Yesterday, John Hadden and Kevin Ketner submitted a brief to the Georgia Supreme Court on behalf of the Georgia Trial Lawyers Association. The issue involved whether a defendant’s traffic violations could serve as a basis for an award of attorneys’ fees. The case is Love v. McKnight, Georgia Supreme Court Case No. S24G0371.
Under Georgia law, in civil lawsuits, the parties are generally responsible for payment of their own attorneys’ fees and costs. In some cases, however, the law permits a party to seek recovery of those expenses from an opponent. One circumstance is established under the Georgia Code by OCGA § 13-6-11. That section states that
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.
OCGA § 13-6-11
How the Case Reached the Supreme Court
In this case, the plaintiff, McKnight, argued that because the defendant, Love, had pled guilty to the charge of following too closely (in violation of OCGA § 40-6-49) and had also been talking on his cell phone and was distracted at the time of the rear-end collision (in violation of OCGA § 40-6-241), a jury should be entitled to award attorneys fees to McKnight because of Love’s “bad faith” in the underlying incident. Love, on the other hand, argued that mere negligence is not sufficient to constitute bad faith. Both the trial court and the Georgia Court of Appeals agreed with the plaintiff that a jury should consider this evidence and could award attorneys’ fees and costs of litigation under these facts. The Supreme Court granted the writ of certiorari to further consider the case.
On behalf of the Georgia Trial Lawyers Association, John and Kevin argued that the evidence was sufficient to support a jury’s conclusion that Love had acted “recklessly,” and this was sufficient to support an award of expenses under OCGA § 13-6-11. The brief relied on a number of prior Georgia Supreme Court and Court of Appeals cases, as well as statutory principles, in support of this argument.
The amicus brief is available here. The case is set for oral argument on August 21 at the Nathan Deal Judicial Center in Atlanta.