CourtListener 10680496

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: March 4, 2025

S24G0371. LOVE v. MCKNIGHT.

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 SE2d 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

1 This case was orally argued on August 21, 2024.
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.

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

2
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

2 Love also moved for partial summary judgment on the issues of
negligence per se based on driving too fast for conditions, failing to exercise
due care, driving while distracted, and driving recklessly; punitive damages;
and expenses of litigation based on stubborn litigiousness under OCGA § 13-6-
11. The trial court denied the motion as to the negligence per se claims but
granted it as to the claims for punitive damages and expenses of litigation
based on stubborn litigiousness. Love did not challenge the rulings on the
claims asserting negligence per se. McKnight appealed the rulings as to
punitive damages and stubborn litigiousness, but the Court of Appeals
affirmed both rulings. See McKnight, 369 Ga. App. at 820-822. McKnight did
not file his own petition for certiorari, and so the claims for punitive damages
and litigation expenses based on stubborn litigiousness are not at issue here.

3
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

3 Love testified that his truck was equipped with Bluetooth, that his cell

phone was in a “phone mount” and was connected to Bluetooth at the time of
the collision. Love filed a motion to strike his cell phone records and certain
documents that McKnight contended showed that Love’s vehicle was not
equipped with hands-free technology. The trial court denied Love’s motion as
to the cell phone records but granted it as to the documents. Love did not
appeal the ruling denying his motion to strike the cell phone records, and
McKnight did not appeal the ruling granting the motion to strike the
documents.

4
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 (quoting Nash v. Reed, 349 Ga. App. 381, 383 (825 SE2d 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. 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 (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

5
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. Dereveux Foundation, Inc., 316

Ga. 44, 116 nn.93-94 (885 SE2d 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

4 We note that no party challenges the soundness of our precedent or

contends that we must address any novel interpretive questions about the
meaning of “bad faith.”
6
Applying that body of case law, as shown below, reveals that

the type of conduct in the underlying transaction5 that will support

a claim for “bad faith” expenses of litigation in a tort action6 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

5 It is well-settled that conduct supporting bad-faith expenses of
litigation must arise in the underlying transaction itself. See Alston & Bird,
LLP v. Hatcher Mgmt. Holdings, LLC, 312 Ga. 350, 359 (862 SE2d 295) (2021).
6 The majority of the cases in which we have considered claims for

litigation expenses under OCGA § 13-6-11 or its predecessor have involved
claims arising in tort. But we note that we have applied OCGA § 13-6-11 and
its predecessors in actions for breach of contract. See, e.g., SRM Group, Inc. v.
Travelers Prop. Casualty Co. of America, 308 Ga. 404, 410 (841 SE2d 729)
(2020) (holding that party was entitled to seek attorney fees under OCGA § 13-
6-11 based on claim for breach of contract asserted in counterclaim); Traders’
Ins. Co. v. Mann, 118 Ga. 381, 381 385-386 (45 SE 426) (1903) (construing
predecessor to OCGA § 13-6-11, describing conduct that could constitute bad
faith in an action on an insurance policy, and holding that a mere refusal to
pay does not constitute bad faith).
7
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 SE 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.

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.,

7 Although not cited by the parties, we note that in General Refractories

Co. v. Rogers, we said that in the absence of proof of an intentional tort, there
was insufficient evidence to support a claim for bad faith under a predecessor
to OCGA § 13-6-11, stating: “having held the plaintiff did not prove an
intentional tort the element of bad faith is eliminated from further
consideration in passing on attorney’s fees.” 240 Ga. 228, 235 (239 SE2d 795)

8
Merlino v. City of Atlanta, 283 Ga. 186, 188-190 (657 SE2d 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 SE2d 180) (2000) (stating that

