Housing Authority of Savannah v. Greene

• Decision Date: 28 September 1989
• Docket Number: No. S89G0001,S89G0001
• Citation: 259 Ga. 435,383 S.E.2d 867
• Parties: HOUSING AUTHORITY OF SAVANNAH v. GREENE, b/n/f, et al.
• Court: Georgia Supreme Court

Page 867

383 S.E.2d 867

259 Ga. 435

HOUSING AUTHORITY OF SAVANNAH v. GREENE, b/n/f, et al.

No. S89G0001.

Supreme Court of Georgia.

Sept. 28, 1989.

Willis J. Richardson, Jr., Savannah, for Housing Authority of Savannah.

Windy Woods Williamson, Oliver, Maner & Gray A. Martin Kent, Morton G. Forbes, Ranitz, Mahoney, Forbes & Coolidge, James M. Thomas, Savannah, for Terrence Greene, b/n/f et al.

Michael J. Bowers, Atty. Gen., Roland F. Matson, Sr. Asst. Atty. Gen., J. Matthew Dwyer, Jr., Thomas C. Dempey, William Woods White, George L. Lewis, Kent T. Stair, John T. Woodall, Louis B. Lusk, Jr., amici curiae.

MARSHALL, Chief Justice.

We granted certiorari in this case, Housing Auth. of Savannah v. Gilpin + Bazemore/Architects & Planners, Inc., 191 Ga.App. 400, 381 S.E.2d 550 (1989), in order to address two questions concerning OCGA § 9-11-9.1 (Rule 9.1 of the Civil Practice Act). Subsection (a) of OCGA § 9-11-9.1 provides:

In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

The first question for decision is whether this statute applies to professional-malpractice actions against architects.

The second question is whether the statute is applicable to a third-party complaint brought under OCGA § 9-11-14 (Rule 14).

In this case, the Housing Authority of Savannah was named as one of multiple defendants in a wrongful-death action in which it is alleged that the decedent, Lula Laverne Greene, died as a result of carbon monoxide poisoning while residing in an apartment owned by the housing authority. It is further alleged that the carbon monoxide poisoning was caused by the faulty design and construction of the apartment's heating system. In its third-party complaint, the housing authority states that it contracted with Gilpin + Bazemore/Architects & Planners, Inc., for this architectural firm to furnish all of the professional architectural and engineering services required for the design and construction of the heating system.

The architectural firm filed a motion to dismiss the third-party complaint, because it did not have an expert affidavit attached thereto, as required by OCGA § 9-11-9.1. The trial court granted the motion to dismiss. After granting the housing authority's application for interlocutory appeal, the Court of Appeals affirmed.

1. The practice of architecture is recognized as a profession under Georgia statutory law. See OCGA § 43-4-1 et seq.; OCGA § 14-7-2(2).

And, as held in cases exemplified by Housing Auth. v. Ayers, 211 Ga. 728, 733(6), 88 S.E.2d 368 (1955), and Hudgins v. Bacon, 171 Ga.App. 856, 859(1), 321 S.E.2d 359 (1984), persons performing architectural and engineering services are performing professional services, and the law imposes upon such persons the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.

Thus, it is generally necessary to admit expert testimony in professional-malpractice cases such as this in order to establish the degree of skill and care ordinarily employed by the profession. See, e.g., Hughes v. Malone, 146 Ga.App. 341, 247 S.E.2d 107 (1978).

Notwithstanding the fact that there is a "judicially-created rule" dispensing with the expert-evidence requirement in cases of "clear and palpable" professional negligence, it was held in Barr v. Johnson, 189 Ga.App. 136, 137, 375 S.E.2d 51 (1988), cert. denied 259 Ga. ---- (1989), that OCGA § 9-11-9.1 supersedes this rule, so that even in cases of "clear and palpable" professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint. ¹

More importantly, however, for our purposes here, it was further held in Barr v. Johnson, supra, which was a legal-malpractice action, that OCGA § 9-11-9.1 "applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care." 189 Ga.App. at 137, 375 S.E.2d 51.

Barr v. Johnson's rejection of the argument that OCGA § 9-11-9.1 applies only to medical-malpractice actions was followed in Padgett v. Crawford, 189 Ga.App. 568, 376 S.E.2d 724 (1988), and Frazier v. Merritt, 190 Ga.App. 832(2), 380 S.E.2d 495 (1989), both of which were also legal-malpractice actions.

