By Matt Kahn
Fried & Bonder recently obtained a favorable appellate court ruling that may be helpful to injury victims litigating the issue of “bad faith” attorney’s fees in Georgia courts. See Nash v. Reed, Case No. A18A1707, 2019 WL 1123530 (Ga. Ct. App. Mar. 12, 2019).
The Nash case involved a collision between a jogger (the firm’s client) and the driver of a Chevy Tahoe. The defendant driver struck the jogger as he began to jog across the road. Although the defendant saw the jogger, and knew the jogger did not see him, he attempted to pass the jogger by crossing the double-yellow lines and driving into the oncoming lane of traffic. As the defendant attempted this illegal maneuver, he struck the jogger, causing serious injuries.
The firm filed suit on behalf of the jogger, asserting (among other causes of action) a claim for attorneys’ fees under Code Section 13-6-11. Under that Code Section, a plaintiff may seek his or her attorney’s fees and litigation expenses if a defendant has “acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” O.C.G.A. § 13-6-11 (emphasis added).
The issue in Nash was the defendant’s alleged “bad faith.” Under Georgia law, “bad faith” refers to how the defendant treated the plaintiff during the transaction at issue. That is, “bad faith” describes the defendant’s behavior during the transaction out of which the lawsuit arose; it does not describe the behavior of the defendant, the defendant’s insurer, or his legal counsel during the lawsuit—a common misconception.
In Nash, the defendant moved for summary judgment on the jogger’s attorneys’ fees claim. The defendant argued that the wreck was accidental and, therefore, the jogger could not demonstrate that the defendant acted with the requisite “bad faith.” In response, we argued, on the jogger’s behalf, that the defendant knowingly violated a law enacted to protect motorists and pedestrians and that this knowing violation, as well as defendant’s other conduct, sufficed to send the issue of “bad faith” to the jury. This argument was supported by defendant’s admission that he knowingly broke the law, would so again if given a second chance, and that he decided against honking at the jogger to alert him to his vehicle’s presence.
The trial court initially granted defendant’s motion for summary judgment, however, the Court of Appeals reversed. The appellate court rejected defendant’s argument that only intentional conduct, not accidental conduct, can support a claim for “bad faith” attorneys’ fees under Code Section 13-6-11. The court held that no Georgia authority “limits the recovery of bad faith attorney fees to intentional torts.” The appellate court also agreed that defendant’s knowing violation, taken together with the other evidence, sufficed to send the issue of bad faith attorney’s fees to the jury. The court noted that “[i]ndicative of whether a party acts in good or bad faith in a given transaction is his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter’s legal rights.”
While the holding of Nash is fact-specific, it does provide a useful roadmap for surviving the attempted dismissal of bad-faith attorneys’ fees claims—particularly in injury cases involving traffic citations or other legal violations. First, a plaintiff should plead specific facts in his/her complaint which support a claim for bad faith attorney’s fees. For example, instead of simply alleging the elements of the cause of action under Code Section 13-6-11—e.g., “plaintiff is entitled to attorneys’ fees under O.C.G.A. § 13-6-11 because the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense”—plaintiff ought to consider alleging something more like this:
Under Georgia law, a plaintiff is entitled to the expenses of litigation where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. O.C.G.A. § 13-6-11
Here, Defendant has acted in bad faith within the meaning of O.C.G.A. § 13-6-11. Specifically, Defendant violated the Georgia Uniform Rules of the Road by, inter alia, following too closely in violation of O.C.G.A. § 40-6-49. That Code Section, and the Rules of the Road generally, exist to protect other motorists, including Plaintiff. Accordingly, Plaintiff is entitled to recover all reasonable attorney’s fees incurred in pursuing this action in accordance with O.C.G.A. § 13-6-11.
Next, a plaintiff should develop testimony that the defendant knew of the law he/she violated and knowingly broke it. If, for example, the defendant was cited for speeding, testimony that the defendant knew the speed limit and knowingly exceeded it would support a finding of bad faith. So too would admissions that speed limits exist for the safety of drivers and fellow motorists.
Under the authority of Nash v. Reed, and the cases relied upon by the Court of Appeals, evidence of this type should help defeat dispositive motions aimed at a plaintiff’s bad-faith attorneys’ fees claim and enable the plaintiff to present that claim to the jury.
We are happy to share our trial court and appellate court briefing from the Nash case on this issue. Feel free to send a message to firstname.lastname@example.org.