Monday, June 20, 2005

A Soft Tissue Verdict in Georgia

Attorney Joan Crumpler finished a two day trial Friday on a soft tissue injury case in Gwinnett County, Georgia. The county is known as a conservative, mostly white GOP leaning jurisdiction.

Here are the facts: Low property damage, Progressive Insurance company for the defense. The result: A six person jury awarded $10,000 to the Plaintiff and $23,500 for attys fees/expenses under O.C.G.A. Sec. 13-6-11, for soft tissue injury claim with $4,000 in meds. Retired Judge Gene Reeves was sitting for Judge Rich. Insurer was defended by in house captive counsel Shur, McDuffie. The Defendant's last offer was $7500. Jury was out for over an hour with 1 hold-out juror -- she wanted to pay more.
The $7500 offer was made on the eve of trial after the adjuster got served with a subpoena to appear at trial.

Here is the statute:

O.C.G.A. §13-6-11. Recovery of expenses of litigation generally.

The 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.

The Georgia rule, though complex, may be simply stated as follows:

Each litigant bears its own litigation expenses unless the defendant has acted badly and the plaintiff wins, in which case, the defendant must bear the litigation expenses.

The true focus of the Georgia exception is to punish a defendant who has acted in bad faith by having to pay the other side's attorney's fees. Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 241 (1971). In all cases where a litigant seeks to recover attorney’s fees and expenses of litigation, a litigant must establish a legal basis for the claim. The legal basis may arise out of statute or contract. While statutory exceptions to Georgia’s general rule for attorney's fees exist under many other statutes, this paper focuses on the general rule expressed in O.C.G.A. §13-6-11.

The Code section has a general rule and an exception, four operative requirements to trigger the exception, and three clauses describing the conduct of the defendant that triggers the exception:

  1. [General Rule] Each litigant bears its own expenses
  2. [Exception] Unless:

1. [Operative Rule 1] "Plaintiff has specially pleaded"

2. [Operative Rule 2] "Plaintiff has made prayer therefor"

3. [Operative Rule 3] "The defendant has acted"

a. [Conduct clause 1] "in bad faith in making the contract"

b. [Conduct clause 2] "has been stubbornly litigious, or"

c. [Conduct clause 3] "has caused the plaintiff unnecessary trouble and expense"

4. [Operative Rule 4] "the jury may allow them:"