEN THE DEFENDANT SAYS 'SO SUE ME'

The Nuts & Bolts of Attorneys Fees for Stubbornly Litigious Conduct

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By: John A. Houghton

The Plaintiff can successfully recover attorney’s fees and litigation in expenses in a number of scenarios in civil litigation. One such situation that many Plaintiff’s lawyers face involve cases in which the defense allows a rather simple clear fault case to drag on for months through stubborn conduct resulting in excessive time and expense. Georgia law allows for a remedy to deter this conduct.

O.C.G.A. § 13-6-11 provides that litigation expenses may be allowed as damages “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” Daniel v. Smith, 266 Ga. App. 637, 638 (2004).

The Plaintiff can recover her litigation expenses for stubbornly litigious conduct if the jury finds that a ‘bona fide controversy’ does not exist as to liability. Daniel, 266 Ga. App. at 641. The following jury charge was given and upheld by the Georgia Court of Appeals in a case involving O.C.G.A. § 13-6-11 claims: “If you find that bona fide controversy exists as to defendant's liability, then plaintiff would not be entitled to recover his expenses of litigation and attorney fees.” Daniel, 266 Ga. App. at 641.

Generally, a bona fide controversy does not exist where is fault is admitted by the Defendant. "[I]t is for the jury to determine whether there was a bona fide controversy, unless the facts preclude such a finding as a matter of law. Daniel v. Smith, 266 Ga. App. 637 (2004) citing Webster v. Brown, 213 Ga. App. 845, 846 (1994).

The extent of damages is a dispute in every personal injury case, but this is not the controlling factor as to whether or not there is a bona fide controversy.

The Georgia Court of Appeals has held that a bona fide controversy does not exist where the Defendant has admitted to facts in deposition that demonstrate his fault. Daniel v. Smith, 266 Ga. App. 637 (2004). Daniel v. Smith involved a failure to yield auto wreck in which the defendant admitted to blocking an intersection when the Plaintiff had the right-of-way. 266 Ga. App. at 637. Despite his testimony which admitted the traffic law violation, the defendant in Daniel insisted there was a bona fide controversy as to liability, and filed a dispositive motion at trial as to O.C.G.A. § 13-6-11 damages. 266 Ga. App. 637 (2004)

The Daniel court affirmed the trial court’s denial of directed verdict holding:

Here, given the relative position of the vehicles, Smith’s vehicle blocked Daniel's path until Smith actually vacated the intersection, either by going straight through or completing a right hand turn. In these circumstances, Smith could not reasonably be found to have yielded the right of way to Daniel by slowing down and turning on his blinker. It follows that the trial court was authorized to conclude that a bona fide controversy did not clearly exist as to liability for the collision. The trial court did not err by allowing evidence of Smith's litigation expenses. Furthermore, because the evidence authorized Smith to recover litigation expenses, the trial court did not err in denying Daniel's motion for a directed verdict or in charging the jury on that claim. Daniel v. Smith, 266 Ga. App. 637 (2004) [Emphasis supplied]

The jury will be allowed to consider a Defendant’s admissions of liability and harm in deposition, despite his insistence that a bona fide controversy remains in this case. The Plaintiff lawyer needs to be mindful about keeping a good record of his time and advanced costs in the case to provide the Court a basis for awarding these litigation expenses.

Again, a Defendant’s purported dispute over damages does not prevent the jury from considering evidence of stubbornly litigious conduct under Georgia law. The Georgia Court of Appeals has found where the Defendant admits negligence but refuses to pay for the full extent of damages, a plaintiff can recover litigation expenses and attorney’s fees under O.C.G.A. § 13-6-11 for stubbornly litigious conduct. See Lamb v. R.L. Mathis Certified Dairy Company, 183 Ga. App. 455 (1987). The facts of Lamb involve an auto collision between plaintiff and defendant after which the defendant admits fault and offers to pay for some of the damages caused. 183 Ga. App. at 455. However, the defendant refused to pay for mechanical work on the engine and additional rental car fees. Id.

Despite this ‘acceptance of liability’ by the defendant in Lamb, the plaintiff was forced to file suit and made claims under O.C.G.A. § 13-6-11 because defendant refused to pay for the full extent of his damage. 183 Ga. App. at 455. There was no evidence of punitive conduct or bad faith in the actual transaction of this collision caused by the defendant in Lamb. Id. at 458. The trial court in Lamb entered a directed verdict against plaintiff on the issue of litigation expenses under O.C.G.A. § 13-6-11 removing it from the jury’s consideration. 183 Ga. App. at 455.

In reviewing the trial court’s ruling, the Court of Appeals in Lamb acknowledged that the defendant’s dispute over damages was an issue for trial: “The issue of defendant's liability for damages is uncontroverted; the only issue in this case is plaintiff's damages.” 183 Ga. App. at 458.

Despite a legitimate dispute over the value of plaintiff’s damages, the Lamb court reversed the trial court, and issued a ruling that permitted the jury to consider plaintiff’s litigation expense claims under O.C.G.A. § 13-6-11:

However, plaintiff may recover attorney fees and expenses of litigation if the facts show defendant acted in bad faith in denying plaintiff's additional claims or was stubbornly litigious. Pursuant to Division 1, 3 and 4, issues of fact for the jury are presented in regard to certain of the plaintiff's claims. Whether defendant has acted in bad faith or has been stubbornly litigious in denying those claims is an issue for jury determination. OCGA § 13-6-11. Therefore, the trial court erred in directing a verdict in favor of defendant in regard to plaintiff's claim for expenses of litigation. Lamb, 183 Ga. App. at 458. [Emphasis supplied]

The Defendant cannot just adopt a ‘so sue me’ mentality without repercussions.

Additionally, this remedy is not limited in scope to conduct before litigation has commenced. Evidence of conduct during negotiations and litigation, and other tactics of Defendant are admissible to demonstrate the stubborn litigiousness claims under O.C.G.A. § 13-6-11. In U-Haul of Western Ga. v. Ford, the plaintiff was not alleging bad faith in the act of causing the wreck, but rather stubborn litigiousness following the tort that resulted in unnecessary expense and fees. 171 Ga.App. at 746. In reviewing these decisions, the Georgia Court of Appeals found:

Accordingly, U-Haul Co. of Western Ga., like Buffalo Cab Co., is merely a decision which holds that certain evidence of the defendant's so-called "bad faith" occurring after a cause of action in tort arises may be admissible to demonstrate that he caused the plaintiff unnecessary trouble and expense.

It is important for the Plaintiff’s lawyer to create a timeline of all of the stubbornly litigious conduct of the defense to illuminate to the Court. Maintain a separate file for all ‘SLUTE’ evidence or facts demonstrating the type of conduct that is sanctionable under O.C.G.A. § 13-6-11

The scorched earth, ‘win at all cost’ mentality is poisoning the practice of law. Time and again, “Deny, delay & don’t pay” has been a consistent defense strategy in many clear liability wreck cases. Illuminate to the Court when there is no bona fide controversy as to liability. If a Defendant has simply adopted a “so sue me” position, and then litigated a case to death for months or years at direct additional costs to the Plaintiff, there are consequences. Hold them accountable in your next case.