Patricia Holland v. Cypress Insurance Company ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13538
____________________
PATRICIA HOLLAND,
the surviving mother of Kip Eugene Holland,
WAYNE HOLLAND,
Administrator of the estate of Kip Eugene Holland, deceased,
Plaintiffs-Appellees,
versus
CYPRESS INSURANCE COMPANY,
KERI BELL,
Administrator of the Estate of James Wendell Harper,
deceased,
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2 Opinion of the Court 20-13538
Defendants-Appellants,
JW HARPER FARMS, et al.,
Defendants.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:17-cv-00120-RWS
____________________
Before WILLIAM PRYOR, Chief Judge, JORDAN, and ANDERSON, Cir-
cuit Judges.
PER CURIAM:
This is an appeal of a jury verdict in favor of plaintiffs Patricia
Holland and the estate of her son, Kip Holland (collectively re-
ferred to as “Holland”). Holland sued the estate of James Harper
(“Harper”) and his insurer, Cypress Insurance Company (“Cy-
press”), for negligence. In December 2016, Harper was driving a
tractor-trailer when he veered off the road, causing the trailer to
detach and then to strike and kill Kip Holland. A jury awarded Hol-
land $13 million for wrongful death, $2 million for pain and suffer-
ing, and $29,363 in medical and funeral expenses. The jury also
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20-13538 Opinion of the Court 3
found that Harper had acted in bad faith, necessitating a second
phase of the trial on attorney fees. The jury then awarded Holland
$6 million in attorney fees.
Harper and Cypress (collectively referred to as “Appellants”)
have appealed the jury verdict and damages awards, making five
separate arguments. First, the district court erred by denying their
motions for a directed verdict and motion for judgment notwith-
standing the verdict (“JNOV”) because Holland provided insuffi-
cient evidence that the accident resulted from anything other than
an unforeseen medical emergency. Second, the $6 million attorney
fee award must be vacated because (a) no evidence of bad faith jus-
tified the award and (b) even if there were bad faith, the amount of
the award was unreasonable. Third, the $2 million pain and suffer-
ing award must be vacated because the district court improperly
instructed the jury that it could award damages for “actual pain and
suffering.” Fourth, the entire verdict must be set aside because Cy-
press should not have been forced to appear as a named party at
trial under Georgia’s direct-action statutes. Fifth, the entire verdict
must be set aside because Holland’s attorney made an improper
statement during his closing argument.
For the following reasons, we conclude that Appellants’ ar-
guments lack merit, except we express no opinion on the reasona-
bleness of the amount of the attorney fee award. We affirm the
judgment of the district court except with respect to the issue of
the $6 million attorney fee award. Accordingly, we affirm the jury
verdict and the damages awards for wrongful death, pain and
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4 Opinion of the Court 20-13538
suffering, and medical and funeral expenses. We also hold that
there was sufficient evidence of bad faith to warrant a fee award
under Georgia law. But we vacate the $6 million attorney fee
award for the district court to reconsider its reasonableness in light
of two recent opinions from the Georgia Court of Appeals.
I.
On December 8, 2016, Harper was driving a tractor-trailer
in Gainesville, Georgia. His daughter, Annette Bell, testified at trial
that Harper had to end a phone call with Bell’s stepmother that
morning because he started coughing. Scott Carpenter, who was
driving behind Harper for the 1.5–2 miles before the crash, also tes-
tified at trial that Harper was driving “erratically, even to the point
of one time crossing over into oncoming traffic” and running an-
other truck “off the road into some gravel.” He said the tractor-
trailer “[s]eemed to just have a hard time maintaining lane, it was
making some jerky motions.” Eventually, the tractor-trailer over-
turned, causing the trailer to detach and to strike and kill Kip Hol-
land. A business’s security camera recorded the wreck, and this
footage showed that Kip Holland saw the trailer headed towards
him before impact. Lew–Anne MacArthur, who lived across the
street but who did not see the crash, noticed Kip Holland’s body
on the ground behind the trailer several minutes after the wreck.
She and two other witnesses “heard him moan just once”; she
“didn’t know whether he was alive,” though she said that “he didn’t
seem to be conscious.”
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Four months prior to the accident, on August 1, 2016, Har-
per completed a required Federal Motor Carrier Safety Administra-
tion (“FMCSA”) Medical Examination to maintain his commercial
driver’s license. At that time, he filled out a Department of Trans-
portation (“DOT”) “Medical Examination Report Form.” On that
form, Harper concealed parts of his medical history, including a
past brain aneurysm, lung disease (COPD), sleep apnea, chronic
back pain, coughing fits, and blackouts. Harper’s primary physi-
cian stated that he did not know Harper was a smoker, used a
breathing machine in his truck, and had been hospitalized with
COPD exacerbation on November 7, 2016. Based in part on his
inaccurate DOT form, Dr. Larry Johnston cleared Harper to drive.
Harper also had a prescription for 120 pills of hydrocodone
to be taken 4 times a day and refilled every 30 days. But on his
DOT form, he said “No” in response to the question, “Are you cur-
rently taking medications.” Bell testified at trial that Harper told
her that he did not take hydrocodone before he drove but would
take it on his off days and weekends. But she acknowledged that,
based on Harper’s notebook where he recorded his fuel stops, he
drove approximately 9,000 miles during the month before the
crash.
Holland sued Harper and Cypress in June 2017. Cypress was
joined as a party-defendant under Georgia’s direct-action statutes.
See O.C.G.A. § 40-1-112(c) (“It shall be permissible under this part
for any person having a cause of action arising under this part to
join in the same action the motor carrier and the insurance carrier,
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6 Opinion of the Court 20-13538
whether arising in tort or contract.”); id. § 40-2-140(d)(4) (“Any per-
son having a cause of action, whether arising in tort or contract,
under this Code section may join in the same cause of action the
motor carrier and its insurance carrier.”).
Before trial, Appellants filed a motion in limine seeking, in
part, to suppress arguments about, and testimony concerning, Har-
per’s liability insurance—particularly evidence regarding the dollar
limit of Harper’s policy. However, Appellants “stipulate[d]” that
Cypress issued a policy to Harper and that “the policy goes into the
record.” Per Appellants’ understanding of Georgia’s direct-action
statutes, “Cypress [was] a party solely to act as surety for a verdict
against Mr. Harper’s estate.” They reiterated this view of Georgia’s
direct-action statutes at the pretrial conference. The district court
granted this portion of Appellants’ motion in limine. At trial, Ap-
pellants never objected that Holland’s counsel violated this order.
