Statutory litigation expenses in Georgia trucking cases

Expenses of litigation as damages under O.C.G.A. 13-6-11

Section 13-6-11 opens with a general bar that reaches truck accident claims as it reaches other claims: expenses of litigation shall not be allowed as part of the damages unless the conditions that follow in the same sentence of the section are met. The pleading condition is that the plaintiff "has specially pleaded and has made prayer therefor." The conduct condition is that the defendant, whether a truck driver or another party, "has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense." When the special plea and prayer are present and the defendant has engaged in that conduct, Section 13-6-11 provides that the jury may allow the expenses in a truck crash suit or other case.^[1]

For a truck accident plaintiff, Section 13-6-11 ties any jury allowance of litigation expenses to the special plea and prayer, together with defendant conduct such as bad faith or the other conduct the section lists. The official code hierarchy places Section 13-6-11 in Title 13, Contracts, within Chapter 6, Damages and Costs Generally, a chapter that spans Section 13-6-1 through Section 13-6-15. Within that chapter, Section 13-6-11 carries the heading "Recovery of expenses of litigation generally."^[1]

Fees for frivolous claims and defenses under O.C.G.A. 9-15-14(a) to (c)

Section 9-15-14 reaches any civil action in any court of record of this state, including a truck crash suit pending in such a court, subject to Section 9-15-14(h), which excludes proceedings in magistrate courts but permits an appellee to pursue expenses incurred below where an appeal from such a court lacks substantial justification. Under Section 9-15-14(a), any party, including a truck driver named in a suit, against whom another party asserted a position with such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept it receives reasonable and necessary attorney's fees and expenses of litigation. The subsection states that these "shall be awarded," which makes the award mandatory in a truck accident case, as elsewhere, once that condition is met. In a truck crash case, subsection (a) directs that the award be assessed "against the party asserting such claim, defense, or other position, or against that party's attorney, or against both in such manner as is just."^[3]

Under Section 9-15-14(b), the award is discretionary, since the court "may assess" fees and expenses of litigation, upon the motion of any party or the court itself, if it finds that an attorney or party brought or defended an action, such as a truck accident action, or any part of one, that lacked substantial justification or was interposed for delay or harassment. Subsection (b) also applies where an attorney or party, including truck drivers who are parties, unnecessarily expanded the proceeding by other improper conduct, including abuses of discovery procedures available under Chapter 11 of Title 9, the Georgia Civil Practice Act. As used in Section 9-15-14, the phrase lacked substantial justification "means substantially frivolous, substantially groundless, or substantially vexatious." Under Section 9-15-14(c), no attorney or party, including a party in truck crash litigation, is assessed attorney's fees for a claim or defense that the court determines was asserted in a good faith attempt to establish a new theory of law in Georgia, if that new theory of law is based on some recognized precedential or persuasive authority. In a truck accident case heard in a magistrate court, Section 9-15-14(h) makes the section inapplicable, although an appellee may seek litigation expenses from the proceedings below if the appeal taken from that court is without substantial justification.^[3]

Amount, timing and magistrate court limits in O.C.G.A. 9-15-14(d) to (h)

Section 9-15-14(d) provides that attorney's fees and expenses of litigation awarded under the section, including in a truck accident case, shall not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party. The same subsection allows the court to assess the fees and expenses incurred in obtaining an order under the section and to include them in its order. Under Section 9-15-14(e), a request for these fees and expenses may be made by motion at any time during the course of the action but not later than 45 days after the final disposition of the action. A party in a truck crash suit seeking an award under this section faces that motion deadline. The limits in subsections (d) and (e) operate subject to Section 9-15-14(h), under which the section does not apply to magistrate court proceedings, though an appellee in a case appealed from that court may seek expenses incurred below if the appeal lacks substantial justification.^[3]

Under Section 9-15-14(f), the court determines an award of reasonable and necessary attorney's fees or expenses of litigation in a truck crash suit without a jury and makes it by an order that "shall constitute and be enforceable as a money judgment." Under Section 9-15-14(g), fees and expenses awarded under the section in a prior action between the same parties, such as parties to an earlier truck accident suit, are treated as court costs with regard to the filing of any subsequent action. Section 9-15-14(h) states that the section "shall not apply to proceedings in magistrate courts," but when a case is appealed from the magistrate court, the appellee may seek litigation expenses incurred below if the appeal lacks substantial justification. By contrast with the jury allowance in Section 13-6-11, awards to truck crash litigants under Section 9-15-14(f) are decided by the court. The official code hierarchy places Section 9-15-14 in Title 9, Civil Practice, within Chapter 15, Court and Litigation Costs, which spans Section 9-15-1 through Section 9-15-16.^[3][1]

Offers of settlement in tort claims under O.C.G.A. 9-11-68(a) to (d)

Section 9-11-68(a) allows either party, including a truck driver named as a party, to serve upon the other party a written offer, denominated as an offer under the section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly. The offer may be served in truck accident litigation at any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days before trial, or not less than 20 days before trial if it is a counteroffer. The offer is served on the other party, including truck drivers who are parties, but shall not be filed with the court. In a truck crash suit, the procedure reaches an offer made "to settle a tort claim" on these terms.^[2]

