Raford and Virginia Horton filed this personal injury action in the Superior Court of Telfair County against Joseph Dennis, The Putnam Group, LLC, Horton Iron Works, LLC, and Horton Iron Works’ liability insurer (collectively, “the appellees”). On the eve of trial, the Hortons added a claim for attorney fees under OCGA § 13-6-11, alleging that, by denying liability until the eve of trial and then stipulating to liability and going to trial on damages only, the appellees had been stubbornly litigious and caused them unnecessary trouble and expense. The appellees
Viewed in the light most favorable to the Hortons as the nonmovants,
On June 8, 2009, the Hortons filed suit for Mr. Horton’s personal injury and Mrs. Horton’s loss of consortium. During discovery, the appellees interviewed and deposed witnesses to determine whether Mr. Horton had been at fault in causing the wreck. In addition, the appellees explored during discovery the nature and extent of Mr. Horton’s alleged damages. Among other witnesses, the Hortons took the depositions for use at trial of two of his treating physicians: Alan Harben, M.D., a rehabilitation specialist, who opined that Mr. Horton suffered a traumatic brain injury and had some resulting cognitive impairment; and Walter Wilifong, M.D., a urologist, who opined that Mr. Horton suffered a pelvic nerve injury which caused him to be impotent.
The appellees questioned Dr. Harben about the medical evidence linking the trauma from the accident to any cognitive impairment, and Dr. Harben answered that no intracranial bleeding or other physical signs of brain trauma were evident on brain scans that were done in the immediate aftermath of the wreck. The deposition of Dr. Harben also showed that his opinion that Mr. Horton was experiencing cognitive deficits was based largely on logic and memory tests; because Mr. Horton had not completed such tests before the wreck, Dr. Harben could not objectively compare Mr. Horton’s cognitive function before the wreck and after the wreck. Dr. Harben conceded that certain lesions and abnormalities detected in brain scans that were performed several months after the wreck could not reliably be attributed to the wreck and could have been age related (Mr. Horton was 60 years old at the time of the wreck and 62 at the time Dr. Harben tested his cognitive functions).
The appellees questioned Dr. Wilifong about the extent of Mr. Horton’s erectile dysfunction. Dr. Wilifong answered that his opinion that Mr. Horton suffered from erectile dysfunction was based on Mr. Horton’s statement that after the wreck he and his wife had sexual relations only once per month (compared to once or twice per week before the wreck) and that he had trouble having erections. Because pelvic crush injuries often cause impotence, Dr. Wilifong assumed that Mr. Horton’s erectile difficulties stemmed from the wreck, and he focused on treating Mr. Horton’s self-reported erectile dysfunction and not on finding its cause. Dr. Wilifong conceded that Mr. Horton’s sexual problems could be caused by something other than a nerve injury. In addition, Dr. Wilifong conceded that, if Mr. Horton were able to get a normal erection at all, even if less frequently, it would show that his pelvic nerves were intact, but Dr. Wilifong could
Just before trial was scheduled to commence on September 26, 2011, the appellees opted to stipulate to “liability,” that is, their “fault for how this accident happened” and “responsibility for the accident.” The appellees also conceded that the wreck proximately caused Mr. Horton’s crushed pelvis, injuries to his left knee and left hip, and foot drop. The appellees contested, however, that the wreck was the proximate cause of Mr. Horton’s alleged traumatic brain injury or his alleged pelvic nerve damage and permanent loss of erectile function.
With the trial court’s permission, the Hortons amended their complaint to add a claim for attorney fees under OCGA § 13-6-11, alleging that the appellees had been stubbornly litigious and had caused the Hortons unnecessary trouble and expense. Specifically, the Hortons alleged that “[n]o bona fide controversy or dispute [had] ever existed in this case as to the fault of... Dennis in causing [the] collision” and as to the other appellees’ liability for Dennis’s actions. The Hortons alleged that the appellees were stubbornly litigious from the time they answered the Hortons’ complaint, denying any liability, until September 26, 2011, when the appellees admitted in a written stipulation that Dennis was at fault for negligently causing the collision. The trial court bifurcated the trial, reserving the issue of attorney fees to the second phase.