The parties proceeded to trial on a single count of negligence
for compensatory damages plus attorney fees under O.C.G.A.
§ 13-6-11 based on Harper’s bad faith. After Holland’s case rested,
Appellants moved for a directed verdict on two issues: (1) no evi-
dence was presented regarding Kip Holland’s conscious pain and
suffering because MacArthur testified that he was nonresponsive
and (2) no evidence existed regarding Harper’s bad faith, so attor-
ney fees should not be awarded. After Appellants presented their
case on the third day of the trial, they again moved for a directed
verdict, this time on three issues. First, they reiterated their con-
scious pain and suffering argument, which the court rejected again.
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20-13538 Opinion of the Court 7
Second, they argued for a directed verdict for Cypress because Hol-
land failed to prove that the insurance policy Cypress issued to Har-
per was “on file with the appropriate state agency.” According to
Appellants, a 1987 Georgia Court of Appeals decision concerning a
predecessor of § 40-1-112 required plaintiffs in direct-action cases to
prove that the insurance policy existed and was on file with the ap-
propriate state agency. Glenn McClendon Trucking Co., Inc. v.
Williams, 359 S.E.2d 351 (Ga. Ct. App. 1987). Holland’s counsel
responded that the current direct-action statutes—which the Geor-
gia legislature passed after 1987—eliminated this requirement. The
district judge deferred ruling on this argument at the time, though
he eventually rejected it. 1 Third, Appellants reraised their argu-
ment that bad faith did not exist, and the court rejected it again.
After the third day of trial, Appellants’ counsel filed a letter
with the court providing another argument for a directed verdict:
Harper was an interstate carrier, but O.C.G.A. § 40-2-140 “is only
appropriate to intrastate carriers.” The letter also says, “Cypress is
not asserting the defense that [Holland’s] claims fail because Cy-
press did not file the certificate” because Appellants acknowledged
that a “provision” in O.C.G.A. § 40-1-112 “eliminate[d] a loophole
1
Appellants did not raise this argument (i.e., that Holland failed to prove the
insurance policy was filed with the appropriate state agency) in its post-verdict
JNOV motion. The district court noted that Appellants “fail[ed] to fully de-
velop this legal position” in their JNOV motion, so it found that Appellants
had “abandoned the argument.”
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8 Opinion of the Court 20-13538
allowing an insurance company to violate the requirement to file a
certificate to avoid direct action.”2 It then quotes language from
the Unified Carrier Registration Act of 2005 and says that language
“preempts” O.C.G.A. § 40-1-112. On the fourth day of trial, the
district court accepted the letter into the record and rejected its ad-
ditional argument. 3
Before closing arguments on the fourth day of the trial, the
parties discussed what stipulated facts should be read to the jury, at
which time Appellants’ counsel said, “I’m just concerned about un-
duly emphasizing liability insurance in this case.” Before Holland’s
closing argument, Appellants’ counsel reiterated the argument
from its motion in limine that Holland “cannot introduce the [in-
surance policy] limits in the case.” Appellants’ main concern
seemed to be that Holland’s counsel would emphasize Cypress’s
presence at the trial; however, Appellants’ counsel seemingly
agreed that “it’s appropriate if [Holland’s counsel] wants to men-
tion it’s a direct action statute and the Court’s going to charge [the
2
Presumably, the “provision” that eliminated the loophole is the following
sentence from O.C.G.A. § 40-1-112(a): “The failure to file any form required
by the department shall not diminish the rights of any person to pursue an
action directly against a motor carrier’s insurer.” But the letter is far from clear
on this point.
3
The district court again rejected the additional argument in the letter (i.e.,
that Harper was an interstate carrier, but O.C.G.A. § 40-2-140 only allowed
direct actions against insurers of intrastate carriers) in its denial of Appellants’
JNOV motion.
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20-13538 Opinion of the Court 9
jury that Cypress is] a proper defendant and if your verdict’s against
Mr. Harper it’s a verdict against the insurance company.” The dis-
trict court agreed and instructed Holland’s counsel to “tread at
your own risk,” stating,
You can’t push the insurance matter. They are a
party, you can state that they are responsible for any
judgment in the case, I think that’s fair game. But ob-
viously policy limits is way out of bounds. But the
fact that they are a party and that they are -- a judg-
ment could be rendered against them and they’re re-
sponsible for the judgment, that’s fair game, okay?
Appellants’ counsel voiced no objections to this.
In Holland’s closing argument, counsel addressed the pain
and suffering damages and pointed to (a) the two seconds in the
video of the crash where Kip Holland saw the trailer hurtling to-
wards him and (b) MacArthur’s testimony that Kip Holland had
moaned. Holland’s counsel said, “That’s pain and suffering, ladies
and gentleman.” He later said, “The fear, fright, shock of impact,
the final two seconds of Kip Holland’s life, . . . that fear, shock,
fright of impact, his final two breaths, that’s worth $2 million . . . .”
He also told the jury, “Our burden is met. All we have to do is tilt
the scale. Did Mr. Harper leave his lane of travel? Did Mr. Harper
kill Kip Holland?” Defense counsel objected that this statement
“misstates the law,” to which the district court responded, “The
Court will instruct the jury on the law and you will follow my in-
structions.”
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10 Opinion of the Court 20-13538
After closing arguments, the district court instructed the
jury, inter alia, on pain and suffering damages:
Pain and suffering is a legal item of damages. The
measure is the enlightened conscience of fair and im-
partial jurors. Questions of whether, how much, and
how long plaintiffs’ decedent suffered are for you to
decide. Pain and suffering includes mental suffering.
In evaluating Kip Holland’s pain and suffering, you
may consider the following factors, if proven: fear,
fright, shock of impact, actual pain and suffering, and
mental anguish. There’s no requirement that physi-
cal injury precede mental pain and suffering.
After dismissing the jury for deliberations, defense counsel ob-
jected to the court’s pain and suffering instruction “based on [their]
motion for directed verdict on no conscious pain and suffering.”
Defense counsel also reiterated their objection to bad faith attorney
fees. He then motioned for mistrial (1) “on the basis of the liability
insurance . . . on the basis of our motion for directed verdict”;
(2) “on the attorney’s fees”; and (3) because Holland’s counsel
“misstated the burden of proof, just saying all he’s got to prove is
the truck went off the road.” The court denied that motion.
