A plaintiff whose vehicle was struck by a Krispy Kreme driver appealed a $330,000 verdict in her favor and obtained a reversal, and a chance to win an even bigger verdict, in Showan v. Pressdee, 2019 WL 1891785 (11th Cir. Apr. 29, 2019). At issue primarily was a once fairly obscure provision of the Georgia Civil Practice Act, added in “tort reform” legislation enacted in 2005. The statute, O. C. G. A. § 9-11-68(e), provides as follows:
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. In such event, the court shall hold a separate bifurcated hearing at which the finder of fact shall make a determination of whether such frivolous claims or defenses were asserted and to award damages, if any, against the party presenting such frivolous claims or defenses.
In recent years, this provision has come into vogue and been more widely invoked by successful plaintiffs who request the juries that just ruled for them to tack on attorneys’ fees.
During the Showan trial, the district court (Orinda Evans, J.) denied the plaintiff’s request to hold a post-verdict hearing on whether attorneys’ fees should be awarded under this provision, finding that the defendants had not taken a frivolous position as a matter of law. The premise for the plaintiff’s request was the defendants’ insistence prior to trial that the plaintiff had been partly culpable for the accident, a position which the defendants abandoned just before the trial began.
On appeal, in an opinion by Judge Lisa Branch, the court first addressed whether application of the state procedural rule would be precluded by Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). The court began its Erie analysis by determining whether a federal rule answers the question in dispute. The court concluded that the nearest federal rule, Rule 11, did not answer the question, because Rule 11 seeks to punish frivolous filings and deter them, while the Georgia statute is intended to compensate a party for expenses incurred in opposing frivolous or bad faith claims and defenses. The court termed the purposes of the two provisions “categorically distinct” and reasoned that § 9-11-68(e)’s application in federal court would not promote forum shopping or inequitable administration of justice.
With the Erie hurdle cleared, the court held that the district court had no discretion to decline the prevailing party’s request under § 9-11-68(e), stating that “whether [the plaintiff] demonstrated that Defendants acted frivolously is a matter for the finder of fact under Georgia law.” An entirely new trial was necessary, the court held, because the same jury is required by the statute to make the determination of frivolity.
Not addressed in the court’s opinion is the fact that the plaintiff did not appear to argue that the defendants presented a frivolous defense during the trial. Although this appears to be a question of first impression in construing § 9‑11‑68(e), the text and context of the statute indicate that the factfinder’s determination of frivolousness should be based on the case presented at trial, before the factfinder. Otherwise, the jury would be put in the awkward position of having to evaluate pretrial proceedings and pleadings, which, competency questions aside, could entail a trial longer than the underlying claim required. Pretrial filings are also subject to other Georgia sanctions provisions. And the court’s unqualified statement implying that frivolity is a jury question would seem to conflict with the federal district court’s authority to determine whether judgment as a matter of law is required on a given claim. The significance of this statement is likely to be debated in future cases.
The court also addressed several other claims of error during the trial, in view of the fact that a new trial was required. The most significant of these involved the district court’s ruling on a so-called “unit-of-time” argument by the plaintiff. At trial, the plaintiff’s counsel asked the jury to award a figure for each hour of the plaintiff’s pain, but the district court intervened to prohibit that argument, ruling that it was impermissible under Georgia law. This was error, according to the Eleventh Circuit, citing a 1966 former Fifth Circuit case. The court rejected the plaintiff’s remaining arguments concerning evidentiary points.
Posted by Tom Byrne.