Doubling Down: Supreme Court of Georgia Allows for Seemingly Double Recovery of Attorney's Fees
| Publication year | 2023 |
Doubling Down: Supreme Court of Georgia Allows for Seemingly Double Recovery of Attorney's Fees
Katie Anderson
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Never settle. Good words to live by, unless you are a civil defendant living in the state of Georgia. Following the Supreme Court of Georgia's decision in Junior v. Graham,1 defendants in civil actions might have more of an incentive to settle their cases after the court allowed for a seemingly double recovery of attorney's fees.2
Georgia courts have consistently upheld the public policy of barring double recovery.3 Damages in civil actions are intended to make a plaintiff whole, not punish a defendant.4 However, in Junior, the court held that two statutory provisions, despite their similar measure of damages, did not constitute an impermissible double recovery.5 Going forward, defendants could be charged with double fees if they are found liable under both statutes.6
As one of the first cases allowing for a plaintiff to recover attorney's fees under two separate statutes, Junior creates a danger for defendants who choose not to settle on their good faith belief that they are not liable
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and creates a benefit for plaintiffs who make a good faith effort to settle and are forced through frivolous litigation.7
The plaintiff, Joao Junior (Junior) brought an action against the defendant, Sharon Graham (Graham) to recover damages based on injuries sustained in a car accident in 2010.8 On December 13, 2013, Junior served upon Graham a Plaintiff's Offer to Settle a Tort Claim for $600,000.9 Graham, however, failed to respond to the offer and thus, the offer was deemed rejected.10
Following a trial, on September 11, 2019, nunc pro tunc, August 12, 2019,11 Junior recovered $4,979,066.87 on his claims.12 The jury awarded $1,251,554.95 of that final judgment for attorney's fees and expenses under Official Code of Georgia Annotated section 13-6-1113 for bad faith conduct.14 Junior then moved for recovery of attorney's fees under O.C.G.A. § 9-11-68(b)(2).15 The basis for this recovery was Graham's failure to accept the settlement offer. The trial court denied this motion finding that the recovery under O.C.G.A. § 13-6-11 barred further award.16 The court reasoned that despite the two code sections contemplating damages based on different conduct, the total of attorney's fees and litigation expenses was incurred "as to the same cause of action
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against the same defendant."17 Thus finding that awarding fees under O.C.G.A. § 9-11-68(b)(2) would constitute an impermissible double-recovery.18
Junior appealed this action contending that the language of O.C.G.A. § 9-11-68(b)(2) is "clear and unambiguous" and requires an award against Graham for her refusal of the settlement offer.19 The Court of Appeals of Georgia also barred Junior's recovery under O.C.G.A. § 9-11-68(b)(2) but for different reasons than the trial court.20 While it rejected the position that allowing for this recovery would constitute an impermissible double recovery, the court of appeals based its decision on the grounds that Junior was not entitled to recovery under O.C.G.A. § 9-11-68(b)(2). Junior, the court of appeals held, had no uncovered fees to which the sanction would be applied after receiving the award under O.C.G.A. § 13-6-11.21 The court of appeals determined that Junior did not incur these fees and affirmed the decision of the trial court.22
The Supreme Court of Georgia granted Junior's petition for writ of certiorari to consider whether O.C.G.A. § 9-11-68(b)(2) requires a set-off or deduction in award issued by the jury in the trial court.23 Contrary to the lower courts, the Supreme Court of Georgia held that these statutes do not require any set-off as they address different conduct from the defendant.24 Despite the use of similar measures to calculate the damages, both based on attorney's fees and litigation expenses, the court held that it did not constitute a double recovery.25
A. Public policy barring double recovery
Historically, courts have awarded damages as an effort to put the plaintiff in the position they were pre-tort.26 Similarly, courts try to avoid punishment using damages in breach of contract disputes.27 Windfalls for the plaintiff are frowned upon. Naturally, it is public policy that the
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plaintiffs are not able to "double recover" and for the court to award them damages that make them whole.28
1. Georgia's consistency of upholding this public policy