The jury found in Holland’s favor; awarded the plaintiffs $13
million for wrongful death, $2 million for pain and suffering, and
$29,363 for medical and funeral expenses; and found that Harper
had acted in bad faith. Because of the bad faith finding, the court
proceeded to a second phase of the trial to determine the amount
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20-13538 Opinion of the Court 11
of attorney fees owed. After hearing Holland’s evidence concern-
ing litigation expenses, the court instructed the jury,
Based upon your finding of bad faith on the part of
Defendant James Harper, the plaintiffs are entitled to
recover their reasonable expenses of litigation. The
plaintiffs must prove by a preponderance of the evi-
dence the actual cost of plaintiffs’ attorney’s fees and
the reasonableness of those costs.
A contingency fee agreement is a guidepost to the rea-
sonable value of the services the lawyer performed.
However, you are not bound to that fee in your de-
liberations. In addition to attorney’s fees, plaintiffs
may recover other costs reasonably incurred in the
case.
Neither party objected to these instructions. After deliberating, the
jury awarded Holland $6 million in attorney fees.
After trial, Appellants filed a motion for JNOV or, in the al-
ternative, for a new trial. The district court rejected both Appel-
lants’ request for JNOV and request for a new trial.
II.
We will now address each of Appellants’ five arguments on
appeal. Four of the arguments lack merit. And we express no view
as to the merit of the fifth, the reasonableness of the attorney fees.
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12 Opinion of the Court 20-13538
A. Negligence
Appellants’ first argument is that Holland did not present
sufficient evidence that the crash resulted from anything other than
an unforeseen medical emergency. We review de novo a district
court’s denial of a motion for JNOV, “applying the same legal
standard as the district court.” Bianchi v. Roadway Express, Inc.,
441 F.3d 1278, 1282 (11th Cir. 2006). “A [JNOV] is permissible only
when, without weighing the credibility of witnesses, the facts and
inferences point so strongly and overwhelmingly in favor of one
party, that a reasonable jury could not arrive at a contrary verdict;
where substantial conflicting evidence exists in the record, a
[JNOV] is improper.” Rixey v. West Paces Ferry Hosp., Inc., 916
F.2d 608, 611 (11th Cir. 1990). “When deciding a motion for JNOV,
the district court must view the evidence in the light and with all
reasonable inferences most favorable to the party opposed to the
motion.” Id. When deciding whether the evidence overwhelm-
ingly favors one party, “the judge is not permitted to weigh the ev-
idence which has been introduced on both sides”; rather, “she is
obliged to make a prior, more basic determination of whether any
credible evidence has been proffered by the non-moving party.”
Rabun v. Kimberly-Clark Corp., 678 F.2d 1053, 1057 (11th Cir.
1982).
We cannot conclude that “the facts and inferences point so
strongly and overwhelmingly in favor of” Appellants such that the
jury could not have found that Harper acted negligently. Rixey,
916 F.2d at 611. Indeed, the evidence of negligence seems
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20-13538 Opinion of the Court 13
overwhelming. First, Carpenter, the eyewitness who was driving
behind Harper, said Harper was driving “erratically” for at least
1.5–2 miles before the crash; he even crossed the center line “into
oncoming traffic” and ran another truck “off the road.” Second, in
that 1.5–2-mile stretch of road, Harper had multiple opportunities
to pull over, but he did not. Third, Harper lied on his DOT form
about his medical history and use of prescription medication.
Fourth, the jury could have reasonably concluded that Harper was
taking hydrocodone while driving. He had a prescription for 120
pills to be taken 4 times a day, and there was evidence on the basis
of which the jury could find that he refilled the prescription every
30 days. His daughter testified that he told her that he did not take
his hydrocodone pills on the days he drove, but Harper’s records
indicate that he drove approximately 9,000 miles over the course
of 16 days the month prior to the accident. The jury could reason-
ably conclude that Harper may have taken his hydrocodone pills
while driving, notwithstanding his daughter’s testimony to the
contrary.
Appellants argue that Holland needed to prove a specific act
of negligence beyond merely veering off the road. However, the
case they cite for support merely says that a trial court “should
clearly inform the jury that it is their duty to determine not only
whether the act or acts were committed, but also, if committed,
whether the same amounted to negligence.” Critser v. McFadden,
593 S.E.2d 330, 332 (Ga. 2004) (quoting Hughes v. Brown, 136
S.E.2d 403, 404 (Ga. Ct. App. 1964)). Appellants cite no case
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14 Opinion of the Court 20-13538
suggesting that a reasonable jury could not find negligence based
on the foregoing facts. See, e.g., Metro. Atlanta Rapid Transit
Auth. v. Morris, 779 S.E.2d 726, 730 (Ga. Ct. App. 2015) (stating
that evidence “that the bus driver failed to maintain his
lane . . . was sufficient to establish negligence on the part of the
driver”).
At trial, Appellants argued that the accident was the result of
an “act of God,” which is an affirmative defense to liability under
Georgia law. The district court determined that there was no basis
to disturb the jury’s implicit finding that Appellants failed to prove
this affirmative defense. On appeal, Appellants argue that the dis-
trict court erred because (a) Carpenter testified that Harper ap-
peared to “have had a medical emergency” before the accident,
(b) the Georgia Department of Public Safety crash report stated
that Harper’s condition at the time of crash was “ill (sick) or
fainted,” and (c) Harper’s physicians testified that he did not have
any preexisting conditions that would have made a sudden medical
emergency foreseeable.
We agree with the district court. The “act of God” defense
has three elements that Appellants must prove: the driver must
have (i) suddenly and (ii) unforeseeably (iii) lost consciousness or
control of the vehicle. Lewis v. Smith, 517 S.E.2d 538, 540 (Ga. Ct.
App. 1999). Appellants’ assertion of this defense boils down to
speculation: because Holland has not proven what caused Harper’s
erratic driving—be it a coughing fit, black out, or drug use—the
accident could not have “resulted from anything other than an
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20-13538 Opinion of the Court 15
unforeseen medical emergency.” Appellants confuse the burden of
proof: “a defendant . . . may not rely upon an absence of evidence
in the record disproving the affirmative defense but must carry the
burden of affirmatively proving the defense.” Id.Appellants have not demonstrated even one element of the
“act of God” defense. The evidence suggests that whatever caused
Harper’s negligent driving was not sudden. He drove for 1.5–2
miles in an erratic manner before the accident. Even if he suffered
an unforeseeable medical emergency, a reasonable jury could have
concluded that the emergency was not sudden. Such a finding
would defeat the defense. See id. (“[E]ven if loss of consciousness
was not foreseeable, it would still not be a complete defense if the
evidence showed the loss of consciousness occurred, not suddenly,
but in a manner that would have allowed a reasonable driver to
take some action to avoid the ensuing accident.”).
