“Tort Reform” turned on Defendant in Gwinnett County – April 21, 2010   Leave a comment

Personal injury trial attorney Render Freeman of Andersen Tate & Carr, PC, Duluth Georgia recently represented Dennis White in a jury trial against April McLendon in a straight forward road wreck case. In March of 2008, Ms. McLendon struck Mr. White’s vehicle during their evening commute. The wreck led to shoulder surgery for Mr. White, $50,000 in medical expenses and $2,200 in lost wages.

The liability carrier tendered its policy limits of $50,000 but Mr. White was required to fully litigate the claim against his own insurer (Liberty Mutual), whom he had paid for $500,000 in underinsured motorist coverage. Liberty Mutual low-balled Mr. White offering only an additional $50,000 and on April 20th and 21st, Mr. Freeman tried the case to a jury in the State Court of Gwinnett County, Judge Randy Rich presiding. The trial lasted 1 ½ days and the jury needed only 40 minutes to award Mr. White the verdict that he requested: $50,000 in medical expenses, $2,200 in lost wages and $200,000 in past and future pain and suffering.

Here’s where the case got really interesting. After the verdict was returned in favor of Mr. White, Mr. Freeman utilized a little known provision of Georgia’s 2005 Tort Reform legislation that allows the jury to award attorney’s fees and expenses to the prevailing party. OCGA 9-11-68(e) provides that once a verdict is returned, the prevailing party may ask the court to commence a second phase of the trial on whether the defenses asserted were frivolous. The finder of fact – the jury – then decides whether any of the defenses were frivolous and, if so, may award attorneys’ fees and litigation expenses.

During this second phase of the trial, Mr. Freeman presented evidence of approximately $33,000 in attorney’s fees and expenses. Liberty’s in-house counsel then argued to the jury that his defenses were not frivolous, but, while the jury was deliberating, Liberty agreed to pay the verdict plus $30,000 in fees and expenses.

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