The Georgia Court of Appeals recently reversed the grant of summary judgment to a defendant on the issue of bad faith attorney’s fees. Nash v. Reed, A18A1707, 2019 WL 1123530 (Ga. Ct. App. Mar. 12, 2019). In so doing, the court determined that “[b]ad faith under OCGA § 13-6-11 must have arisen out of how the defendant acted in dealing with the plaintiff.”
In Nash, the plaintiff was struck by the defendant’s automobile while jogging. The defendant saw the plaintiff, knew the plaintiff was wearing headphones, and likely did not see the defendant. The defendant decided to continue past the plaintiff despite having to cross the double yellow line into oncoming traffic and decided not to honk his horn at the plaintiff. The defendant contended the plaintiff ran into his vehicle while the plaintiff claimed the defendant ran a red light. The plaintiff was cited for darting into traffic, but was later dismissed. The defendant testified that he “made an educated decision on how to avoid [the plaintiff]” and that he would have done the same thing again.
The Court pointed to the plaintiff’s allegations that the defendant knew the plaintiff did not see the defendant, could have honked his horn to alert the plaintiff, or could have stopped to allow the plaintiff to finish crossing the street. The court noted that bad faith, “pertains to the transaction…out of which the cause of action arose, not the defendant’s conduct after the cause of action arose.” Thus, the court determined the plaintiff’s allegations were sufficient to overcome summary judgment and should be determined by a jury on the issue.
If, however, the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith…, the jury may allow them. The intent of the law, as shown by the words, ‘the jury may allow them,’ is to leave the matter of expenses of litigation to the jury trying the case.
Nash, A18A1707 2019 WL 1123530 at *2 (Citations omitted.)(quoting Covington Square Assocs. V. Ingles Markets, 287 Ga. 445, 446 (696 SE2d 649) (2010); Forsyth County v. Martin, 279 Ga. 215, 219 (2) (b) (610 SE 2d 512) (2005) (“Questions concerning bad faith…are generally questions for the jury”)). NOTE: this is not a bad faith failure to settle a claim but a direct stubborn litigiousness claim.