At the conclusion of the first phase of the trial, the jury returned a verdict in favor of the Hortons as follows: $1,252,804 for Mr. Horton’s medical bills, $184,010 for past and future lost income, $1,150,000 for past and future mental and physical pain and suffering, and $250,000 for Mrs. Horton’s loss of consortium. The trial court then took up the appellees’ pending motion for judgment as a matter of law on the Hortons’ claim for attorney fees. At the hearing, the Hortons stipulated that there had been “a bona fide controversy as to some of [Mr. Horton’s] damages.”
The Hortons contend that the trial court erred in finding as a matter of law that a bona fide controversy existed on proximate cause. Further, the Hortons contend that, even if there was a dispute on proximate cause as to some of the Hortons’ damages, the appellees’ denial of liability through two years of litigation was not justified.
“Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.” (Citation omitted.) Moon v. Moon,
of the provision of our Constitution that “[n]o person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const, of 1983, Art. I, Sec. I, Par. XII. This is a privilege granted to the defendant as well as the plaintiff. Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.
(Citation and punctuation omitted.) Anderson v. Cayes,
One such statutory provision is OCGA § 13-6-11, which authorizes the finder of fact to make an award of attorney fees and other expenses of litigation where (1) the plaintiff specially pleads and prays for such an award, and (2) the finder of fact finds that the defendant acted in bad faith in the underlying transaction or that, after the transaction on which the cause of action is predicated, the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense. When bad faith is not an issue, as in this case,
Although whether a bona fide controversy exists is normally a question for the jury to decide, we have also repeatedly held that, if a bona fide controversy clearly exists between the parties, there is not “any evidence” to support an award based on stubborn litigiousness or the causing of unnecessary trouble and expense. Driggers v. Campbell,
In this case, the record shows that a bona fide controversy between the parties clearly existed throughout the litigation. As detailed above, the appellees cross-examined the Hortons’ experts and elicited testimony that was consistent with defending against Mr. Horton’s claims for damages flowing from his alleged brain injury and erectile dysfunction. The appellees also argued to the jury that the Hortons failed to prove that, as a result of the wreck, Mr. Horton suffered a traumatic brain injury or any pelvic nerve injury related to erectile dysfunction and, therefore, that the jury should not award damages based on those alleged injuries. Thus, the record contains evidence that the appellees genuinely disputed, in addition to the amount of the Hortons’ damages, the issue of the proximate cause of certain injuries that the Hortons attributed to the wreck. In addition, the record contains no evidence that the appellees forced the Hortons to resort to litigation or caused them unnecessary trouble and expense in the absence of such a dispute. We conclude, therefore, that the trial court did not err in refusing to submit the Hortons’ claim under OCGA § 13-6-11 to the jury. French v. Dilleshaw,
Judgment affirmed.
Notes
A directed verdict is authorized “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” OCGA § 9-11-50 (a). “But where any evidence or some evidence exists to support a jury issue on the [nonmovantj’s claims, a directed verdict is improper.” (Citation and punctuation omitted.) Sun Nurseries v. Lake Erma,
In addition, when the court considered certain evidentiary matters during trial, the Hortons’ counsel expressly acknowledged on the record that the appellees were denying that some of Mr. Horton’s claimed injuries, “specifically areas of traumatic brain injury and damage to the pudendal nerve that allows sexual function,” were “connected” to the wreck.
See Brown v. Baker,
See Monroe v. Taylor,
See Haarhoff v. Jefferson at Perimeter, L.P.,
See also White v. Scott,
See also White v. Scott,
But see Covington Square Assocs. v. Ingles Markets,
Cf. Universal Underwriters Group v. Southern Guar. Ins. Co.,