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Love v. McKnight, No. S24G0371, 2025 WL 676631 (Ga. Mar. 4, 2025)
#civil litigation #OCGA § 13-6-11 #traffic violations and bad faith #frivolous litigation #the personal injury lottery

Summary
Early in the morning of November 13, 2019, both McKnight and Love were traveling in stop-and-go traffic on Interstate 20 in DeKalb County, Georgia. McKnight was driving his 2011 Chevrolet Silverado truck, and Love followed closely behind him in a 2007 Chevrolet Tahoe. As the two drove along Interstate 20, traffic slowed ahead, and McKnight applied his brakes and stopped his vehicle, but Love forcefully hit McKnight from behind. Just prior to impact, McKnight peered into his rearview mirror and saw that Love would be unable to stop. Although McKnight could not see Love inside of the vehicle, he believed Love was distracted because he was "coming pretty fast" when other vehicles had already stopped. There is evidence that in the 20 minutes Love spent driving that morning, he continuously made and received phone calls on his cell phone.

McKnight's truck was damaged, and he sustained injuries to his back and knee, which required a hospital visit and subsequent medical care. Love was cited by police for following too closely and later pleaded guilty to that offense.

McKnight sued Love, seeking compensatory damages, punitive damages, and litigation expenses under OCGA § 13-6-11, alleging bad faith. Love moved for partial summary judgment on the bad faith claim, which the trial court denied, finding a jury question based on Love’s cell phone use and perceived distraction. The Court of Appeals affirmed, citing Love’s traffic violation as sufficient evidence of bad faith. The Supreme Court of Georgia reversed the judgment of the Court of Appeals, holding that "bad faith" under OCGA § 13-6-11 requires more than negligence. Bad faith involves intentional misconduct, reckless disregard, or conscious indifference to consequences—conduct akin to that supporting punitive damages—not mere violations of strict liability traffic laws.

Opinion
Boggs, Chief Justice.

We granted certiorari in this case to consider the Court of Appeals's determination that evidence of a party's violations of traffic laws is sufficient to create a jury question as to whether that party acted in bad faith for purposes of authorizing an award of expenses of litigation under OCGA § 13-6-11. [1] See McKnight v. Love, 369 Ga. App. 812, 822-824, 894 S.E.2d 110 (2023). We determine that the Court of Appeals's analysis is inconsistent with the proper interpretation of “bad faith” under OCGA § 13-6-11 and that applying the correct standard, there was insufficient evidence of bad faith to submit the issue to the jury. Accordingly, we reverse.

1. John McKnight filed a lawsuit against Anthony Love seeking damages arising out of a vehicular accident. The facts, as set forth by the Court of Appeals, are as follows:

[E]arly in the morning of November 13, 2019, both McKnight and Love were traveling in stop-and-go traffic on I-20 in DeKalb County. McKnight was driving his 2011 Chevrolet Silverado truck, and Love followed closely behind him in a 2007 Chevrolet Tahoe. As the two drove along I-20, traffic slowed ahead, and McKnight applied his brakes and stopped his vehicle—but Love forcefully hit McKnight from behind. Just prior to impact, McKnight peered into his rearview mirror and saw that Love would be unable to stop. Although McKnight could not see Love inside of the vehicle (and so he could not tell what Love was doing right before the accident), he believed Love was distracted because he was “coming pretty fast” when other vehicles had already stopped. And there is evidence that in the 20 minutes Love spent driving that morning, he continuously made and received phone calls on his cell phone.

McKnight's truck was damaged, and he sustained injuries to his back and knee, which required a hospital visit and subsequent medical care. Love was cited by police for following too closely and later pleaded guilty to that offense. McKnight, 369 Ga. App. at 813, 894 S.E.2d 110.

McKnight sought compensatory and punitive damages and expenses of litigation under OCGA § 13-6-11, which provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

As relevant to the issue presented here, Love moved for partial summary judgment on the OCGA § 13-6-11 claim, arguing that there was no evidence that he acted in bad faith. [2] However, the trial court denied the motion, ruling that there was evidence sufficient to create a jury question as to bad faith. That evidence, according to the trial court, consisted of Love's cell phone records that purported to show that Love was using his cell phone during or right before the collision and McKnight's testimony that Love “looked distracted right before the collision,” although the trial court also noted that Love testified that his vehicle was equipped with Bluetooth, a hands-free technology for talking on a cell phone. [3] The trial court also denied Love's motion for partial summary judgment on the claims that he was driving too fast for conditions, driving while distracted, driving recklessly, and failing to exercise due care. However, the trial court did not rely on the facts supporting those claims in finding a genuine issue of material fact as to bad faith.

