This is an appeal from a jury verdict and judgment in favor of plaintiff Kristen Cayes in a personal injury action arising from a rear-end collision. In his sole enumeration of error, defendant Ronald Anderson appeals from the jury’s separate award of the costs of litigation under OCGA § 13-6-11, contending that the evidence did not support such an award and that the trial court erred in denying his motion for directed verdict on this issue. We agree and reverse. OCGA § 13-6-11 permits the jury to award attorney fees “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” If a bona fide controversy exists, the plaintiff may recover attorney fees under this Code section only if the defendant has acted in bad faith in the underlying transaction. Issues regarding the existence of a bona fide controversy or a defendant’s bad faith are generally for the jury to decide. Finally, an award of attorney fees under OCGA § 13-6-11 should be affirmed if there is any evidence to support it. Citations omitted. Dept. of Transp. v. Hardin-Sunbelt, Joint Venture , 266 Ga. App. 139, 146 4 596 SE2d 397 2004. Here, Cayes acknowledged that Anderson did not act in bad faith, contending only that he was stubbornly litigious and caused her unnecessary trouble and expense. When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not ‘any evidence’ to support an award pursuant to OCGA § 13-6-11 if a bona fide controversy clearly exists between the parties. Thus, in a case where bad faith is not an issue, attorney fees are not authorized under OCGA § 13-6-11 if the evidence shows that a genuine dispute exists —whether of law or fact, on liability or amount of damages, or on any comparable issue. Citations and punctuation omitted. M & H Constr. Co. v. North Fulton Dev. Corp ., 238 Ga. App. 713, 714 1 519 SE2d 287 1999. “It is for the jury to determine whether there was a bona fide controversy, unless the facts preclude such a finding as a matter of law.” Citation and punctuation omitted. Webster v. Brown , 213 Ga. App. 845, 846 2 446 SE2d 522 1994. Resolution of this appeal therefore depends upon whether the evidence presented a bona fide controversy as a matter of law.
As the trial court noted, the facts of this case do not align precisely either with those of Webster , supra, or those of Daniel v. Smith , 266 Ga. App. 637 597 SE2d 432 2004. Webster and Daniel consider the existence of a bona fide controversy in automobile collision suits, and they reach opposite conclusions. But in light of the general law in this area, the facts of this case are closer to those of Webster and show a bona fide controversy with respect to liability.