Moreover, Appellants’ evidence does not “strongly and
overwhelmingly” support their theory. Rixey, 916 F.2d at 611.
They point to Carpenter’s testimony and the Georgia Department
of Public Safety crash report. Carpenter told the 911 operator that
Harper appeared to “have had a medical emergency” based on his
driving. However, Carpenter also testified that he initially did not
call 911 upon seeing Harper’s erratic driving because Harper could
have been “on [his] cell phone or something like that.” Even if we
assume that Carpenter correctly inferred that Harper suffered a
medical emergency (something we cannot do because we draw all
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16 Opinion of the Court 20-13538
inferences in favor of the non-moving party), such evidence does
not establish that it was sudden.
This reasoning equally applies to the crash report, which
states that Harper’s condition after the crash was “ill (sick) or
fainted.” Harper’s condition after the crash does not prove that he
suddenly lost consciousness before the crash; he could have been
knocked unconscious during the crash. When reviewing a denial
of JNOV, we draw “all reasonable inferences most favorable to the
party opposed to the motion”—here, Holland. Id. Accordingly,
neither the crash report nor Carpenter’s testimony warrants a re-
versal of the jury verdict based on the “act of God” defense.
Additionally, even if Harper suddenly lost consciousness,
Appellants have not shown that such a medical event was unfore-
seeable. They rely on the testimony of Harper’s doctors that he
“did not have any pre-existing conditions which would have made
such a medical emergency foreseeable.” However, Harper’s pri-
mary physician did not know about the entirety of Harper’s habits
and medical situation. Even assuming there is some evidence of an
unforeseen medical emergency, the evidence at least equally sup-
ports Holland’s theory that it was caused by a coughing fit brought
on by Harper’s COPD, which he aggravated by smoking. For ex-
ample, Bell testified that Harper had to end a phone call with Bell’s
stepmother the morning of the crash because he started coughing.
We conclude that the district court correctly denied Appel-
lants’ JNOV motion because they cannot prove that the evidence
presented at trial “strongly and overwhelmingly” supports their
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20-13538 Opinion of the Court 17
“act of God” defense. Id. This conclusion applies with equal force
to the district court’s denial of Appellants’ alternative motion for a
new trial, which we review for abuse of discretion. Kerrivan v. R.J.
Reynolds Tobacco Co., 953 F.3d 1196, 1204 (11th Cir. 2020).
B. Bad Faith and Attorney Fees
Appellants’ second argument is that the district court erred
by denying their directed verdict motions and motion for JNOV on
the attorney fees issue because (i) there was insufficient evidence
of bad faith to justify attorney fees under O.C.G.A. § 13-6-11 and
(ii) even if bad faith was shown, the $6 million award was unrea-
sonable.
i. Sufficient evidence of bad faith existed.
Georgia law authorizes an award of attorney fees and litiga-
tion expenses “where the defendant has acted in bad faith.”
O.C.G.A. § 13-6-11. Georgia courts have defined bad faith as fol-
lows:
Bad faith cannot be prompted by an honest mistake
as to one’s rights or duties but must result from some
interested or sinister motive. Bad faith is not simply
bad judgment or negligence, but it imports a dishon-
est purpose or some moral obliquity, and implies con-
scious doing of wrong, and means breach of known
duty through some motive of interest or ill will.
Wilson v. Redmond Constr., Inc., 860 S.E.2d 118, 123 (Ga. Ct. App.
2021) (quoting Metro. Atlanta Rapid Transit Auth. v. Mitchell, 659
S.E.2d 605, 608 (Ga. Ct. App. 2007)). To justify an award of
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18 Opinion of the Court 20-13538
attorney fees, the bad faith “must relate to the acts in the transac-
tion itself prior to the litigation, not to the motive with which a
party proceeds in the litigation.” David G. Brown, P.E., Inc. v.
Kent, 561 S.E.2d 89, 90 (Ga. 2002). Whether bad faith exists is a
question for the jury, so an award of attorney fees under O.C.G.A.
§ 13-6-11 “is to be affirmed if there is any evidence to support it.”
City of Gainesville v. Waters, 574 S.E.2d 638, 644 (Ga. Ct. App.
2002) (quoting S. Med. Corp. v. Willis, 391 S.E.2d 803, 805 (Ga. Ct.
App. 1990)).
The district court identified three grounds for the jury’s find-
ing of bad faith: (1) Harper’s misrepresentations of his medical his-
tory on the DOT form, (2) his failure to pull over during the 1.5–2-
mile stretch where he was driving erratically, and (3) evidence that
Harper may have been taking hydrocodone while driving. We
agree that each of these three grounds satisfies the “any evidence”
standard. Id.Appellants do not contest that Harper misrepresented his
medical history on his DOT form. At trial, the jury heard evidence
from Dr. Johnston’s deposition. Dr. Johnston stated that the pur-
pose of required medical examinations is to assess the driver’s “abil-
ity to safely drive a vehicle.” Harper’s misrepresentation of his
medical history, therefore, is evidence of bad faith under Georgia
law. See Windermere, Ltd. v. Bettes, 438 S.E.2d 406, 409 (Ga. Ct.
App. 1993) (“Evidence that appellants failed to comply with man-
datory safety regulations promulgated for the benefit of appellees
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20-13538 Opinion of the Court 19
is some evidence that appellants acted in bad faith in the transac-
tion . . . .”).