Love appealed the trial court's ruling denying his motion for partial summary judgment as to whether there was evidence that he acted in bad faith sufficient to support a claim for expenses of litigation under OCGA § 13-6-11. In affirming, the Court of Appeals stated that “indicative of whether a party acts in good or bad faith in a given transaction is ‘his abiding by or failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter's legal rights.’ ” McKnight, 369 Ga. App. at 823, 894 S.E.2d 110 (quoting Nash v. Reed, 349 Ga. App. 381, 383, 825 S.E.2d 853 (2019)). The Court of Appeals recited that the trial court had concluded that there was a genuine issue of material fact as to whether Love was using hands-free technology or whether he violated Georgia's hands-free law, see OCGA § 40-6-241 (c), by failing to do so. However, the Court of Appeals did not address whether the trial court erred in that determination. McKnight, 369 Ga. App. at 823-824, 894 S.E.2d 110. Instead, the Court of Appeals relied on the fact that Love pleaded guilty to following too closely and noted McKnight's argument at trial and on appeal “that there is evidence to create a genuine issue of material fact on multiple potential violations of Georgia traffic laws.” Id. at 823-824, 894 S.E.2d 110 (emphasis in original).

2. The only issue in this appeal is the Court of Appeals's ruling that there was evidence sufficient to support a claim for litigation expenses under OCGA § 13-6-11 based on Love's bad faith.

The term “bad faith” is not defined in OCGA § 13-6-11 or elsewhere in Title 13. Nevertheless, the language used in OCGA § 13-6-11, or language virtually identical to it, has been a part of Georgia law since the Code of 1860. See Ga. Code Ann. 1860, Part II, Title 7, Chapter IX, § 2883 (effective Jan. 1, 1863); Taylor v. Devereux Foundation, Inc., 316 Ga. 44, 116 nn.93-94, (885 S.E.2d 671) (2023) (Ellington, J., dissenting in part and concurring in the judgment only in part) (tracing statutory history of OCGA § 13-6-11). We have a wealth of case law interpreting the phrase “bad faith” in OCGA § 13-6-11 and its statutory predecessors, although we have not previously provided a precise definition of that phrase. And we need not provide a precise definition here because a review of our case law applying this provision provides sufficient and consistent parameters as to the scope of conduct that has been held to demonstrate “bad faith” or that has been excluded from that definition. [4]

Applying that body of case law, as shown below, reveals that the type of conduct in the underlying transaction [5] that will support a claim for “bad faith” expenses of litigation in a tort action [6] requires conduct that is generally indicative of intentional wrongdoing or of a reckless disregard of known harmful consequences and must be more than mere negligence.

In one of the earliest cases discussing the type of evidence that would support a claim for bad faith expenses of litigation, we held that allegations, if true, that the defendants either concocted or knowingly participated in a fraudulent scheme to deprive a widow and her infant son out of any interest in her deceased husband's estate would demonstrate that the defendants acted in bad faith sufficient to authorize the recovery of litigation expenses under a predecessor to OCGA § 13-6-11. See Jones v. Gilpin, 127 Ga. 379, 383, 56 S.E. 426 (1907). And in our most recent case addressing such evidence, we stated that a jury's finding that the defendant acted in bad faith was supported by evidence showing that the defendant was “consciously indifferent to the consequences of its failure to ... give [the plaintiff] appropriate and adequate supervision,” which failure led to the plaintiff being sexually assaulted. Taylor, 316 Ga. at 90, 885 S.E.2d 671.

