The Cost of the Frivolous Defense – by McLaine Merrick

Gwinnett County, Georgia is known as a moderate venue. Conservative on some days. I’ve seen $100,000 in medical bills render a $2,000 verdict. This week though, the jury shocked me. Our firm was helping in a defense as Underinsured Motorist carrier in a case (Harry v. Matasic) with $50,000 in medical bills and an estimate for a $150,000 surgery. The plaintiff was a Caucasian woman in her 50’s who lost most of her muscle function in her left hand. The jury returned a verdict for $1,200,000. Surprising. Just another lesson in juries being surprising, but that’s not the thing to be learned here.

From the beginning of the case, the Liability Carrier and the Defendant took a hard stance against the plaintiff’s alleged injuries. The defense answered the complaint and admissions in the negative. They denied causing the accident. They denied the plaintiff being injured. They denied anything having to do with the defendant’s causing the plaintiff any injury in any form. Then the trial came. In opening, the defense admitted to causing the accident and admitted to the plaintiff being injured but questioned the extent of the injuries. Plaintiff’s counsel had submitted all the pleadings into evidence, including the admissions and denials from the defendant. So when the verdict was entered, counsel immediately requested the court to hold a hearing on attorney’s fees under O.C.G.A. 9-11-68(e).

9-11-68(e) – “Upon motion by the prevailing party 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.” Plaintiff’s counsel argued the defense presented a frivolous defense throughout the case denying the plaintiff was even injured in the accident. The jury did not appreciate the defense’s approach, and with only 10 minutes of deliberating, a $506,000 award was returned on top of the $1.2 Million already awarded.

This part of the statute has not been used often. The judge presiding admitted to it being an area of law she was not comfortable with and all but told the defense to appeal in open court. There is currently no case law on this issue either. Two things you can be sure of though moving forward: (1) Plaintiff’s counsel will be using this tool more going forward (the case was in the Daily Report); and (2) Defense strategy needs to include the impact of the pleadings and the potential for attorneys fees to be awarded. As this issue is used more and more, we expect the cases to hit the appellate courts and hopefully the Georgia Supreme Court soon, but until then, be ready to be surprised of the 68(e) motion following a verdict if obvious claims are denied by the defense.