02
Mar
20

Reversing course, GA Sup Ct permits punitive damages in abusive litigation claim

Malpractice is not the only potential liability exposure for litigation attorneys. Attorneys also face claims under several of Georgia’s fee shifting statutes, including O.C.G.A. §9-15-14 and O.C.G.A. §51-7-80 et seq. Both of these statutes apply to claims that are considered frivolous or lacking in substantial justification. They each permit a claim against both the opposing parties asserting frivolous claims and their counsel. The former permits claims for attorney fees only and by motion only. The latter, however, is brought as a new lawsuit and permits the recovery of attorney fees and litigation expenses, plus all other damages arising out of the abusive litigation.

DNahmiasGAUntil the Supreme Court’s opinion in Coen v. Aptean, Inc., however, punitive damages were not permitted in an abusive litigation claim.  Overruling several Court of Appeals opinions to the contrary, the Supreme Court held that the statutory scheme permitting abusive litigation claims permitted a claim for punitive damages so long as the only damages were not for injury to peace and happiness.

The opinion goes into great detail into the common law abusive litigation torts and the statutory scheme that replaced the common law. The opinion may become more famous for its statutory construction approach than its actual holding. The import for now, however, is that when a lawyer get the required notice from opposing counsel for abusive litigation, the evaluation needs to include the potential exposure to punitive damages.


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