Jones, Taylor, and the other cases we have decided under OCGA § 13-6-11, or one of its predecessors, consistently describe the type of conduct that is sufficient to support a claim for bad-faith expenses of litigation as intentional, wanton, reckless, or at least indicative of a conscious indifference to the consequences. [7] See, e.g., Merlino v. City of Atlanta, 283 Ga. 186, 188-190, 657 S.E.2d 859 (2008) (reversing grant of summary judgment to the defendant on the plaintiff's claim for expenses of litigation where there was evidence from which the jury could determine the defendant acted in bad faith by plugging underground pipe despite knowing that the plaintiff's property would flood as a consequence and did not unplug the pipe even after the property flooded multiple times); Tyler v. Lincoln, 272 Ga. 118, 120-121, 527 S.E.2d 180 (2000) (stating that where the question of the defendant's commission of an intentional tort remained for the jury, “the claim for attorney fees rooted in bad faith concerning those actions should have also been left for the jury”); Baker v. Miller, 265 Ga. 486, 486, 458 S.E.2d 621 (1995) (describing defendant's “series of misrepresentations” as evidence of bad faith sufficient to support award of attorney fees); City of Dublin v. Hobbs, 218 Ga. 108, 110, 126 S.E.2d 655 (1962) (holding that there was no error in charging the jury regarding a claim for attorney fees that “every intentional tort invokes the species of bad faith that entitles a person wronged to recover the expenses of litigation involving attorney's fees”); Cook v. Robinson, 216 Ga. 328, 332, 116 S.E.2d 742 (1960) (holding that claim for attorney fees was adequately alleged in the complaint where bad faith was “sufficiently inferable from the tortious acts allegedly committed willfully and wantonly pursuant to a conspiracy to destroy the petitioner's business”); Williams v. Harris, 207 Ga. 576, 579, 63 S.E.2d 386 (1951) (holding that award of attorney fees based on bad faith was authorized by evidence that the defendant, after selling land to the plaintiff, willfully trespassed on that land, repeatedly removed stakes marking the boundaries of that land, and erected permanent obstructions to exclude plaintiff from the property plaintiff had purchased); Grant v. Hart, 197 Ga. 662, 672, 30 S.E.2d 271 (1944) (holding that there was no error in submitting claim for expenses of litigation to jury where defendant was alleged to have acted fraudulently in a stock transaction).

While at one end of the spectrum, intentional or egregious misconduct will often suffice to support a claim for expenses of litigation based on bad faith, [8] at the other end, we have rejected the idea that mere negligence constitutes bad faith for purposes of awarding attorney fees. See, e.g., Greenway v. Hamilton, 280 Ga. 652, 655, 631 S.E.2d 689 (2006) (affirming an award of attorney fees against an executor where evidence showed he had acted in bad faith and stating, “bad faith is not simply bad judgment or negligence, but a breach of known duty through some motive of interest or ill will” (cleaned up)). This conclusion is consonant with our determinations in other contexts where we have similarly explained that bad faith is not demonstrated by mere negligence.

• See, e.g., In the Matter of Coomer, 315 Ga. 841, 860, 885 S.E.2d 738 (2023) (in connection with judicial disciplinary proceeding, stating that “to qualify as ‘actions taken in bad faith,’ an action must involve something more than negligence”);

• State v. Bryant, 307 Ga. 850, 854, 838 S.E.2d 855 (2020) (in connection with claim for sanctions for failure to comply with discovery obligations, stating that “inherent in the concept of bad faith is something more than negligence” (cleaned up));

• Allright Auto Parks, Inc. v. City of Atlanta, 257 Ga. 315, 318, 357 S.E.2d 797 (1987) (in considering whether government pursued condemnation in bad faith, stating, “we have distinguished bad faith from negligence and have gone so far as to equate it with conscious wrongdoing motivated by improper interest or by ill will” (cleaned up)).

• And the Court of Appeals has similarly held that mere negligence or bad judgment is insufficient to show bad faith for purposes of OCGA § 13-6-11. See, e.g., MARTA v. Mitchell, 289 Ga. App. 1, 4, 659 S.E.2d 605 (2007) (“Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will.” (cleaned up)). [9]

3. We now consider whether the Court of Appeals's reasoning here is consistent with our precedent. As noted above, the Court of Appeals held that one way to show bad faith would be to demonstrate a party's “failing to comply with a public law made for the benefit of the opposite party, or enacted for the protection of the latter's legal rights,” and that violations of traffic laws would meet this standard. McKnight, 369 Ga. App. at 823, 894 S.E.2d 110 (cleaned up). In reaching this conclusion, the Court of Appeals cited Nash, 349 Ga. App. at 383-384, 825 S.E.2d 853, and Windermere, Ltd. v. Bettes, 211 Ga. App. 177, 179, 438 S.E.2d 406 (1993). However, neither case supports the proposition that the mere violation of a traffic law is, by itself, sufficient evidence of bad faith within the meaning of OCGA § 13-6-11. In Nash, the plaintiff was hit by a car while he was running in the road. The plaintiff sued the driver of the car and included a claim for expenses of litigation under OCGA § 13-6-11. The trial court granted the driver's motion for summary judgment on the claim for expenses of litigation, but the Court of Appeals reversed. The Court of Appeals concluded that the following evidence was sufficient to submit the issue of bad faith to the jury: the driver had seen the plaintiff and knew that the plaintiff did not see the driver's vehicle; the driver made a decision not to sound his horn to alert the plaintiff; the driver chose not to stop to allow the plaintiff to finish crossing the road; and the driver crossed a double yellow-line as he tried to avoid the plaintiff. Nash, 349 Ga. App. at 383-384, 825 S.E.2d 853. Although the Court of Appeals noted that “traffic laws generally prohibit” crossing a double yellow-line, id. at 384, 825 S.E.2d 853, it did not rely solely on the violation of a traffic law in reciting evidence of bad faith. Rather, it focused on the driver's conscious decisions not to alert the plaintiff by honking and to not stop. And other than Nash, the parties have not pointed us to any case, and we see none, in which the violation of a traffic law was the sole basis to support a claim for bad faith expenses of litigation. Moreover, traffic offenses, which are set out in Chapter 6 of Title 40 (“Uniform Rules of the Road”), “are ‘strict liability’ offenses, meaning that they can be committed without a culpable mental state.” State v. Ogilvie, 292 Ga. 6, 8, 734 S.E.2d 50 (2012). Accordingly, violations of strict liability traffic offenses do not, by themselves, establish “the specific intent or wrongful purpose that is an element of other crimes.” Id. at 9, 734 S.E.2d 50. Thus, the violation of a traffic law, by itself, does not show the type of intentional or reckless conduct that has been required under the case law set forth above to demonstrate bad faith.

