FDOV LLC v. EADDY (2026)

FDOV, LLC, the owner of a Family Dollar store, appeals from the trial court's order granting summary judgment to OOIDA Risk Retention Group, Inc., with respect to FDOV's claim for an award of attorney fees and expenses under OCGA § 13-6-11. For the reasons discussed below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.¹ We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.²

So viewed, the record shows that in November 2010, FDOV filed a complaint against Antonio Eaddy, Larry T. Savage (Eaddy's employer), and OOIDA (the defendants’ insurance carrier), alleging that Eaddy, while acting within the scope of his employment for Savage, negligently backed a tractor-trailer truck into FDOV's store and caused $8,400 in damage. FDOV further alleged that OOIDA, as insurer of Eaddy, Savage, and the truck, failed to fairly adjust the claim. FDOV brought the following claims: negligence against Eaddy (Count I), negligence/vicarious liability against Savage (Count II), bad faith failure to adjust against OOIDA pursuant to OCGA § 33-4-7 (Count III), and attorney fees against OOIDA under OCGA § 13-6-11 (Count IV).

The parties engaged in lengthy discovery, and, in 2023, the trial court imposed a sanction of over $1,000 because Eaddy had violated the court's order compelling him to attend a deposition. The parties subsequently entered a stipulation of judgment as to property damages, and the trial court ordered as follows:

WHEREFORE, Plaintiff and Defendants hereby stipulate and agree that Plaintiff will forbear its right to compel Defendant Antonio Eaddy to sit for his properly noticed deposition in exchange for Defendants’ agreeing to this Stipulation of Judgment that the property damages are awarded to FDOV due to Eaddy's negligence are $8,400.00, payable now and need not be proven at trial, in addition to OOIDA's agreement to pay Eaddy's sanctions of $ 1,032.00 to Plaintiff, which have already been paid.

Whether Defendants, and specifically OOIDA, are liable to Plaintiff for bad faith damages under either OCGA §§ 33-4-7 or 13-6-11 shall remain issues to be resolved by the trier of fact. Entry into this Stipulation of Judgment shall create no inference or presumption as to whether Defendants are liable to Plaintiffs for bad faith damages under either OCGA §§ 33-4-7 or 13-6-11. The jury will be told “The parties have stipulated that the property damages were $8,400.00 and that amount has been paid and is not an issue in this case.” This Stipulation shall not work as a waiver of any claims or defenses the Parties may otherwise assert at trial.

The defendants moved for summary judgment on the two remaining claims. The trial court granted the motion as to Count III but denied it as to Count IV. FDOV appealed, and we affirmed.³

After remittitur, OOIDA renewed its motion for summary judgment on Count IV, the OCGA § 13-6-11 claim, which was the sole remaining claim in the case. OOIDA acknowledged that it had previously asked for summary judgment on this claim, but stated that it was raising different bases in this motion. OOIDA argued, first, that FDOV could not recover under § 13-6-11 because that provision does not create an independent cause of action and FDOV had no other viable claims pending against OOIDA. Second, OOIDA argued that even if the claim could proceed, FDOV would not be entitled to recover because none of the statutory bases for an award under § 13-6-11 were present in this case.

In response, FDOV argued that the claims for property damage remained a part of the action despite the stipulated judgment and that an award under OCGA § 13-6-11 was warranted because OOIDA had been stubbornly litigious. In its reply brief in support of its motion for summary judgment, OOIDA expressly “withdr[ew] its assertion” that the § 13-6-11 claim was procedurally barred, stating: “OOIDA agrees that the negligence claim remains a part of this litigation in the amount of $8,400.” OOIDA maintained, however, that no award should be entered because there was a bona fide controversy when FDOV filed suit — namely, whether an insurer is required to make an “unqualified” offer to avoid bad faith penalties. That issue was resolved in OOIDA's favor in the prior appeal.

The trial court granted the motion and entered summary judgment for OOIDA, summarily finding that “a bona fide dispute existed between the parties” when the case was filed. This appeal followed.

On appeal, FDOV contends that the trial court erred in granting summary judgment to OOIDA on FDOV's request for an award under OCGA § 13-6-11. Importantly, FDOV maintains that its claims for negligence and vicarious liability — Counts I and II of the complaint — are the claims underlying its request for attorney fees and litigation expenses under § 13-6-11.⁴ But given that Counts I and II are the companion claims underlying FDOV's request for an award under § 13-6-11, it is clear as a matter of law that FDOV cannot prevail on its request for such an award. This is because FDOV brought Counts I and II against Eaddy and Savage, but it requested a § 13-6-11 award against a different defendant: OOIDA. Specifically, in Count IV of its complaint, FDOV alleged:

As shown by Defendant OOIDA's failure to fairly and promptly adjust the Claim and respond to FDOV's reasonable demands, Defendant OOIDA has acted in bad faith, has been stubbornly litigious and/or has caused FDOV unnecessary trouble and expense. Therefore, FDOV is entitled to recover from Defendant OOIDA its costs of litigation, including attorney's fees as provided under OCGA § 13-6-11.

Likewise, in its prayers for relief, FDOV asked the trial court to enter judgment against Eaddy and Savage jointly and severally in the amount of $8,400 with respect to Counts I and II. But with respect to Count IV, FDOV prayed for the court to “enter judgment in favor of FDOV and against Defendant OOIDA for its costs of litigation including attorney's fees as provided in OCGA § 13-6-11[.]”

As we have previously explained,

an award of attorney fees under [OCGA § 13-6-11] is considered to be an additional element of the compensatory damages that the jury may award as part of a substantive claim for relief. As a result, the statute allows an award of attorney fees only to a prevailing party, which means a party that has obtained an award of damages or other affirmative relief on its underlying claims.5

Where a party prevails on some of its claims but not others, it can obtain an award under § 13-6-11 only as to a party against whom it prevailed.⁶

Here, FDOV sought an award under OCGA § 13-6-11 against OOIDA, but it did not prevail on the substantive claim it brought against OOIDA; Count III was resolved by summary judgment in OOIDA's favor. And while FDOV did prevail on the claims it brought against Eaddy and Savage, it did not seek an award under § 13-6-11 against those defendants. Under these circumstances, OOIDA was entitled to judgment as a matter of law on Count IV of the complaint. We therefore affirm the trial court's grant of summary judgment to OOIDA on this issue, albeit under a different rationale than that employed by the trial court.⁷

Judgment affirmed.

FOOTNOTES

1.   See OCGA § 9-11-56(c).

2.   Home Builders Ass'n of Savannah v. Chatham County, 276 Ga. 243, 245(1), 577 S.E.2d 564 (2003).

3.   FDOV, LLC v. Eaddy, 375 Ga. App. 576, 916 S.E.2d 793 (2025).

4.   FDOV further argues that the stipulated judgment constituted a recovery in its favor on those claims and insists that these claims remained a part of the case after the stipulated judgment was entered.

5.   Premier Residential SE v. Silverstone Residential, 368 Ga. App. 142, 151(3), 889 S.E.2d 325 (2023) (citation and punctuation omitted).

6.   See id. at 151–52(3), 889 S.E.2d 325 (holding that jury's award of OCGA § 13-6-11 fees was void because, although the plaintiff prevailed on some of its claims against other defendants, it did not prevail on any claims as to the party against whom the award was entered) .

7.   See Sadlowski v. Beacon Mgmt. Servs., 348 Ga. App. 585, 590(1) n.13, 824 S.E.2d 42 (2019) (recognizing that appellate courts may apply the right for any reason rule when reviewing grants of summary judgment).

Watkins, Judge.

McFadden, P. J., and Padgett, J., concur.