Defendant’s counterclaims are therefore compulsory counterclaims under O.C.G.A. § 9-11-13(a), as they arise from the same Agreement under which Greenheart now sues. Accordingly, Defendant may not recover any attorney’s fees under O.C.G.A. § 13-6-11 as a matter of Georgia law. 2. O.C.G.A. § 9-15- 14.

Assocs., Inc., No. CV 107-104, 2011 WL 1225577, at *16 (S.D. Ga. Mar. 30, 2011) (granting summary judgment in favor of defendant on attorney’s fee claim when plaintiffs failed to demonstrate that genuine issues of material fact existed on other claims in complaint); Dowell v. Krystal Co., 291 Ga. App. 469, 473, 662 S.E.2d 150, 155 (2008) (“ A claim for attorney fees under O.C.G.A. § 13-6-11 will not lie when general damages are not awarded.”).

United Companies Lending Corp. v. Peacock, 267 Ga. 145, 146, 475 S.E.2d 601, 602 (1996) (“A prerequisite to any award of attorney fees under O.C.G.A. § 13–6–11 is the award of damages or other relief on the underlying Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 14 of 18 15 claim”).

Kin Chun Chung v. JPMorgan Chase Bank, N.A., 975 F. Supp. 2d 1333, 1351 (N.D. Ga. 2013). For purposes of O.C.G.A. § 13-6-11, “bad faith requires more than ‘bad judgment’ or ‘negligence.’” Id.

Defendant’s Counter-Claim is therefore a compulsory counter-claim under O.C.G.A. § 9-11-13(a), as it arises from the same transaction or occurrence under which Greenheart now sues. Defendant may not recover any attorney’s fees under O.C.G.A. § 13-6-11 as a matter of Georgia law. Greenheart’s citations in its footnote 5 to N.Y. Life Ins. Co. v. Grant, 57 F. Supp. 3d 1401 (M.D. Ga 2012) and Singh v. Sterling United, Inc., 326 Ga. App. 504, 756 S.E.2d 728 (2014) do not contradict this law or this analysis.

D. The Claim Under O.C.G.A. 13-6-11 Must be Dismissed Because BBGG has failed to state a valid claim for relief, its claim for attorneys’ fees under O.C.G.A. § 13-6-11 must also be dismissed. See Benchmark Builders, Inc. v. Schultz, 289 Ga. 329, 330 (2011) (holding void an award of attorney’s fees in the absence of actual damages or other affirmative relief).

In this case, Plaintiff received an Case 4:09-cv-00146-CDL Document 93 Filed 05/02/11 Page 37 of 40 - 29 - emotional distress award of $1 million. The award of attorneys’ fees under O.C.G.A. § 13-6-11 also includes a punitive element, given that the award is based on alleged bad faith conduct. Thus, a lower multiplier is “especially” appropriate “in light of the substantial compensatory damages awarded (a portion of which contained a punitive element).”

. Here, Plaintiff’s substantive claims should be dismissed, which would then result in Plaintiff’s claims under O.C.G.A. § 13-6-11 being unsustainable as a matter of law. III. CONCLUSION For the reasons set forth above, the United States of America respectfully requests that the Court grant its motion and dismiss Plaintiff’s action for lack of subject matter jurisdiction.

O.C.G.A. § 33-4-6 is the exclusive remedy for bad faith denial of benefits so that litigation expenses under O.C.G.A. § 13-6-11 are not recoverable. Case 1:16-cv-03108-MHC Document 24-2 Filed 11/08/16 Page 16 of 24 17 226 Ga. App. at 149, 486 S.E.2d at 617; see also Howell v. Southern Heritage Ins. Co., 214 Ga. App. 536, 448 S.E.2d 275 (1994) (insured’s claim for attorney’s fees and expenses of litigation under O.C.G.A. § 13-6-11 not authorized). Even if he had invoked O.C.G.A. § 33-4-6, Steward’s claim would fail because there is no evidence that he made a demand for payment more than 60 days before filing suit.9 “To recover attorney’s fees or penalty for bad faith a demand for payment of the loss must be made more than 60 days prior to filing of the suit.”

Therefore, it is unsurprising that Avant cites no authority stating (or even suggesting) that a claim for litigation expenses under section 13-6-11 should be dismissed solely because it is pleaded as a cause of action. Indeed, in the only case from which Avant appears to draw this misguided conclusion, Monge v. Madison County Record, Inc., 802 F.Supp.2d 1327, 1339 (N.D.Ga. 2011), the court dismissed the plaintiff’s section 13-6-11 claim only because all other claims had been dismissed and, without any other viable claims, the plaintiff could prove that 16 the defendant engaged in the bad-faith, stubbornly litigious conduct that would entitle the plaintiff to litigation expenses under 13-6-11. Third, Avant asserts that Brookwood’s complaint is a “quintessential shotgun pleading” that should be re-pleaded because Brookwood incorporates prior allegations into each of its substantive counts.