Georgia “Loser Pays” Rule #3 – Fee Awards for No Justiciable Issue, Delay or Harassment

Advocates of tort reform often call for “loser pays” legislation. Georgia already has five different “loser pays” rules. In earlier posts I have discussed OCGA § 9-11-68, enacted as part of tort reform legislation in 2005, which includes both the offer of judgment / offer of settlement rule and the frivolous claims and defenses rule.

O.C.G.A. § 9-15-14, enacted in 1986, provides for a motion for award of fees and expenses against a party that had asserted a claim or defense “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures.”

This covers any “claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.”

However, this does not apply if the court determines the claim or defense was asserted in a good faith attempt to establish a new theory of law in Georgia if the new theory is based on recognized precedential or persuasive authority.

A motion under this statute may be filed at any time up until 45 days after final disposition of the action.

While the person against whom this claim is made must be given notice of the right and opportunity to confront and challenge the value and the need for the legal services claimed, no actual hearing is required if no response is submitted. Tavakolian v. Agio Corp., 304 Ga. App. 660, 697 S.E.2d 233 (2010).

The procedure does not apply in magistrate courts, but does apply in appeals from magistrate courts.

See summary post, “Does Georgia need more than five ‘loser pays’ rules?”

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle). In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.