Appellants argue that even if Harper had fully disclosed his
medical history, he still would have been certified to drive his truck
commercially, so his misrepresentations were not a “cause” of the
crash and therefore do not “arise[] out of the transaction on which
the cause of action is predicated.” Wilson, 860 S.E.2d at 122 (quot-
ing Waters, 574 S.E.2d at 644). For at least two reasons, this argu-
ment is without merit. First, Dr. Johnston (who reviewed Harper’s
DOT medical examination form) testified that, although it is not
clear that truthful answers on the form would have disqualified
Harper, truthful answers would have triggered further investiga-
tion. A reasonable jury could find, on the basis of Dr. Johnston’s
testimony and the other evidence relating to Harper’s medical con-
ditions, that Harper would not have been certified to drive a trac-
tor-trailer truck for an interstate motor carrier. Second, even as-
suming Appellants’ argument that Harper might have been certi-
fied anyway, no Georgia case law holds that the bad faith acts must
cause the events underlying the litigation in order to “relate to the
acts in the transaction.” Kent, 561 S.E.2d at 90. To the contrary,
the Georgia Court of Appeals has upheld a jury finding of bad faith
where a MARTA bus “fled the scene” after colliding with plaintiff’s
vehicle. Morris, 779 S.E.2d at 731–32. If Appellants’ reading of the
bad faith requirement were true, that case would have come out
differently since fleeing the scene did not cause the crash.
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20 Opinion of the Court 20-13538
Additionally, even if the bad faith acts must have caused the
underlying accident, and even if Harper would have been certified
to drive despite his medical history, the second and third grounds
the district court cited independently satisfy the bad faith require-
ment. Harper drove erratically for 1.5–2 miles, and he could have
safely pulled over at several points on that route. Appellants assert
that his failure to pull over was caused by a medical emergency.
But this is speculation: Harper drove erratically for 1.5–2 miles, and
the jury reasonably could have found that he had the capacity to
pull over but chose not to, constituting an act of “moral obliquity.”
Wilson, 860 S.E.2d at 123. And as already explained, the jury also
could have found that Harper took hydrocodone the day of the
crash; taking a narcotic and driving would plainly satisfy the bad
faith standard.
Given the foregoing facts, Holland has more than satisfied
the “any evidence” standard for us to uphold the jury’s finding of
bad faith. Waters, 574 S.E.2d at 644; see also Am. Med. Transp.
Grp., Inc. v. Glo-An, Inc., 509 S.E.2d 738, 741 (Ga. Ct. App. 1998)
(“Only in the rare case where there was absolutely no evidence to
support the award of expenses of litigation would the trial court be
authorized to grant summary adjudication on such issues.”).
ii. The district court must reconsider the reasonableness of the
fee award in the light of intervening Georgia caselaw.
We will vacate the judgment of the district court to the ex-
tent it approved the jury’s $6 million award of attorney fees. Under
Georgia law, “an award of attorney fees is to be determined upon
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20-13538 Opinion of the Court 21
evidence of the reasonable value of the professional services which
underlie the claim for attorney fees.” Ga. Dep’t of Corr. v. Couch,
759 S.E.2d 804, 815–16 (Ga. 2014) (quoting S. Cellular Telecom v.
Banks, 433 S.E.2d 606, 608 (Ga. Ct. App. 1993)). The jury awarded
Holland’s counsel $6 million in attorney fees, which matches what
he would have earned as his contingency fee—40% of the $15 mil-
lion verdict.
In Couch, the Supreme Court of Georgia addressed the
weight courts may place upon a contingency fee agreement when
calculating the “reasonable value” of attorney fees. Id. at 816. The
court reasoned that the fee agreement is merely “a guidepost to the
reasonable value of the services the lawyer performed” and does
not “bind the opposing party required to pay the attorney fees, who
had no role in negotiating the agreement.” Id. In other words, a
contingency fee agreement alone, “without more, is not sufficient
to support the award of attorney fees”; rather, the party seeking
fees must provide other evidence of the value of the professional
services actually rendered. Id. (quoting Brandenburg v. All-Fleet
Refinishing, Inc., 555 S.E.2d 508, 512 (Ga. Ct. App. 2001)).
The Georgia Court of Appeals has recently decided two
cases concerning the reasonableness of attorney fee awards. Ken-
nison v. Mayfield, 856 S.E.2d 738 (Ga. Ct. App. 2021) (en banc); Ca-
jun Contractors, Inc. v. Peachtree Prop. Sub, LLC, 861 S.E.2d 222(Ga. Ct. App. 2021). Because the Georgia Court of Appeals issued
these opinions after the district court denied Appellants’ motion for
JNOV, we vacate the $6 million attorney fee award and remand the
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22 Opinion of the Court 20-13538
issue for the district court to reconsider the award’s reasonableness
in light of these recent cases. We will not comment on Kennison
or Cajun Contractors, Inc. nor on the reasonableness of the attor-
ney fee award in this case to avoid influencing the district court’s
reconsideration.
C. Pain and Suffering Damages
Appellants’ third argument is that the $2 million pain and
suffering award must be vacated because the district court improp-
erly instructed the jury that it could award damages for “actual pain
and suffering.” Appellants point to the district court’s instruction—
“[i]n evaluating . . . pain and suffering, you may consider the fol-
lowing factors, if proven: fear, fright, shock of impact, actual pain
and suffering, and mental anguish.” Appellants argue that, because
“actual pain and suffering” follows “fear” and other emotions that
would precede impact, the reference to “actual pain and suffering”
must refer to post-impact pain and suffering. But allowing the jury
to find post-impact pain and suffering, Appellants argue, was error
because there was no evidence that Holland was ever conscious
post-impact.
Our standard of review for a district court’s jury instructions
is “deferential”:
[W]e examine “whether the jury charges, considered
as a whole, sufficiently instructed the jury so that the
jurors understood the issues and were not misled.”
We will reverse the trial court because of an errone-
ous instruction only if we are “left with a substantial
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20-13538 Opinion of the Court 23
and ineradicable doubt as to whether the jury was
properly guided in its deliberations.”
Bearint ex rel. Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1351
(11th Cir. 2004) (citations omitted) (quoting Carter v. DecisionOne
Corp., 122 F.3d 997, 1005 (11th Cir. 1997)); see also W. Air Lines,
Inc. v. Criswell, 472 U.S. 400, 420, 105 S. Ct. 2743, 2755 (1985) (“Jury
instructions . . . ‘may not be judged in artificial isolation,’ but must
be judged in the ‘context of the overall charge’ and the circum-
stances of the case.” (quoting Cupp v. Naughten, 414 U.S. 141, 147,
94 S. Ct. 396, 400 (1973))).
For several reasons, we do not entertain “a substantial and
ineradicable doubt” as to whether the jury was properly guided by
the district court’s instruction on pain and suffering. The full text
of the pain and suffering instruction was as follows:
Pain and suffering is a legal item of damages. The
measure is the enlightened conscience of fair and im-
partial jurors. Questions of whether, how much, and
how long plaintiffs’ decedent suffered are for you to
decide. Pain and suffering includes mental suffering.