where the question of the defendant’s commission of an intentional

(1977) (cleaned up). However, in Rogers, we made this statement only after
detailing the evidence and holding that it did not support a claim for punitive
damages because there was no evidence of willful or wanton conduct or conduct
“exemplifying conscious indifference to consequences.” Id. at 230-234. Rogers
has never been cited by this Court for the categorical proposition that evidence
of an intentional tort is required to support a claim for litigation expenses
based on bad faith. And importantly, Rogers’s outlier statement is, in some
meaningful respects, inconsistent with Taylor, a more recent case in which we
upheld an award of bad-faith litigation expenses even though there was an
absence of evidence of intentional misconduct on the defendant’s part. See
Taylor, 316 Ga. at 55, 90. Accordingly, we are bound to follow Taylor and
recognize that Rogers’s language has been implicitly overruled to the extent it
holds that expenses of litigation under OCGA § 13-6-11 based on bad faith
cannot be awarded if there is no proof of an intentional tort. See White v. State,
305 Ga. 111, 122 n.10 (823 SE2d 794) (2019) (“When a high court finds
discordant opinions among its own horizontal precedents, the court generally
follows its decision in the most recent case, which must have tacitly overruled
any truly inconsistent holding.” (cleaned up)).
9
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 SE2d 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 SE2d 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

SE2d 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

SE2d 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

10
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 SE2d

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

8 Notably, we have long held that conduct that will support a claim for

punitive damages will also support a claim for expenses of litigation under
OCGA § 13-6-11 based on bad faith. See, e.g., Taylor, 316 Ga. at 89-90 (evidence
that supported jury’s determination that punitive damages were warranted,
also supported the jury’s finding of bad faith under OCGA § 13-6-11); Ponce de
Leon Condominiums v. DiGirolamo, 238 Ga. 188, 190 (232 SE2d 62) (1977)
(“The same testimony as to the appellee’s early, persistent, and unheeded
complaints which authorizes the verdict for punitive damages in this case also
provides authorization for the jury’s finding that the appellants acted in bad
faith in failing to correct the run-off problem.”); Walker v. Grand Int’l
Brotherhood of Locomotive Engineers, 186 Ga. 811, 821-822 (199 SE 146)
(1938) (concluding that allegations that were sufficient to authorize a claim for
punitive damages were sufficient to state a claim for bad faith expenses of
litigation under a predecessor to OCGA § 13-6-11).

11
awarding attorney fees. See, e.g., Greenway v. Hamilton, 280 Ga.

652, 655 (631 SE2d 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 SE2d 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 SE2d 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 SE2d 797)

(1987) (in considering whether government pursued condemnation

in bad faith, stating, “we have distinguished bad faith from

12
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 SE2d 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

9 To the extent that the Court of Appeals’s holding in this case is
inconsistent with MARTA, we note that the Court of Appeals’s panel decision
here could not overrule its earlier decision. See White, 305 Ga. at 121
(explaining that older decisions of the Court of Appeals are binding on later
panels until reversed or overruled by this Court or overruled by the Court of
Appeals).
13
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 (cleaned up). In

reaching this conclusion, the Court of Appeals cited Nash, 349 Ga.

App. at 383-384, and Windermere, Ltd. v. Bettes, 211 Ga. App. 177,

179 (438 SE2d 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

14
the road; and the driver crossed a double yellow-line as he tried to

avoid the plaintiff. Nash, 349 Ga. App. at 383-384. Although the

Court of Appeals noted that “traffic laws generally prohibit” crossing

a double yellow-line, id. at 384, 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 SE2d 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. 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

15
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. 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, and Windermere, 211

Ga. App. at 179, 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

16
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

10 See Jones v. City of Atlanta, 320 Ga. 239, 249 (908 SE2d 519) (2024).
11 Apparently recognizing that there is no evidence in the record
contradicting Love’s testimony that his cell phone was connected to Bluetooth,
McKnight does not argue here that evidence of bad faith is shown by Love’s
failure to use hands-free technology. Thus, we need not decide whether such
evidence might in some circumstances constitute evidence that could be used
to support a claim for litigation expenses based on bad faith.

17
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 SE2d 906) (2023) (explaining

that we must give meaning to all words in a statute); Camden

County v. Sweatt, 315 Ga. 498, 509 (883 SE2d 827) (2023) (stating

that “courts generally should avoid a construction that makes some

language mere surplusage.” (cleaned up)); Mateen v. Dicus, 281 Ga.

18
455, 456 (637 SE2d 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.

321 Ga. 196
FINAL COPY

S24G0371. LOVE V. MCKNIGHT.

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 SE2d 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:

1 This case was orally argued on August 21, 2024.
[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.

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

2
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

3
hands-free technology for talking on a cell phone.3 The trial court