Trial Notebook : Attorney Fees

This is a two attorney case where the claimant fired or lost his first attorney and a new attorney came in and settled the matter. The first attorney did not get any attorney fees in the case, and the Court of Appeals citing Don Mac Golf Shaping v. Register, 185 Ga. App. 159, 363 S.E.2d 583 (1987), held that the first attorney was entitled to be involved in the attorney fee process and to seek an award. See Yates v. Hall, 189 Ga. App. 885, 377 S.E.2d 887 (1989).

O.C.G.A. § 34-9-108(b)(1), which provides that upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the Administrative Law Judge or the Board may assess the adverse attorney's fees against the offending party. This provision, however, does not authorize an Award of attorney fees when the matter is closely contested on reasonable grounds. See Printpack, Inc. v. Crocker, 260 Ga. App. 67, 579 S.E.2d 225 (2003). All cited in Dallas v. Flying J, Inc., 279 Ga. App. 786, 632 S.E.2d 389 (2006).

The Board is authorized to assess attorney fees in either O.C.G.A. § 34-9-108(b)(1) or (2). Subsection (b)(1) provides that: "Upon a determination that the fees that have been brought, prosecuted or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney's fees against the defending party."

Whether an employer/insurer has defended against a claim without reasonable grounds presents an issue of fact or determination by the Board, and if there is any evidence to support the award, the superior court and this court must affirm. Richardson v. Ill Products and Chemicals, Inc., 217 Ga. App. 663, 458 S.E.2d 694 (1995).

An ALJ may not award attorney's fees where the matter is closely contested on reasonable grounds. See, Brigmond v. Springhill Homes of Georgia, 180 Ga. App. 875, 350 S.E.2d 846 (1986).

Need Help? We're Here For You.

Send us a message or call us now at 404.815.1776!