In evaluating Kip Holland’s pain and suffering, you
may consider the following factors, if proven: fear,
fright, shock of impact, actual pain and suffering, and
mental anguish. There’s no requirement that physi-
cal injury precede mental pain and suffering.
This mirrors Georgia’s pattern jury instruction for pain and suffer-
ing damages. Council of Superior Ct. Judges of Ga., Suggested Pat-
tern Jury Instructions 66.501 (5th ed. 2020). We reject Appellants’
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24 Opinion of the Court 20-13538
argument that the “actual pain and suffering” language necessarily
refers only to post-impact pain and suffering. The mere fact that
the language follows “fear” and other pre-impact emotions—i.e.,
the mere fact that the language is repetitive if it also includes
pre-impact emotions—has little significance in light of the fact that
the instruction is duplicative in several respects—e.g., “fear” and
“fright.” “Actual pain and suffering,” like the immediately follow-
ing “mental anguish,” pretty clearly includes both pre-impact and
post-impact suffering. Georgia law distinguishes between pre- and
post-impact pain and suffering, allowing damages awards for both
if supported by the evidence (e.g., consciousness). Curtis v. United
States, 274 F. Supp. 3d 1366, 1380 (N.D. Ga. 2017); Monk v. Dial,
441 S.E.2d 857, 859 (Ga. Ct. App. 1994).
Although we acknowledge that the instruction allowed the
jury to find, not only pre-impact pain and suffering, but also
post-impact pain and suffering, we reject Appellants’ argument that
that creates reversible error. We reject Appellants’ argument that
there is no evidence to support a finding of post-impact pain and
suffering. As the district court also noted, there is evidence justify-
ing the jury’s consideration of post-impact pain and suffering. Kip
Holland “was unattended for some period of time immediately fol-
lowing the accident”; also, MacArthur heard him “moan at least
once after she discovered him lying face down behind the tractor
trailer.” Under Georgia law, whether sufficient evidence existed to
“prove[]” that Kip Holland experienced “actual pain and suffering”
was for the jury to decide. Walker v. Daniels, 407 S.E.2d 70, 76
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20-13538 Opinion of the Court 25
(Ga. Ct. App. 1991). Accordingly, the district court correctly con-
cluded that there was “a legally sufficient basis to allow the jury to
consider whether Mr. Holland remained conscious for a period of
time, and whether or not he may have endured pain and suffering
after the collision.”
In any event, the district court clearly instructed the jury that
pain and suffering is recoverable only “if proven.” Thus, to the ex-
tent that the evidence of post-impact pain and suffering is weak,
there would be little likelihood that the jury would deem it
“proven.” Of course, we assume that the jury followed the judge’s
instructions.
Finally, there was very strong evidence of pre-impact pain
and suffering. The video which was played for the jury showed
Kip Holland looking at the tractor-trailer proceeding directly into
his path. Holland’s counsel based his claim for pain and suffering
damages squarely on this pre-impact experience. His closing argu-
ment described for the jury,
The fear, fright, shock of impact, the final two sec-
onds of Kip Holland’s life, the final two breaths right
there in the videos. Ladies and gentlemen, some sec-
onds are worth a whole lot more than others and Kip
Holland’s life as he watched that 80,000-pound mis-
sile hurl toward him, that fear, shock, fright of impact,
his final two breaths, that’s worth $2 million, ladies
and gentlemen.
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26 Opinion of the Court 20-13538
This section of the closing argument references the video recording
from a local business’s security camera which showed that Kip Hol-
land saw the trailer headed towards him before impact. Holland’s
counsel requested $2 million of pain and suffering damages based
explicitly on the pre-impact fear Kip Holland experienced, and the
jury awarded exactly that amount. Accordingly, the closing argu-
ment suggests that the $2 million jury award was based solely on
Holland’s pre-impact pain and suffering. For this reason also, we
do not harbor “a substantial and ineradicable doubt” that the jury
was improperly guided. Bearint, 389 F.3d at 1351.
For all the foregoing reasons, we cannot conclude that the
district court’s pain and suffering instruction misled the jury. We
are not left with a “substantial and ineradicable doubt as to whether
the jury was properly guided in its deliberations.” Id.D. Georgia’s Direct-Action Statutes
Appellants’ fourth argument is that the verdict against Cy-
press must be set aside because Cypress should not have been
forced to appear as a named party at trial under Georgia’s direct-ac-
tion statutes and that Harper is entitled to a new trial because Cy-
press’s presence caused severe prejudice. They also argue that
Georgia’s direct-action statutes do not apply in this case. In re-
sponse, Holland argues that Appellants abandoned any objection
to, and even stipulated to, Cypress’s presence at trial; that Georgia’s
direct-action statutes apply and allow insurers to appear as named
defendants at trial; and that Appellants abandoned their argument
that Georgia’s direct-action statutes do not apply. We agree that
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20-13538 Opinion of the Court 27
Appellants forfeited their arguments against (i) the direct-action
statutes’ applicability and (ii) Cypress’s presence as a named de-
fendant at trial.
Georgia has two direct action statutes: O.C.G.A.
§ 40-1-112(c) and O.C.G.A. § 40-2-140(d)(4). These statutes allow
joinder of an insurer in a claim against the insured to “creat[e] au-
tomatic liability in favor of a third party who may have a claim for
damages for the negligence of the [insured].” Andrews v. Yellow
Freight Sys., Inc., 421 S.E.2d 712, 713 (Ga. 1992). Appellants argue
that Harper was an interstate carrier, so Holland cannot bring a di-
rect action under § 40-1-112, which, according to Appellants, “ap-
plies only to intrastate trucking.” However, they concede on ap-
peal that § 40-2-140 applies to interstate carriers. See Daily Under-
writers of Am. v. Williams, 841 S.E.2d 135, 138–39 (Ga. Ct. App.
2020) (physical precedent only) (stating that § 40-2-140 “author-
ize[s] direct actions against insurers of motor carriers engaged in
interstate commerce”). However, they argue that it only allows
direct actions against insurers “where the carrier has not registered
as required by” the Unified Carrier Registration Agreement
(“UCRA”), which is an interstate compact to coordinate the regis-
tration of motor carriers and commercial vehicles. In other words,
Appellants argue that only causes of action implicating a violation
of the registration requirement arise under § 40-2-140.