Section 9-11-68(a) requires that any offer in a truck accident case be in writing and state that it is being made pursuant to the section. The offer identifies the party or parties making the proposal, such as a truck driver, and the party or parties to whom it is made, and it identifies generally the claim or claims it is attempting to resolve. It states with particularity any relevant conditions, and it states the total amount of the proposal. It also states with particularity the amount proposed to settle a claim for punitive damages, if any, and states whether the proposal includes attorney's fees or other expenses and whether those fees or expenses are part of the legal claim. Finally, the offer is required to "Include a certificate of service and be served by certified mail or statutory overnight delivery in the form required by Code Section 9-11-5."^[2]

Under Section 9-11-68(b)(1), if a defendant, such as a truck driver, makes an offer of settlement which is rejected by the plaintiff, the defendant is entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection through the entry of judgment, if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer. Under Section 9-11-68(b)(2), if a plaintiff injured in a truck crash makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer, the plaintiff is entitled to recover reasonable attorney's fees and expenses of litigation incurred by the plaintiff or on the plaintiff's behalf from the date of the rejection through the entry of judgment. In a truck accident suit, which comparison applies depends on whether the offer that was rejected came from the plaintiff or the defendant.^[2]

Under Section 9-11-68(c), any offer in a truck accident case remains open for 30 days unless sooner withdrawn by a writing served on the offeree prior to acceptance. An offeror is not entitled to attorney's fees and costs under subsection (b) to the extent an offer is not open for at least 30 days, unless it is rejected during that 30 day period. A counteroffer from a truck driver or other party is deemed a rejection, but it may serve as an offer under the section if it is specifically denominated as an offer under the section. Acceptance or rejection of the offer is to be in writing and served upon the offeror. An offer in truck crash litigation that is neither withdrawn nor accepted within 30 days is deemed rejected. The fact that an offer is made but not accepted does not preclude a subsequent offer. Evidence of an offer is not admissible except in proceedings to enforce a settlement or to determine reasonable attorney's fees and costs under the section. These timing and evidence rules apply to an offer served by or upon a truck driver who is a party to the tort claim, as they do for any other party.^[2]

Under Section 9-11-68(d)(1), in a truck accident suit or any other tort action, the court shall order the payment of attorney's fees and expenses of litigation upon receipt of proof that the judgment is one to which paragraph (1) or paragraph (2) of subsection (b) applies, but if an appeal is taken from that judgment, the court orders that payment only upon remittitur affirming the judgment. Under Section 9-11-68(d)(2), if a party to a truck crash suit is entitled to costs and fees under the section, the court may determine, in an order setting forth the basis for the determination, that an offer was not made in good faith, and in that case the court may disallow an award of attorney's fees and costs.^[2]

Frivolous claim determinations under O.C.G.A. 9-11-68(e)

Under Section 9-11-68(e), upon motion by the prevailing party in a truck accident suit at the time that the verdict or judgment is rendered, the moving party may request that the finder of fact determine whether the opposing party presented a frivolous claim or defense. In that event, the court holds a separate bifurcated hearing at which the finder of fact decides whether frivolous claims or defenses were asserted and awards damages, if any, against the party presenting them. Under subsection (e)(1)(A), frivolous claims include, but are not limited to, a position that lacks substantial justification or lacks good faith, along with a position "made with malice or a wrongful purpose, as those terms are defined in Code Section 51-7-80." Subsection (e)(1)(B) adds a position with such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept it, and subsection (e)(1)(C) adds a position that was interposed for delay or harassment. Under subsection (e)(2), damages awarded in truck crash litigation may include reasonable and necessary attorney's fees and expenses of litigation. Under subsection (e)(3), a party in a truck crash suit may elect to pursue either the procedure in Section 9-11-68(e) or the procedure in Code Section 9-15-14, "but not both." Section 9-15-14(h) provides that Section 9-15-14 does not reach magistrate court proceedings, though an appellee on appeal from a magistrate court may pursue litigation expenses incurred there when the appeal lacks substantial justification.^[2][3]

Enactment history of O.C.G.A. 13-6-11 and 9-15-14

The history line on the official page for Section 13-6-11 traces it to the Original Code of 1863, section 2883, and lists Code 1868, section 2891, Code 1873, section 2942, Code 1882, section 2942, Civil Code 1895, section 3796, and Civil Code 1910, section 4392. The same line lists Code 1933, section 20-1404, and ends with Ga. L. 1984, p. 22, section 13. The history line on the official page for Section 9-15-14 shows that Code 1981, section 9-15-14 was enacted by Ga. L. 1986, p. 1591, section 1. That line then lists Ga. L. 1987, p. 397, Ga. L. 1989, p. 437, Ga. L. 1994, p. 856, Ga. L. 1997, p. 689, and Ga. L. 2001, p. 967, as later entries.^[1][3]

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)