Windermere is likewise distinguishable. In that case, the Court of Appeals held that the “circumstances whereby the landlord failed to exercise any effort to comply with the mandatory safety provisions of an applicable fire or building exit code” supported the jury's award of punitive damages and expenses of litigation under OCGA § 13-6-11. 211 Ga. App. at 178-179, 438 S.E.2d 406. Windermere is consistent with the long line of precedent from this Court, cited above, holding that evidence that is sufficient to establish a claim for punitive damages is also sufficient to state a claim for bad-faith expenses of litigation under OCGA § 13-6-11. Thus, Windermere does not support the proposition that the violation of a traffic law is itself sufficient to establish bad faith. Because Nash, 349 Ga. App. at 383-384, 825 S.E.2d 853, and Windermere, 211 Ga. App. at 179, 438 S.E.2d 406, are inapposite, we conclude that the Court of Appeals erred in determining that the negligent violation of a traffic law by itself will support a claim for expenses of litigation under OCGA § 13-6-11 based on bad faith.

4. Next, we consider the evidence presented here. McKnight points to no evidence in the record, and we see none, showing that Love's conduct in following too closely, to which he pleaded guilty, or his potential violations of other strict liability traffic laws was accompanied by an intent to injure, or done in a manner indicative of the sort of consciousness of wrongdoing or a similar culpable state of mind that has been held previously to support a claim for bad faith under OCGA § 13-6-11. Instead, the evidence, viewed in the light most favorable to McKnight as the party opposing summary judgment, [10] shows that Love was driving approximately 25 to 30 mph, well below the speed limit on the interstate highway, in stop-and-go traffic at rush hour, and that he applied his brakes before colliding with McKnight, who had stopped ahead of him.

Additionally, under McKnight's theory that Love was distracted because he was talking on his cell phone, [11] every automobile accident case involving cell phone use would present a jury question as to bad faith simply because the driver could have been distracted by a phone call. That scenario generally would raise, at most, an issue of negligence. Furthermore, an interpretation of OCGA § 13-6-11 that permits the award of litigation expenses in all negligence cases would conflict with the language of the statute that “[t]he expenses of litigation generally shall not be allowed as a part of the damages.” Given this unambiguous prefatory statement, an interpretation of “bad faith” that would routinely allow the award of such damages based on merely negligent conduct would not be consistent with the statutory language, and in fact would contradict it. Thus, we reject any interpretation of “bad faith” that would allow expenses of litigation to be awarded in routine negligence cases. See Monroe v. State, 315 Ga. 767, 786, 884 S.E.2d 906 (2023) (explaining that we must give meaning to all words in a statute); Camden County v. Sweatt, 315 Ga. 498, 509, 883 S.E.2d 827 (2023) (stating that “courts generally should avoid a construction that makes some language mere surplusage.” (cleaned up)); Mateen v. Dicus, 281 Ga. 455, 456, 637 S.E.2d 377 (2006) (rejecting interpretation that was contrary to statute's plain language).

In summary, the Court of Appeals applied an erroneous standard for “bad faith.” And applying the understanding of bad faith that is consistent with our longstanding precedent, we conclude that there was insufficient evidence to submit the claim for bad faith expenses of litigation to the jury. Therefore, we reverse the Court of Appeals's judgment affirming the trial court's denial of Love's motion for partial summary judgment on the issue of expenses of litigation under OCGA § 13-6-11 based on bad faith.

Judgment reversed.

All the Justices concur.

All Citations

--- S.E.2d ----, 2025 WL 676631