FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 13, 2026
In the Court of Appeals of Georgia A25A2124. HARRIS v. GRANT-MALCOLM.
MCFADDEN, Presiding Judge.
Shortly before a jury trial was set to begin in this case stemming from a fatal
collision on Interstate 285, the trial court entered an order on motions in limine. The
court granted the plaintiff’s motion to prevent the defendant from arguing that any
damages award should be fair to both parties. The court also denied the defendant’s
request to charge the jury on this principle.
We granted the defendant’s application for interlocutory appeal from these
rulings. On appeal, the defendant also challenges an order denying his motion for
partial summary judgment on the issue of the plaintiff’s claim for bad-faith attorney
fees and litigation expenses under OCGA § 13-6-11. It is a longstanding, accepted principle of Georgia law that a verdict should be
reasonable and just to both parties. So we hold that the trial court erred by ruling
otherwise, and we vacate the orders granting the plaintiff’s motion in limine and
denying the defendant’s request to charge. We remand for further proceedings not
inconsistent with this opinion.
As for the plaintiff’s claim for OCGA § 13-6-11 bad-faith attorney fees and
litigation expenses, it fails under our Supreme Court’s recent decision in Love v.
McKnight, 321 Ga. 196 (913 SE2d 614) (2025). Under Love the showing required is
conduct that is intentional, wanton, reckless, or at least indicative of a conscious
indifference to the consequences; and evidence of traffic violations, by itself, is not
sufficient. The plaintiff has not come forward with the requisite showing. So we
reverse the order denying the defendant’s motion for summary judgment on that
claim.
1. Factual background
A car being driven by a third party stopped in a middle lane of Interstate 285
because of mechanical problems. David Malcolm, the plaintiff’s deceased husband,
stopped behind the disabled car, exited his car, and walked up to the disabled car.
2 Defendant Rodney Harris was driving in the same lane as the third party’s and
Malcolm’s cars. He began moving his truck to an adjacent lane when he struck
Malcolm. Malcolm died from his injuries.
Malcolm’s widow, Anya Renee Grant-Malcolm, and his estate (collectively
“Grant-Malcolm”) sued Harris for wrongful death based on claims of negligence and
negligence per se. Grant-Malcolm sought general and special damages, including
damages for pain and suffering, funeral expenses, medical expenses and lost wages,
as well as damages for the full value of Malcolm’s life. She also sought an award of
attorney fees and litigation expenses under OCGA § 13-6-11.
Harris moved for partial summary judgment on the OCGA § 13-6-11 claim. The
trial court granted the motion to the extent the claim was based on allegations of
stubborn litigiousness and unnecessary trouble and expense, but denied it to the extent
the claim was based on allegations of bad faith.
Three weeks before the trial was set to begin, Grant-Malcolm moved in limine
to prevent Harris from arguing to the jury that damages should be fair to both sides,
because “fairness to both parties is not the legal principle by which damages for injury
and death are determined under Georgia law.” The trial court granted the motion.
3 Harris’s requests to charge the jury included a charge on fairness to both
parties: § 66.001 from the Suggested Pattern Jury Instructions, Vol. 1: Civil, Tort
Damages; Preliminary Instructions (2025). That instruction includes the sentence,
“When one party is required to pay damages to another, the law seeks to ensure that
the damages awarded are fair to both parties.” The trial court held that it would not
include that sentence in the charge of § 66.001.
We granted Harris’s application for interlocutory appeal, and this appeal
followed.
2. Fair-to-both parties language
Harris argues that the trial court erred by preventing counsel from arguing that
a damages award must be fair to both parties and by refusing to include this principle
in the jury charge on the ground that the principle is in conflict with Georgia law on
damages. We hold that the fair-to-both-parties principle is an accepted principle of
Georgia law on damages. So we vacate the trial court’s orders.
We review both a ruling on a motion in limine and a refusal to give a requested
jury charge for an abuse of discretion. But the trial court’s legal conclusions that
underpin that discretionary decision are reviewed de novo. See generally Premier
4 Pediatric Providers v. Kennesaw Pediatrics, 318 Ga. 350, 356 (2) (898 SE2d 481) (2024).
In other words, under the abuse-of-discretion standard, “when questions are
committed to a trial court’s discretion, the court is afforded substantial deference that
allows for a range of permissible outcomes, as long as that discretionary decision is
based on a correct understanding of the law and facts.” Id. at 359 (3) (citation and
punctuation omitted). Here, the trial court’s rulings were based upon the legal
conclusion that fairness to both parties is not a component of the kind of damages at
issue in this case.
