published Wednesday, February 5th, 2014

Georgia's top court considers pay for injured inmate's lawyers

The Georgia Attorney General's Office says a government agency should not have to pay the lawyers of an injured Walker State Prison inmate.

During a Georgia Supreme Court hearing Tuesday, Assistant Attorney General Robert Bunner argued that other judges have misinterpreted the law. Bunner said the state shouldn't have to give a pair of lawyers $50,000. And, even if the state does have to make a payment, it shouldn't be that much money, he said.

The case surrounds an incident from July 2004, when David Lee Couch was staying at Walker State Prison in Rock Spring, Ga., for stealing. He was three months away from being released.

As part of a work program, Couch and other inmates painted Warden Dwight Hamrick's house. While there, Couch stood on top of a rotted wooden beam. The beam gave way, Couch fell, and during the fall he sliced his urethra.

Couch sued the Georgia Department of Corrections, arguing that the agency's officials put him in a position to get hurt. Three years after the injury, Couch offered to settle. He asked the state to pay $24,000 for his injury. Department of Corrections officials rejected the deal.

Then, in March 2009, a Walker County jury ruled in favor of Couch and said the state owed him $105,000. Then, a trial court judge ruled that the state also owed Couch $54,000 in attorneys' fees. The Georgia Court of Appeals agreed last year that the state owes Couch that extra money.

Now, on Tuesday, Bunner argued that the state (and, therefore, taxpayers) shouldn't have to give money to Couch's attorneys, Kevin Elwell and Tom Tidwell. Bunner's argument is about identifying what, specifically, the state did wrong.

According to Georgia law, the state only has to pay money in these types of cases if that money is the result of a state employee's error. Prison employees messed up when they put Couch on the rotten beam, but Bunner said this is not connected to the attorneys' payments.

Bunner said the state only has to pay for Couch's attorneys because the state denied Couch's initial offer to settle out of court. This decision, Bunner said, was not a state employee error.

Standing before the Supreme Court justices, Bunner said the attorneys' fees are not connected to Couch's suffering.

"For a private person, this would seem to be an element of their actual damages," Justice David Nahmias said about the attorneys' fees.

"In this context: No," Bunner replied.

And, even if the Supreme Court finds that the state does have to pay the money, Bunner said the state shouldn't have to pay all $50,000. The state's mistake would have been rejecting Couch's settlement offer. And, because the settlement offer came in November 2007, the state should only pay a portion of the $50,000 -- the portion that came after November 2007.

This is nonsense, Couch's lawyers say. Before taking the case, Elwell and Tidwell told Couch they would only take money if they won the lawsuit. So they earned all $50,000 after the March 2009 trial.

Before that, they had nothing. If the state wants to pay only the money earned after November 2007, that would still be all of the money.

And, the lawyers argued, the state owes them all of the money because this case is about the initial decision to put Couch in a position to get hurt. This isn't about the rejected settlement; this is about the injury.

"Attorneys' fees are an element of damages," Tidwell said to the justices.

Georgia Supreme Court justices typically take from one to five months after oral arguments to render a decision.

Contact staff writer Tyler Jett at 423-757-6476 or tjett@timesfreepress.com.

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