We first address Appellants’ arguments concerning
O.C.G.A. § 40-2-140. Their argument that it allows direct actions
only for registration violations of the UCRA is plainly a new
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28 Opinion of the Court 20-13538
argument raised for the first time on appeal. Appellants did not
raise this argument in their oral motions for directed verdict or in
their motion for JNOV. Before the district court, they argued that
the direct-action statutes did not apply because Holland failed to
prove that the insurance policy Cypress issued to Harper was “on
file with the appropriate state agency.” The district court rejected
that argument before closing arguments, and Appellants did not
raise it again in their motion for JNOV. The district court deemed
the argument abandoned, supra note 1, and Appellants have not
raised it on appeal.
Before the last day of trial, Appellants’ counsel sent a letter
to the district court arguing that Harper was an “interstate” motor
carrier and that “direct action under section 40-2-140 is only appro-
priate to intrastate carriers.” This contradicts their concession on
appeal that § 40-2-140 “applies to interstate trucking.” And at no
point in their letter, in their motions for directed verdict and JNOV,
or elsewhere in the district court did Appellants argue that
§ 40-2-140 allowed only direct actions for registration violations of
the UCRA. Accordingly, they have forfeited that argument and
cannot pursue it on appeal. Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004).
Because Appellants argue that Harper was an interstate car-
rier, and because they concede that § 40-2-140 allows direct actions
against the insurers of interstate carriers, they cannot maintain that
§ 40-2-140 does not allow Holland to sue Cypress. Our conclusion
with regard to § 40-2-140 makes addressing Appellants’ arguments
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20-13538 Opinion of the Court 29
concerning § 40-1-112 unnecessary because Holland can bring their
suit against Cypress under either direct-action statute. See Nat’l
Indem. Co. v. Lariscy, 835 S.E.2d 307, 311 (Ga. Ct. App. 2019)
(“Georgia has codified statutory exceptions to this rule, the direct
action statutes, which permit a direct action by an injured party
against an insurance carrier which insures a motor carrier.”).
Appellants final argument on appeal based on the direct-ac-
tion statutes is that, even if the direct-action statutes apply, the dis-
trict court improperly allowed Cypress to be a named defendant at
trial, resulting in prejudice to Harper. Appellants forfeited this ar-
gument, too. Moreover, they stipulated to Cypress’s presence at
trial.
Appellants say that they “repeatedly objected to emphasiz-
ing the issue of insurance coverage to the jury.” They point to four
instances in the record: (1) their motion in limine, (2) statements at
the pretrial conference, (3) their concerns raised during the charge
conference at trial, and (4) their motions for directed verdict. But
in none of these instances did Appellants make the argument they
are making now: that even if the direct-action statutes apply, Cy-
press should not have appeared at trial as a named defendant or
otherwise should have been hidden from the jury.
First, the motion in limine sought to suppress arguments
about the dollar limit of Harper’s insurance policy. Appellants
acknowledged that “Cypress [was] a party solely to act as surety for
a verdict against Mr. Harper’s estate.” The district court granted
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30 Opinion of the Court 20-13538
this motion in limine, and Appellants never objected that Holland’s
counsel violated that order.
Second, at the pretrial conference, the parties were debating
a motion in limine regarding a claim about spoliation of evidence,
and Appellants’ counsel reiterated his understanding of Georgia’s
direct-action statutes—i.e., that they make Cypress “a surety in the
case” and “eliminat[e] the step” where a plaintiff has to get a judg-
ment against the tortfeasor before suing the insurance company.
Nowhere in the pretrial conference transcripts do Appellants argue
that Cypress’s mere presence at trial should be precluded.
Third, at the charge conference, Appellants objected to in-
structing the jury that “Georgia law establishes an independent
cause of action against a motor carrier’s insured.” They then clari-
fied their position as follows: “I kind of want to discuss what’s fair
ground and what’s not fair ground about arguing liability insur-
ance, because our position is in a direct action case you just get to
say, yeah, the defendant had insurance. Boom.” They argued that
a direct action does not “open the door for the plaintiffs to start
arguing liability insurance” because it is prejudicial. The district
court seemed to agree, and asked Appellants the following:
I think the jury’s entitled to know why are they here
and what does this mean, what does our verdict mean
in terms of against whom are we finding.
I mean, you tell me how you want me to say it, but is
it that if the defendants are liable, the insurance com-
pany’s liable? You tell me how to say it. But
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20-13538 Opinion of the Court 31
otherwise the jury, the question I can foresee is how
does the insurance company fit in with this? Because
all the descriptions about negligence and fault and all
those things are about Mr. Harper.
Appellants’ counsel responded: “I guess if the Court were to say if
the jury finds against Mr. Harper’s estate, then the verdict will also
be against Cypress Insurance Company. I think that’s all we have
to say. I’m just concerned that this paragraph is expansive and em-
phasizes liability insurance and that’s our concern.” Appellants’
counsel even told the court, “I like what you just proposed.” Based
on this exchange, Appellants’ concern was overemphasizing liabil-
ity insurance, but they consented to the district court’s informing
the jury why Cypress was a defendant at the trial.
Fourth, in their opening brief on appeal, Appellants state
that they “sought a mistrial because Cypress was not let out of the
trial.” Here’s what Appellants actually said to the district court:
“[W]e move for a mistrial on the basis of the liability insurance.
That’s on the basis of our motion for directed verdict.” But the
basis of their directed verdict motion was that Holland failed to
prove that the insurance policy Cypress issued to Harper was “on
file with the appropriate state agency,” which they argued was a
requirement under the direct-action statutes. As explained earlier,
the district court rejected that argument, and Appellants aban-
doned it in their motion for JNOV. Supra note 1. Therefore, Ap-
pellants did not “[seek] a mistrial because Cypress was not let out
of the trial”; that argument was never made in the district court.
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32 Opinion of the Court 20-13538
Appellants have failed to identify an instance below where
they argued that Cypress should not appear at trial at all. Moreo-
ver, they cannot point to a specific ruling of the district court that
should be reversed. Appellants try to specify an erroneous decision
in their reply brief: they say it was error for the district court to
“plac[e] Cypress on the verdict form.” But this belies their state-
ments before the district court. When objecting to the charge that
“Georgia law establishes an independent cause of action against a
motor carrier’s insured,” they said, “If the Court finds that they’re
[i.e., Cypress] a proper party, the verdict form takes care of that.”