Specifically, citing OCGA §§ 51-12-1 through 51-12-14, which concern damages
in tort actions, the trial court determined that it would not allow Harris to make the
“fair” argument because “the use of the word ‘fair’ is not included” in the
“applicable Georgia [s]tatutes on damages.” So the court concluded that “a ‘fairness’
argument is inappropriate.” For the same reason the court denied the request to
include in the jury charge the fair-to-both-parties language from § 66.001 of the
Suggested Pattern Jury Instructions. We review these rulings de novo.
(a) Jury charge
5 We start with the jury charge issue. “A requested charge should be delivered
if it is a correct statement of law that is pertinent and material to an issue in the case
and not substantially covered by the charge actually given.” Pruitt v. State, 258 Ga.
583, 588 (13) (373 SE2d 192) (1988); accord Lee v. Swain, 291 Ga. 799, 800 (2) (b) (733
SE2d 726) (2012)(“In order for a refusal to charge to be error, the request must be
entirely correct and accurate; adjusted to the pleadings, law, and evidence; and not
otherwise covered in the general charge.”).
The issue, then, is whether the trial court erred in holding that the principle
embodied in the sentence “when one party is required to pay damages to another, the
law seeks to ensure that the damages awarded are fair to both parties,” is not a correct
statement of the law. Cf. White v. Stanley, 369 Ga. App. 330, 331-332 & 336 (1) (893
SE2d 466) (2023) (concluding that instruction that tracked the language of a
suggested pattern jury instruction was not a correct statement of law). Binding
precedent from our Supreme Court demonstrates that it is.
Our Supreme Court addressed the proper measure of damages for permanent
injury in a personal injury action in 1890:
We therefore think that it is better for both parties to let the jury look at these things as a whole, in the light of common sense and their own
6 experience, and let them make such a compensation in their verdict as would be reasonable and just to both parties, not giving to the plaintiff a large sum with the purpose of enriching him, but compensating him for the loss of money which he would probably earn had he not been injured, and thereby prevented by the negligence of the defendant.
Richmond & D. R. Co. v. Allison, 86 Ga. 145, 150-151 (12 SE 352) (1890) (emphasis
added). Although Richmond was a personal injury action and not a wrongful death
action, this distinction is not significant because “the sorts of damages recoverable in
wrongful death actions are substantially the same as the kinds of damages that may be
recovered in personal injury actions.” Bibbs v. Toyota Motor Corp., 304 Ga. 68, 75 (3)
(815 SE2d 850) (2018).
In 1891, in S. Bell Tel. & Tel. Co. v. Jordan, 87 Ga. 69 (13 SE 202) (1891), the
Court reviewed the trial court’s instructions to the jury on damages for pain and
suffering, a component of wrongful death damages. Auld v. Forbes, 309 Ga. 893, 898
n.5 (2) (848 SE2d 876) (2020) (wrongful death damages include the decedent’s
pre-death physical and mental pain and suffering). The court held that instructions
that “the law leaves the question of amount, in cases where an award is proper, to the
sound discretion of the jury,” and that “the law declares that damages of this kind are
7 in the discretion of enlightened jurors whose aim is to be just and not oppressive”
were not erroneous, considered within the context of the charge as a whole. S. Bell Tel.
& Tel. Co., 87 Ga. at 72-73. The concept of “just and not oppressive” implies that the
jurors should consider the impact of the award on the defendant.
The law has not changed. In 2008, the Court held that “the method of
calculating damages should be flexible so as to reasonably compensate the injured
party, and at the same time, be fair to all litigants.” John Thurmond & Assocs. v.
Kennedy, 284 Ga. 469, 473 (2) (668 SE2d 666) (2008) (emphasis added; action for
breach of contract and negligent construction). See also MCI Communications Servs.
v. CMES, 291 Ga. 461, 463 (728 SE2d 649) (2012) (addressing available damages in
negligence and trespass action, and holding that “[t]he rationale of damages, as in this
case, is to compensate the plaintiff and not to unreasonably burden the defendant
beyond the point of compensating the plaintiff. The basic tenet under Georgia law is
that compensation, not enrichment, is the basis for the award of damages.”) (citations
and punctuation omitted).
This court, too, has held that the principle embodied in the sentence “when one
party is required to pay damages to another, the law seeks to ensure that the damages
8 awarded are fair to both parties” is a correct statement of law. In Shepherd Constr. Co.
v. Vaughn, 88 Ga. App. 285 (76 SE2d 647) (1953), the plaintiff filed a nuisance action
seeking recovery of damages for injury to real and personal property as well as for pain
and suffering. The trial court instructed the jury that “[t]he guide for the jury in
determining compensation for mental and physical pain and suffering is the
enlightened conscience of impartial jurors, acting under the sanctity of their oath to
compensate the plaintiff with fairness to the defendant.” Id. at 289 (3). See also
Allison v. Patel, 211 Ga. App. 376, 380 (438 SE2d 920) (1993) (trial court instructed
jury in wrongful death case that “damages in a fair and reasonable and just amount are
given as compensation”).
Grant-Malcolm’s arguments to the contrary are not persuasive. In McClellan
v. Evans, 294 Ga. App. 595 (669 SE2d 554) (2008) — which she attempts to
distinguish — we held that it “is an accepted principle” “[t]hat the jury should be fair
to both parties in awarding damages[.]” Id. at 598 (2). Grant-Malcolm would have us
distinguish McClellan on the ground that, unlike here, the plaintiff did not object to
the sentence about fairness to both parties. But in light of the long line of cases
affirming and reaffirming that fairness to both parties in awarding damages is an
9 “accepted principle of law,” McClellan 294 Ga. App. at 598 (2), such an objection
would have been meritless.
Grant-Malcolm cites Sharp v. Fagan, 215 Ga. App. 44 (449 SE2d 648) (1994),
to support her argument that the trial court did not err in refusing to give the
requested charge. But Sharp does not help her. In the first place, if we had refused in
Sharp to abide by the Supreme Court authority described above, we would have erred.
Moreover the rationale for our affirmance of the trial court’s refusal to give the fair-to-
both-parties language is not clear. We rejected the appellant’s argument that the trial
court erred by refusing to give three requested charges on damages, including “a
general instruction that the damages awarded must be fair to both parties.” Id. at 46
(5). We held that the three “charges either were not adjusted to the evidence or were
covered in the court’s general charge.” Id.
Grant-Malcolm also argues that the requested charge misstates the measure of
wrongful death damages, that it improperly substitutes fairness to Harris as the
measure of wrongful death damages instead of the full value of Malcolm’s life from
Malcolm’s perspective. See OCGA §§ 51-4-1 (1); 51-4-2 (a) (wrongful death damages
are the full value of the life of the decedent, as shown by the evidence and without
10 deducting for any of the necessary or personal expenses of the decedent had he lived).
But those two principles are not in conflict. Charging the jury on fairness to both
parties does not mean that the court would not also charge the jury on the appropriate
statutory measures of damages. See generally Collins v. Porterfield, 102 Ga. App. 294,
296-297 (3) (c) (116 SE2d 105) (1960) (rejecting defendant’s challenge to an arguably
improper portion of court’s instruction on damages, because court also “charged
extensively on the various items of damages”; charged that damages are given as
compensation for injury done; and charged that “the verdict should be in such amount
as is just and fair to both parties”). And charging both the fair-to-both parties language
and the statutory measures of damages is in accordance with “[t]he basic tenet under
Georgia law . . . that compensation, not enrichment, is the basis for the award of
damages.” MCI Communications Servs., 291 Ga. at 463 (citations and punctuation
omitted).
So the trial court erred by holding that the fair-to-both-parties principle violates
the Georgia law on damages. Having relied on that holding, the trial court failed to
exercise its discretion with respect to whether that principle would be “substantially
covered” by other parts of the charge. See Pruitt, 258 Ga. at 588 (13). We vacate the
11 court’s denial of Harris’s request to charge the jury on this principle and remand for
consideration of whether it would otherwise be substantially covered.
(b) Argument
“Counsel have every right to refer to applicable law during closing argument
(i.e., law that the court is going to give in charge).” Conklin v. State, 254 Ga. 558, 570
(1) (b) (331 SE2d 532) (1985). So we also vacate the trial court’s order prohibiting
Harris from arguing this principle.
Harris argues that the trial court erred in denying his motion for summary
judgment on the claim for OCGA § 13-6-11 bad-faith attorney fees and litigation
expenses. We hold that Harris is entitled to summary judgment on this claim.
In the trial court, Grant-Malcolm argued that the evidence showed that Harris
committed the traffic offenses of speeding through a construction zone and failing to
keep a proper lookout in violation of traffic laws, which was sufficient to create a
question of fact on the issue of bad faith. She relied on McKnight v. Love, 369 Ga. App.
812 (894 SE2d 110) (2023). In that case, we held that the trial court did not err in
denying the defendant’s motion for summary judgment on the plaintiff’s claim for
12 bad-faith attorney fees and litigation expenses under OCGA § 13-6-11, because the
evidence created a genuine issue of material fact as to whether the defendant had
violated multiple Georgia traffic laws. 369 Ga. App. at 823-24 (2).
But our Supreme Court granted certiorari in McKnight v. Love and — in an
opinion handed down after the trial court denied Harris’s motion for summary
judgment — reversed. Love v. McKnight, 321 Ga. 196 (913 SE2d 614) (2025). Under
Love, Harris is entitled to summary judgment on the OCGA § 13-6-11 bad-faith claim.
As an initial matter, we reject Grant-Malcolm’s assertion that we should not
consider Harris’s argument regarding the application of the Supreme Court’s opinion
in Love because it is a new argument. Both parties argued this issue in the trial court
and the trial court addressed the issue, so the argument is not new. In any event,
“[t]he general rule is that judicial decisions apply retroactively . . . .” Sherman v. Dev.
Auth. of Fulton County, 324 Ga. App. 23, 24 (749 SE2d 29) (2013). The argument is
properly before us.
As for the merits, in Love our Supreme Court held that “the type of conduct
in the underlying transaction that will support a claim for [OCGA § 13-6-11] ‘bad
faith’ expenses of litigation in a tort action requires conduct that is generally indicative
13 of intentional wrongdoing or of a reckless disregard of known harmful consequences
and must be more than mere negligence.” 321 Ga. at 199 (2) (footnotes omitted). The
Court held that “the type of conduct that is sufficient to support a claim for bad-faith
expenses of litigation [is conduct that is] intentional, wanton, reckless, or at least
indicative of a conscious indifference to the consequences.” Id. at 199 (2) (footnote
omitted). “[M]ere negligence or bad judgment is insufficient to show bad faith for
purposes of OCGA § 13-6-11.” Id. at 201. And “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 . . . to demonstrate bad faith.” Id. at 202-203 (3).
The Court concluded that the record evidence did not show that the
defendant’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.” Love, 321 Ga. at 203 (4). So the defendant was
entitled to “partial summary judgment on the issue of expenses of litigation under
OCGA § 13-6-11 based on bad faith.” Id.
14 Grant-Malcolm would distinguish Love on the ground that Love involved a
single violation of traffic laws, while Harris allegedly violated multiple traffic laws. But
she misreads Love. That case did not necessarily involve a single violation of traffic
laws. The defendant in that case pled to one offense: following too closely. But there
was evidence of “his potential violations of other strict liability traffic laws[.]” Love,
321 Ga. at 203 (4). See also McKnight, 369 Ga. App. at 823-824 (2) (there was a
genuine issue of material fact on the question of whether the defendant had committed
“multiple potential violations of Georgia traffic laws”) (emphasis in original).
Turning to the evidence in the case before us, Grant-Malcolm argues that a jury
would be authorized to conclude that Harris was driving 15 miles per hour over the
speed limit in a construction zone; did not observe the stopped vehicles or Malcolm
for more than 20 seconds, in spite of Malcolm waving his hands and other vehicles
noticing; violently jerked his steering wheel and veered across a lane; struck Malcolm
and another vehicle; and told the police that Malcolm ran in front of his truck. She
argues such evidence is indicative of a reckless disregard of the law and a conscious
indifference to consequences.
15 Grant-Malcolm also cites Nash v. Reed, 349 Ga. App. 381 (825 SE2d 853) (2019)
in support. But Nash is distinguishable. In Nash, the defendant driver knew that the
plaintiff pedestrian did not see the driver’s vehicle; the driver thought about honking
his horn to warn the pedestrian but decided against it; the driver could have but chose
not to stop to allow the pedestrian to finish crossing the road; and the driver crossed
a double yellow-line as he tried to avoid the pedestrian. Nash, 349 Ga. App. at 383-384
(1). In other words, the driver saw the pedestrian, knew the pedestrian did not see
him, and made “conscious decisions not to alert the plaintiff[-pedestrian] by honking
and to not stop.” Love, 321 Ga. at 202 (3) (distinguishing the facts in that case from
the facts in Nash). Here, on the other hand, Grant-Malcolm concedes that Harris did
not see Malcolm.
The evidence does not create a question of fact on the issue of whether Harris
acted with “an intent to injure, or [on the issue of whether his conduct was] 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.” Love, 321 Ga. at 203 (4).
16 So Harris is entitled to summary judgment on Grant-Malcolm’s claim for bad-
faith attorney fees and litigation expenses under OCGA § 13-6-11.
Judgment reversed in part, vacated in part, and case remanded. Hodges and Pipkin,
JJ., concur.