As part of its common law and public policy, Georgia has always barred plaintiffs from double recovery.29 A plaintiff is only entitled to one satisfaction of damages because the purpose is "to make the plaintiff whole," not to promote a windfall or punish a defendant.30 In Georgia Northeastern Railroad Inc., v. Lusk,31 the Supreme Court of Georgia examined whether the damages awarded constituted a double-recovery.32 Lusk was awarded $5,400, which was approximately 60% of the estimated value of his property by acre. This appeared to be an award of the usable acreage that Lusk irreparably lost. Additionally, the jury awarded $182,755 to restore the riverbank which had been eroded. The Supreme Court of Georgia, however, disagreed that this additional award of damages was needed to restore Lusk to his pre-tort condition.33 The Supreme Court of Georgia placed emphasis on the public policy of the state to prevent double recovery by plaintiffs, and the measure of damages in these cases of this manner are intended to place an injured party in the position they would have been had the injury never occurred.34
The Court of Appeals of Georgia has also held that the mere existence of alternative recovery does not give plaintiffs the entitlement to "take judgment" under both theories.35 In Marvin Nix Development Company et al. v. United Community Bank,36 the court held that recovery under a promissory note and for conversion of collateral constituted double recovery under alternative remedies.37 While a party can pursue inconsistent remedies, this does not open the door to double recovery of
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the same damages for the same wrong.38 A party is only entitled to "one satisfaction of the same damages, in either contract or tort."39
In Ingles Market, Inc. v. Kempler,40 the Court of Appeals of Georgia held that the jury's award of damages for both nuisance and negligence did not constitute an impermissible double recovery.41 The court acknowledged it is public policy to prohibit double recovery for the plaintiffs and that each plaintiff is only entitled to one satisfaction.42 The court held that the award of damages was not duplicate in nature and that the damages in the nuisance claim were not reflected in the damages in the negligence claim.43 The jury, the court held, was entitled to "award additional general damages based on the parties' negligence within its 'enlightened conscience' and based on the testimony presented at trial."44 The court in its decision did not back down on the enforcement of the public policy barring double recovery, it just interpreted the award of damages to be one satisfaction.45
The Supreme Court of Georgia held in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt46 that the determination of damages lies "peculiarly within the province of the jury."47 This is because damages are typically considered an issue of fact and therefore are left up to the jury.48 The court thus determined that the right to a jury trial also includes the right to have a jury determine damages.49
The policy extends past tort law and into breach of contract claims according to Roofers Edge, Inc. v. Standard Building Company, Inc.,50 where the court denied the plaintiff's request for attorney's fees under O.C.G.A. § 9-15-1451 when they had already been awarded attorney's fees under O.C.G.A. § 13-6-11.52 The court held that any further award of
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attorney's fees would constitute an impermissible double recovery for the plaintiff.53
2. Public policy in other circuits
The Supreme Court of the United States has also extended this public policy denying double recovery.54 The Court held that a fee award may go no farther than "to redress the wronged party 'for losses sustained.'"55 It further held that the damages awarded may not impose punishment as an additional amount for the sanctioned party's misbehavior.56 To have such a separate penalty, a court would need to provide "procedural guarantees applicable in criminal cases."57 When those criminal-type protections—such as a "beyond a reasonable doubt" standard of proof—are missing, a court's shifting of fees is limited to reimbursing the victim.58 The Court held that a plaintiff cannot be made more than whole.59
The United States Court of Appeals for the Ninth Circuit in Corder v. Brown60 also upheld this public policy.61 The court held that the plaintiff cannot be awarded a windfall.62 The plaintiff, in this case, had already received damages in a settlement. The defendants argued that the attorney's fees must be offset by this amount awarded or the plaintiff would be awarded an improper windfall.63
When determining whether a plaintiff has received an impermissible double recovery, the court will look to the statutes the parties are attempting to recover under.
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B. Court's statutory analysis
1. Emphasis on context
Georgia courts rely heavily on context when interpreting statutory provisions.64 In Deal v. Coleman,65 the Supreme Court of Georgia held that statutory text is to be read by courts in the most natural and reasonable way.66 It should, they explain, be read "as an ordinary speaker of the English language would."67 Both the common and customary usage and context of words are important to the court when analyzing statutes. To gain context; courts may look to other provisions of...
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