Apart from failing to preserve the argument they are making on
appeal, Appellants seemingly stipulated that if the district court
found that the direct-action statutes applied, then it could list Cy-
press on the verdict form.
In summary, Appellants’ argument that § 40-2-140 is limited
to causes of action involving violations of the registration require-
ment was plainly raised for the first time on appeal and is therefore
forfeited. Moreover, Appellants stipulated, at several points, to Cy-
press’s presence at trial. They have not identified a single ruling of
the district court that we should overturn. Accordingly, the district
court did not commit reversible error by allowing Holland to bring
a direct action against Cypress.
E. Closing Argument
Appellants’ final argument is that the entire verdict must be
vacated because it was tainted by an improper statement made dur-
ing Holland’s closing argument. During his closing argument,
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20-13538 Opinion of the Court 33
Holland’s counsel said the following: “So I want you to listen
closely when the judge gives you instructions. Our burden is met.
All we have to do is tilt the scale. Did Mr. Harper leave his lane of
travel? Did Mr. Harper kill Kip Holland?” Appellants’ counsel ob-
jected that this misstated the law, so the district judge told the jury,
“The Court will instruct the jury on the law and you will follow
my instructions.” After closing arguments, Appellants moved for
a mistrial because Holland’s “counsel misstated the burden of
proof, just saying all he’s got to prove is the truck went off the
road.”
On appeal, Appellants reiterate their argument that Hol-
land’s counsel misstated the law because the jury must determine
both whether the alleged acts were committed and also whether
those acts amounted to negligence. Accordingly, it was error for
Holland’s counsel to say that all he had to prove was that Harper
left his lane of travel and killed Kip Holland. Appellants assert that
this misstatement was “extraordinarily prejudicial” because it
amounted to an instruction for the jury to disregard Appellants’
“act of God” defense. They further argue that the court’s curative
instruction to the jury did not sufficiently resolve the closing argu-
ment’s prejudicial effect.
We review the denial of a motion for mistrial based on an
improper closing argument for abuse of discretion. See Allstate Ins.
Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (“[T]he trial judge
is given considerable discretion to control the tone of counsels’ ar-
guments and, absent an abuse of discretion, the decision of the trial
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34 Opinion of the Court 20-13538
court, which has had the opportunity to hear the offensive remarks
within the context of the argument and to view their effect on the
jury, should not be disturbed.”). We cannot conclude that Hol-
land’s counsel’s closing statement incurably prejudiced the jury.
First, as we have already explained, Appellants have not es-
tablished that counsel’s statement was incorrect. See Morris, 779
S.E.2d at 730 (stating that evidence “that the bus driver failed to
maintain his lane . . . was sufficient to establish negligence on the
part of the driver”). Nor did the statement instruct the jury to dis-
regard the “act of God” defense. Instead, counsel implied only that
the evidence he mentioned would satisfy Holland’s burden of
proof (i.e., “tilt the scale”). Second, to the extent that this statement
misinformed the jury, the court cured that defect by telling them
that the court would instruct them on the law and that they were
to follow the court’s instruction. See United States v. Simon, 964
F.2d 1082, 1087 (11th Cir. 1992) (“A curative instruction purges the
taint of a prejudicial remark because ‘a jury is presumed to follow
jury instructions.’” (quoting Adams v. Wainwright, 709 F.2d 1443,
1447 (11th Cir. 1983))). 4 The district court later charged the jury
4
Appellants try to distinguish Simon by saying that the court there gave “re-
peated” instructions whereas here the district court gave only a brief instruc-
tion on the elements of negligence. This argument ignores our presumption
that the jury follows the court’s instructions—whether given once or repeat-
edly. Significantly, the court’s instruction was contemporaneous and thus was
a forceful instruction to the jury that the court—not the attorneys—would tell
the jury what the law was, including Holland’s burden of proof.
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20-13538 Opinion of the Court 35
on negligence law, and Appellants’ counsel did not object to those
instructions. So even if Holland’s counsel erroneously instructed
the jury, we presume that the jury followed the correct charge
from the court.
Appellants also argue that the district court’s instruction was
not sufficiently curative because the court did not “directly and ex-
plicitly address” Holland’s counsel’s misstatement. But they have
no support for this argument. They cite one unpublished case that
used the words “direct and explicit curative instruction” without
saying that such an instruction is required to cure prejudice.
Wiedeman v. Canal Ins. Co., 770 F. App’x 497, 500 (11th Cir. 2019)
(quoting United States v. Perez, 30 F.3d 1407, 1411 (11th Cir.
1994)).
To the extent that Holland’s counsel’s closing statement
misstated the law, the district court’s instruction that the jury was
to follow its instruction on the law, and its later correct instruction
on negligence, was sufficiently curative. Therefore, the district
court did not abuse its discretion by denying Appellants’ motion
for a mistrial on this basis.
III.
To summarize, we conclude that the district court correctly
denied Appellants’ motions for directed verdict and motion for
JNOV. First, Holland presented sufficient evidence of negligence
to the jury, and there is no basis to disturb the jury’s implicit finding
that Appellants failed to carry their burden of proof for the “act of
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36 Opinion of the Court 20-13538
God” affirmative defense. Second, the evidence adduced at trial
also supported the jury’s finding that Harper acted in bad faith, jus-
tifying an award of attorney fees under O.C.G.A. § 13-6-11. Third,
the district court properly instructed the jury on pain and suffering.
Fourth, Appellants raised their argument that O.C.G.A. § 40-2-140
allows direct actions against insurers only for a motor carrier’s vio-
lation of the UCRA for the first time on appeal; accordingly, this
argument is forfeited. Moreover, Appellants forfeited any argu-
ment against, and even stipulated to, Cypress’s presence as a
named defendant at trial. Fifth, to the extent Holland’s counsel’s
closing argument misstated the law, the district court properly
cured the same.
That said, we will vacate the judgment of the district court
to the extent it approved the jury’s $6 million attorney fee award.
The Georgia Court of Appeals has recently issued two opinions
concerning the reasonableness of attorney fee awards, and we re-
mand the question of whether the $6 million attorney fee is reason-
able for the district court to reconsider in light of those recent state
court decisions.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED.