Abusive Litigation Lawsuits and Punitive Damages – Supreme Court of Georgia Overrules Decades of Case Law

Litigation and appeals title on a book beside a gavel.

For years, Georgia law has held that plaintiffs in abusive litigation lawsuits may not seek punitive damages under any circumstances. That holding changed in February of 2020, thanks to a decision from the Supreme Court of Georgia.

The decision reversed a ruling from the Court of Appeals that held up the status quo. Now, plaintiffs pursuing compensation for abusive litigation have the right to seek punitive damages as well. Despite that right, there is no guarantee in any case that punitive damages will be granted.

What Is Abusive Litigation?

Because of the costly nature of litigation, Georgia has adopted a law that provides for recourse when a person or business faces a frivolous lawsuit. This law, known as “Liability for Abusive Litigation” provides civil liability for any party that files a lawsuit or continues with litigation in bad faith. According to state law, litigation is abusive if the party to the lawsuit:

  1. acts with malice, and
  2. acts without substantial justification, or the legal action is frivolous, groundless, or vexatious.

To proceed with a claim for abusive litigation, the defendant to the original lawsuit must notify the plaintiff that they intend to do so in writing. This notice must give the original plaintiff an opportunity to dismiss the case or discontinue their frivolous position. If they fail to do so, they could face a lawsuit of their own for abusive litigation. While a successful claim could lead to actual damages, prior case law prevented a person from seeking punitive damages if their abusive litigation claim was successful.

Coen v Aptean

The issue of punitive damages in abusive litigation claims reached the Georgia Supreme Court in the case of Coen v Aptean. In the case, plaintiff Coen and his employer were embroiled in litigation for years. Ultimately, the cases were decided in Coen’s favor. Coen then sued Aptean for abusive litigation and sought punitive damages. The trial court and the Court of Appeals both blocked Coen from seeking punitive damages, and the issue went to the Georgia Supreme Court. According to the Supreme Court, punitive damages are available as long as the claim for abusive litigation was not based on damages for injuries to happiness, peace, or feelings. The court held that outside of that narrow limitation, punitive damages were not a form of impermissible double recovery and were available in these cases.

How the Decision Impacts Current Law

The primary impact of this decision is fairly clear in that it allows most plaintiffs pursuing a claim of abusive litigation to seek punitive damages as part of their recovery. However, the decision could have other far-reaching consequences. The court confirmed that the phrase “all damages allowable by law” was as broad as many plaintiffs have long argued, which could mean statutes with that language allow for the recovery of attorney’s fees.

Discuss Your Claim With Williams Elleby Howard & Easter

The law surrounding a plaintiff’s right to recovery continues to change. Given the constant updates to statutes and case law, it is crucial that you seek the guidance of experienced legal counsel before pursuing any legal claim. To discuss your options, call 833-LEGALGA to schedule a free consultation with Williams Elleby Howard & Easter.

Do I Have to Provide Insurance Companies With My Medical Records?

Yellow folders with the words medical record on them and a stethoscope laying on top of the folders.

Automobile accidents happen in the blink of an eye, but the consequences of them, even when you are not at fault, last much longer. The physical and financial recovery from automobile accidents can take months to years. Dealing with insurance companies is often one of the more stressful parts of the experience.

As well-known Georgia personal injury attorneys, we often get asked whether insurance companies have to be allowed access to your medical records after an accident. The answer depends on which records they are seeking.

Insurance Companies Can Get Some Medical Records

If you’ve been in a Georgia motor vehicle accident with injuries and are seeking compensation for those injuries from your insurer, or another driver and their insurer, you will have to show documentation of your injury. Since your injury is at issue, insurance companies will be allowed some access to your medical records.

The purpose of permitting insurance companies access is to allow them to investigate the truth of your claim. The records they may review are those that could be relevant to your Georgia automobile accident claim. While insurance companies should be allowed to verify your claim, they’re known to overreach, get more of your medical records than they are entitled to, and try to use them against you.

Be Cautious of Medical Record Requests

Insurance companies hope to find some pre-existing injury in your medical records to point to as the cause of your injuries, rather than it resulting from the Georgia motor vehicle crash. For example, if you suffered a neck injury, an insurance company may try to blame it on a sports injury you suffered 10 years prior. They will look for anything in your medical records to support their position. Seemingly innocuous doctor’s visits from the past can be turned against you.

Insurance companies have tricky ways of getting these records, such as having you sign a medical record authorization form that is very broad or lacks proper HIPAA language, or requesting more records than they are legally entitled to in the hopes you will turn them over voluntarily because you don’t know you can deny the request. We recommend that you always consult with an attorney before granting an insurance company’s medical record request. An attorney can help you understand what requests are proper.  If any requests are not proper, the attorney can help you file the proper objectives and protect your medical privacy.

If you have been injured in a Georgia motor vehicle accident and are worried about pursuing your claims because of medical privacy concerns, contact Williams Elleby Howard & Easter at 833-LEGALGA to set up a free consultation with one of our caring, experienced attorneys. We’d love to discuss your case, your rights, and your options.

Georgia Trial Lawyers Association Selects Chase Elleby for 2020-2021 LEAD Program

A headshot of a male professional.

Georgia Trial Lawyers Association Selects Chase Elleby for 2020-2021 LEAD Program

ATLANTA – The Georgia Trial Lawyers Association recently announced the selections for the 2020-2021 Leadership Education and Advanced Direction Program, or LEAD Program. This widely acclaimed and exclusive program trains and equips GTLA members who are considered potential leaders in the association with the tools and knowledge to advance in their legal careers and outside of the courtroom.

Through an intense application review and selection process, 18 attorneys were chosen to participate in this program, including Chase Elleby, one of the partners of our firm.

“It’s an honor to be selected to this year’s LEAD class with GTLA,” says Elleby. “I am looking forward to growing my knowledge and network to better serve our clients and community.”


The GTLA LEAD Program includes qualified applicants with less than 10 years of experience working in a legal practice, or those who are 35 years old or younger. The 2020-2021 LEAD Program begins this month with a kickoff event, followed by six sessions and a graduation at the GTLA Annual Convention & President’s Gala in the spring of 2021.

“I am very proud of Chase,” says Joel Williams, Partner and founder of Williams Elleby Howard & Easter. “He is a warrior and I am glad to see that his hard work and dedication to our profession is being recognized by the leading trial lawyer group in the State of Georgia, GTLA.”

“The GTLA LEAD program is one of the single-best sources for identifying and honing the talent in our association” remarked Lyle Warshauer, President of the Georgia Trial Lawyers Association. “These 18 attorneys were chosen from one of the most competitive selection processes in the program’s history, and I know that they will uphold the successful legacy of the LEAD program as they work toward becoming the future leaders of our association.”

Back to School in the Age of COVID-19

Close-up of a kids face wearing a blue face mask in front of a blurry view of a classroom in the background.

August usually brings the excitement of a new school year.  Aisles at local department stores overflow with reams of lined paper, packets of highlighters and pens, and brightly colored spiral notebooks.  Children fill their last days of summer with sleepovers, ice cream, and hours by the pool before they are back in the classroom for eight hours a day. 

This year, however, August brings much uncertainty as the spread of COVID-19 has led to a life-altering pandemic.  Many Georgia public school districts, including Cobb, Fulton, Clarke, and Dekalb, have decided to begin the semester all virtually in an attempt to slow the spread of COVID-19.  Other districts, like Paulding, are going forth with in-person learning, with enhanced safety measures reflecting CDC guidelines.  Private schools are also struggling with how to proceed during these uncertain times. In addition, childcare services for children five and under have drastically reduced their capacity with many centers closing due to concerns over the spread of the virus.  Most that remained open also diligently follow enhanced safety measures provided by the Georgia early education department, Bright from the Start. 

Considerations When Choosing a School/Daycare Facility

Prior to COVID-19, parents already had much to consider when determining which childcare or school program was best for their children.  For younger children, Bright from the Start, the Georgia pre-kindergarten program, provides parents with a checklist of considerations, but these considerations are also applicable to parents of K-12 students.  Considerations include the following:

  1. Will my child be safe, healthy, and thrive?
  2. What will my child do during the day?
  3. How are parents included?
  4. What will my child eat and when?
  5. How are staff supported?
  6. Do I agree with the discipline policy?
  7. What is the cost of care?

While these considerations are still important for parents, a few more have been added to the due to COVID-19.  Adherence to CDC guidelines is at the forefront of the checklist.  Parents must now make the choice between virtual learning and in-person learning.  Parents are looking at class sizes, mask requirements, and social distancing measures both public and private schools are taking to slow the spread of COVID-19. 

When determining where to send their child to school, it is important for parents to remember that sovereign immunity applies to the Georgia public education system.  Under Article I, section II, paragraph IX of Georgia’s state constitution, it states “sovereign immunity extends to the state and all of its departments and agencies.”  This constitutional provision provides immunity to the Georgia Department of Education (DOE) from negligence claims against faculty and staff members of the department.  This means that if a child were to contract COVID-19 at school, whether or not the school was negligent in following CDC guidelines, parents cannot file suit against the school system. 

Even though there is sovereign immunity, public elementary and secondary education schools are provided the right to purchase liability insurance pursuant to O.C.G.A. § 20-2-991.  It is not explicitly required; therefore, it is important to consider whether or not one’s school board has purchased liability insurance.  Some school districts are self-insured while others have purchased liability insurance. Regardless, contracting COVID-19 will not be covered by liability insurance as there is no direct way to prove that one’s child became sick while at school.  Still, it is important to research liability insurance as a general consideration for school selection because the presence or absence of liability insurance is a big deal for auto-accident claims involving a school bus.

Similarly, daycare facilities are strongly encouraged but not required to purchase liability insurance.  Under O.C.G.A. § 20-1a-4, facilities that have not purchased liability insurance to cover events of negligence are required to post this fact in a prominent location and notify all parents.  Parents are also required to sign a form acknowledging their understanding that the facility has not purchased liability insurance.  Once again, it is unlikely contracting COVID-19 would fall under the coverage of liability insurance, but it is still important to consider as accidents at school are bound to happen, no matter how diligent the providers.  

Additionally, many local private schools are opening to in-person learning while taking extra precautions to do so. One example is Casa Montessori in Cobb County. Private schools have more flexibility than public schools and some cases are better suited to implement CDC guidelines to ensure a safe environment for returning school children.

How Governor Brian Kemp’s Executive Order Impacts Schools/Daycare Facilities 

On June 29, 2020, Governor Kemp renewed the public health state of emergency, extending the emergency until August 11.  Additionally, Governor Kemp updated Executive Order titled “Empowering a Healthy Georgia.”  This order provides guidance for how citizens and government alike should combat the public health crisis of COVID-19.  Section VII focuses on how to protect children while still providing educational opportunities throughout the pandemic.  

The order allows school boards to depart from the traditional definitions of school year, month, and day detailed under O.C.G.A. §20-2-160(c)(2), providing flexibility for schools to determine for themselves how best to handle preventing the spread of COVID-19.  As of now, some counties have opted for virtual learning, where “independent study” will take place in the morning hours and classroom study over Zoom will take place in the afternoon.  Shortened school days are permissible under this order.

Governor Kemp’s order also provides a list of suggestions for how schools proceeding with in-person learning can protect their students from the spread of COVID-19.  These suggestions include screening for COVID-19 among individuals exhibiting symptoms, disinfecting surfaces often, encouraging outside lunch, discouraging students from using other students’ items, and requiring individuals who exhibit symptoms to not report to school.  It is strongly recommended for schools to follow this protocol; however, the order does not specifically require schools to follow this guidance.

In addition to providing recommendations for elementary and secondary education facilities, the order also details the running of daycare facilities.  Daycare facilities must adhere to the worker-child rations set forth by Bright from the Start.  Under Bright from the Start’s COVID-19 regulations, only 50 children, faculty, and staff can be in a single room at one time.  Not only must ratios be followed, extraneous transportation to and from the facility must cease.  The only transportation permitted under the order is transportation to and from the child’s place of residence.  Additional requirements, not suggestions as for elementary and secondary education, include screening children prior to them entering the classroom, restricting parental access to the classroom, having meals in the classrooms, not using toys that cannot be sanitized, and sanitizing bedding.  Parents can also look to the Bright from the Start’s COVID-19 page for more information on specific regulations. 

Considering the continued increase in COVID-19 cases, it is likely the public health emergency will be extended after August 11 and require another update to the executive order on “Empowering a Healthy Georgia.”  Parents should continue to stay up to date on orders published as they have a direct impact on their child’s education. 

How to Protect Your Child from COVID-19

There is no perfect solution to protect children from possible exposure to COVID-19 once they return in in-person learning. The risks can be minimized, but not eliminated. This is especially true for younger children who have difficulty understanding the importance of wearing masks and social distancing.

With that in mind, it is important for parents to teach their children how to protect themselves against contracting the virus.  First, parents should encourage their child to wear a mask while at school.  Many schools are requiring masks, but even if they are not, masks are important in helping to slow the spread of the virus.  Parents might worry about if their child can comply with wearing a mask for long periods of time; however, there are ways for children to become comfortable with wearing one.  Parents, prior to school beginning, should practice wearing a mask with their children.  Increase the amount of time per day the child wears the mask until they are fully comfortable wearing it for eight hours at a time, as they would during school.  Additionally, you can teach children how to properly take on and off the mask without touching their faces.

A second way for parents to protect their children is to teach their children how to properly social distance.  Children will likely look forward to seeing their friends for the first time since in-person learning ended in mid-March, so it is important for parents to emphasize to their children to avoid, they best they can, any unnecessary contact or close interaction with other children and teachers. Anyone with children will understand the difficulty in this approach, but simply reminding the children of the importance of social distancing will have an impact. Parents can also teach their children different, non-contact, ways to greet classmates and practice playing games without touching one another.

Third, parents can pack their child’s lunch rather than relying on school-prepared lunches.  This will limit the amount of people involved in handling the child’s food and the amount of surfaces the child must touch prior to getting the food.  The surfaces include opening the fridge to get milk, grabbing the tray, and punching in their lunch number on the pad.  Parents should also practice opening lunch items with their child prior to the start of school and pack easy to open food packaging.  Once again, this will reduce the amount of hands that touch the child’s food.

Lastly, parents should pack portable hand sanitizers and anti-bacterial wipes for their child.  In addition to encouraging frequent hand washing and sanitizing, parents should teach their child to wipe down surfaces.  Students should sanitize their desk each morning, the lunch table they are eating at, computer keyboards they are using, and any other surfaces that other individuals will be touching as well.  It is important, in an attempt to prevent further spread of COVID-19, for students take proactive measures to protect their own health.

These are just some suggestions for protecting children while attending in-person classes.  This is by no means an exhaustive list and parents should take into consideration risk factors, including asthma and autoimmune disorders, when deciding how to approach this school year.

School Buses

The return of in-person instruction brings more concerns than just those of the classroom and school building.  In-person instruction brings with it the use of school buses.  The Georgia statutory code (O.C.G.A.) details provisions concerning school buses and the liability associated with them.  O.C.G.A. § 20-2-1090 authorizes school districts to create insurance policies to insure students in the event of an accident. Additionally, O.C.G.A.  § 40-6-163 requires vehicles to stop when children are getting on or getting off school buses, and in turn penalizing drivers who do not.  The pieces of legislation do not waive the sovereign immunity detailed by the Georgia’s constitution, but, rather, find ways to provide compensation for potential injuries without the school board accepting liability for negligent actions.

As school buses are under the control of the school district, school bus drivers also enjoy the same sovereign immunity as other county employees.  With this said, it is up to the individual students to protect themselves from exposure to COVID-19, as there is no redress for negligent infection on the part of the bus driver.  Even under the best of circumstances, it is hard to control the spread of a simple cold or the flu when children are confined to such a small space.  Parents should encourage their children to space out as much as possible, wear a mask, and wipe down their seat before sitting down in order to ensure the least amount of contact with germs.

Parents’ Choice

The start of school will be a new experience for parents, students, and teachers alike.  Whether school is virtual or in-person, the risks of contracting COVID-19 impact the education-related decisions that parents make for their children.  In addition to the typical considerations of private versus public, liability insurance, and academic curriculum, parents must now consider how facilities are addressing CDC guidelines and how to best protect their child from contracting the virus.  Parents must look to executive orders, policies and regulations posted by school boards and Bright from the Start, as well as individual classroom functioning.  All of these considerations are understandably overwhelming for parents, but hopefully this post provides ample resources for making an informed decision.  The following resources are excellent sources of information on COVID-19 and requirements for in-person schooling:


Executive Order


Bright from the Start, COVID-19 Protocols


Georgia Department of Education, COVID-19 Protocols


Georgia Personal Injury Lawyers Offering Free Consultations

As Georgia citizens navigate through these uncertain times, the Williams Elleby Howard & Easter legal team wants everyone to know that we are working hard to keep our offices clean and sanitary for our clients and visitors. If you or a loved one have been injured due to someone else’s negligence, we offer free consultations with our lawyers. The consultations can be in person, by phone, or virtually by Zoom. If you prefer in person meetings, please be aware that a face mask is required for the safety of our staff and guests. Simply call 833-LEGALGA (833-534-2542) to set up your consultation today.