Facts
Arnold and Liggins were involved in a motor vehicle accident, with Arnold rear-ending Liggins. The case went to trial and the jury returned a verdict for Liggins with an award of $70,000 in damages. Prior to trial, Liggins had sent an offer of settlement for $45,000 via e-mail, so Liggins sought attorney’s fees and cost of litigation. The trial court granted the motion and awarded $245 in costs and $23,430 in attorney’s fees.
Arnold appealed. In addition to arguing the award under O.C.G.A. § 9-11-68 was improper because Liggins failed to comply with the service requirements, Arnold also argued that the trial court erred (1) in excluding an accident report from a previous wreck two years prior, (2) admitting a health insurance claim form, and (3) in allowing Liggins to claim lost earnings more than he included in the Pretrial Order.
Issues & Holdings
The issues and holdings in this case were as follows:
- Was it error for the trial judge to exclude the old accident report? No.
- Was it error for the trial judge to admit a health insurance claim form as a medical bill? No.
- Was it improper for Liggins to request more lost earnings than he included in the pre-trial order? No.
- Was the award of attorney’s fees and costs under O.C.G.A. § 9-11-68 improper because the offer of settlement was sent via e-mail? Yes.
Reasoning
Prior Accident Report
In addition to the accident at hand, Liggins acknowledged at trial that he had been in a motor vehicle accident two years before. When asked at trial if the police came to that accident, he did not remember. Defendant Arnold wanted to use the police narrative to show that Liggins had reported back pain in the 2016 accident, as his back was also an issue in this case. The trial judge allowed Arnold to use the police report to refresh Liggins’ memory, but he could not use the narrative as it was hearsay. As part of the case, Arnold also included pictures and medical records from the prior accident that showed his injuries.
On appeal, Arnold argued that the police narrative should have been allowed under the hearsay exception for present sense impression because the narrative notes Liggins’ pain complaints. The Court of Appeals rejected this argument. The Court of Appeals reasoned that there was nothing in the police report that details when the pain complaints were made, such as how soon after the collision Liggins complained of pain or if it was spontaneous.
The Court of Appeals further noted that, even if it was error to exclude the report, it was harmless. The Court of Appeals noted that the Defendant had admitted other evidence of Plaintiff Liggins’ injuries from that wreck, including his medical records and photos from the prior wreck..
Health Insurance Claim Form as a Bill
At trial, Liggins identified a bill he received for an MRI and that document was admitted into evidence. Arnold objected to the bill’s admission because it did not qualify as a medical bill under O.C.G.A. § 24-9-921. Arnold argued the “bill” was a health insurance claim form because the “bill” said it was from a third-party, not the provider of the MRI.
The Court did not accept this argument because Arnold did not provide any authority on why the claim form did not qualify as a medical bill under O.C.G.A. § 24-9-921. Further, Arnold had not shown how the admission of the claim form was harmful. The Court noted that the medical expenses totaled a little under $15,000, with the disputed MRI bill representing just $2,370. Yet the jury awarded a verdict of $70,000.
Lost Earnings Above What Was Identified in the Pre-Trial Order
In the pre-trial order, Liggins asked for special damages that included loss of earnings as proven at trial. That same order noted that $10,562 had been identified as the lost earning capacity. Yet in his closing argument, Liggins asked for lost earnings in the amount of $17,281, claiming that the number in the pre-trial order did not include all income. Liggins argued that Defendant Arnold had notice of the additional amount because he was given a copy of documentation showing the higher amount. The trial court told Liggins to move on with his closing when Arnold objected. When the jury was excused, Arnold reiterated his objection and the trial court responded that it was sufficient that Defendant Arnold had argued to the jury that the amount was inflated.
On appeal, Defendant Arnold argued that by allowing Liggins to claim a higher number, he was deprived of the ability to do discovery and prepare a defense for the new number. Arnold also cited to O.C.G.A. § 9-11-9(g), which provides that special damages need to be specifically stated. The Court of Appeals reasoned there was no case law provided that supports a new trial as a remedy for the defect, and that Arnold should have made a motion for a more definite statement during discovery. The Court of Appeals further noted that Defendant Arnold did get a chance to argue the higher amount in front of the jury. As a result, the Court of Appeals held that the trial court did not abuse its discretion.
Award of Fees Under O.C.G.A. § 9-11-68
Last, Defendant Arnold argued that the trial court erred in granting an award of costs and attorney’s fees under O.C.G.A. § 9-11-68 because Liggins failed to send his offer of settlement by certified mail or statutory overnight delivery, as required by the statute. The Court of Appeals agreed.
The Court of Appeals reasoned that any statute that allows for the award of attorney’s fees is in derogation of common law and as such must be strictly construed. The Court then turned to the language of § 9-11-68, specifically section (a)(8), which requires the offer include a certificate of service and be served by certified mail or statutory overnight delivery in the form required by § 9-11-5. Liggins argued that subsection (f) of § 9-11-5 allows for electronic service of pleadings, and therefore, his email of the offer of settlement was sufficient service.
The Court of Appeals cited to Graham v. HHC St. Simons, Inc., where the Court of Appeals decided that an offer did not qualify as an offer under § 9-11-68 because it was faxed and emailed. 322 Ga. App. 693 (2013). Further, the Court of Appeals rejected the argument that e-mail service was sufficient under O.C.G.A. § 9-11-5 because O.C.G.A. § 9-11-68(a)(8) is clear that offers of settlement must be sent by certified or statutory overnight mail.
Conclusion
This case addressed several issues that routinely come up in car wreck trials. One, prior or subsequent wrecks are frequently an issue in these cases. Two, the types of documentation that constitutes a “bill” sometimes arises. Three, damages beyond what is specifically claimed in the pretrial order are sometimes introduced into evidence. And last, car wreck cases frequently involve offers of settlement.
This case does provide clarity on the admissibility of prior and subsequent wreck reports, but whether they are admissible or not will largely rest within the discretion of the trial court. If other evidence of the incident, or the injuries sustained in it, are admitted into evidence, then it is likely not going to be error to exclude it.
Health insurance claims forms can be admitted as evidence as medical bills. In some cases, these are the only bills that the parties get from providers.
Although the trial court did allow the plaintiff to claim higher damages than were included in the pretrial order, it is important to remember that the trial court has discretion on whether to permit it or preclude it. If you intend to claim higher damages, move to amend the pretrial order and provide plenty of notice to the other party before trial.
And last, make sure you send offers of settlement via certified mail or statutory overnight delivery. E-mail service is not sufficient.
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Citation: Arnold v. Liggins, No. A23A0331 (Ga. Ct. App. June 29, 2023)
