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Truck accident trials in Georgia – attorney fee claim may be worth more than punitive damages

In trucking accident cases in Georgia, one interesting legal twist is that punitive damages are tried in the second phase of a bifurcated trial, are subject to a “clear and convincing evidence” standard and are generally capped at $250,000. But the same conduct that would support punitive damages can support an award of attorney fees and expenses of litigation pursuant to O.C.G.A. § 13-6-11 in the case in chief under the “preponderance” (greater weight) of the evidence standard. There is no cap on that claim.

Therefore, if a hypothetical plaintiff got a verdict for $5 million compensatory damages and $20 million punitive damages, the $20 million punitive damages would in almost all trucking cases be reduced to $250,000, reducing the judgment from $25 million to $5,250,000. However, with a claim for fees and expenses under OCGA Section 13-6-11, based on violation of Federal Motor Carrier Safety Regulations, the result would be a judgment for about $7 million plus expenses, rather than $5,250,000.

Evidence that appellants failed to comply with mandatory safety regulations promulgated for the benefit people in the position of the injured plaintiff is evidence that the trucking company acted in bad faith in the transaction, within the meaning of O.C.G.A. § 13-6-11. Meyer v. Trux Transp., Inc., 2006 WL 3246685 (N.D.Ga., decided Nov. 8, 2006)(FMCSA violations); Windermere, Ltd. v. Bettes, 211 Ga.App. 177 (1993)(landlord’s violation of fire exit safety regulations).

“Even slight evidence of bad faith can be enough to create an issue for the jury.” Morrison Homes of Florida, Inc. v. Wade, 266 Ga.App. 598 (2004). “The question of bad faith . . . is for the trier of fact to determine.” Monterrey Mexican Restaurant of Wise, Inc. v. Leon, 282 Ga.App. 439 (2006).

A court may allow a contingent fee agreement as evidence of usual and customary attorney fees. Southern Cellular Telecom v. Banks, 209 Ga.App. 401 (1993); Walther v. Multicraft Constr. Co., 205 Ga.App. 815, 816(3) (1992). An attorney may testify to, or state in his place, the reasonableness of his contingent attorneys fees. No magic words are required so long as the substance is addressed. Patton v. Turnage, 260 Ga.App. 744(2003).

We are waiting on a Court of Appeals ruling in a case in which last year where we got a $2.3 million judgment in a trucking case involving a broken leg. No punitive damages claim went to the jury, but we did have a claim for attorney fees and expenses of litigation based on “bad faith” conduct in violation of mandatory safety rules, specifically the Federal Motor Carrier Safety Regulations. The jury was able to use that to add one-third of compensatory damages for attorney fees, plus all of our expenses of litigation.

Ken Shigley in Atlanta, Georgia, served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved as a seminar speaker in the Interstate Trucking Litigation Group of the American Association for Justice. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, and was recently elected Secretary of the 39,000 member State Bar of Georgia. He handles trucking cases all over Georgia, from Ellijay to Thomasville, and from Buchanan to Pooler.