Consequently, we hold that, under the plain language of the statute, OCGA § 9-11-9.1 applies to "any action for damages alleging professional malpractice" on the part of an architect or other professional. See Div. 4, infra, for a discussion of the rules of statutory construction which lead to this holding.

2. We now move to the question of whether the statute is likewise applicable where, as here, the third-party defendant has been brought into the action based on assertions by the third-party plaintiff that, under allegations in the plaintiff's complaint, the third-party defendant is an unidentified joint tortfeasor with the third-party plaintiff, and, therefore, if the plaintiffs are entitled to an award of damages against the third-party plaintiff, the third-party plaintiff is entitled to contribution and indemnity from the third-party defendant.

We hold that it does. We agree with the reasoning of the Court of Appeals in this case that the statute is applicable here, since the third-party complaint does allege professional malpractice, and asserts a claim for damages.

Under the Civil Practice Act, an "action" is defined as meaning "the judicial means of enforcing a right." OCGA § 9-2-1(1). A third-party complaint certainly comes within the scope of that definition.

3. While it is true that OCGA § 9-11-9.1 was enacted as section 3 of the Medical Malpractice Act of 1987 (Ga.L.1987, p. 887 et seq.), it is likewise true that the remaining sections of this Act expressly apply to medical-malpractice actions or health-care providers, ² whereas section 3 applies to "any action for damages alleging professional malpractice."

It is also true that the General Assembly, in its 1989 session, did amend OCGA § 9-11-9.1 (Ga.L.1989, p. 419, § 3) by enacting subsections (e) and (f), which create rules to govern situations in which the plaintiff has the expert affidavit available prior to filing the complaint and fails to file the affidavit as the result of mistake. See fn. 1, supra.

And, it is stated in the preamble to the 1989 Act, as well as in an uncodified portion of the body of the Act, that OCGA § 9-11-9.1 "relate[s] to the requirement of an affidavit to accompany a complaint in an action for medical malpractice." Ga.L.1987; pp. 419, 421-422.

4. However, the decision in Barr v. Johnson, supra, was rendered on September 14, 1988, and the decision in Padgett v. Crawford, supra, was rendered on December 5, 1988, thereby antedating the enactment of the 1989 amendment to OCGA § 9-11-9.1. In view of this, and in further view of the fact that under its plain language, OCGA § 9-11-9.1 applies to "any action for damages alleging professional malpractice," we continue to hold that the applicability of the statute is not restricted to medical-malpractice actions.

Where the statutory language is plain and unequivocal, judicial construction is unauthorized, unless the literal language ascribes to the legislature a wholly unreasonable intention, or an intention to do a futile and useless thing, or where an obvious clerical or typographical error has been made. City of Jesup v. Bennett, 226 Ga. 606(2), 176 S.E.2d 81 (1970) and cits. Also, see Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).

In addition,

'[a]ll statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, ... and their meaning and effect is to be determined ... with reference to other statutes and decisions of the courts. (Cits.)' Poteat v. Butler, 231 Ga. 187, 188(1) (200 S.E.2d 741) (1973).

Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 403, 349 S.E.2d 368 (1986).

5. Finally, it is argued that application of OCGA § 9-11-9.1 (Rule 9.1) to third-party practice under OCGA § 9-11-14 (Rule 14) would effectively deny defendants the right under OCGA § 9-11-8(e)(2) (Rule 8(e)(2)) to plead alternatively.

In this regard, OCGA § 9-11-8(e)(2) allows a party to set forth two or more statements of a claim or defense alternatively or hypothetically, so that it is permissible for a defendant to deny liability as to the plaintiff's claim, while simultaneously impleading a third-party defendant and alleging that if the defendant/third-party plaintiff is liable to the plaintiff then the third-party defendant is liable to him. See Ara Transportation v. Barnes, 183 Ga.App. 424(1), 359 S.E.2d 157 (1987) and cits.

It is argued here that a defendant cannot deny the allegations of the complaint, and, at the same time, file an affidavit swearing to the potential malpractice of a third-party defendant, in that such an affidavit would amount to an admission of the allegations the defendant seeks to deny. We disagree.

What OCGA § 9-11-9.1(a) requires is that the expert affidavit set forth specifically at least one negligent act or omission "claimed to exist" and the factual basis for each such claim. ³ It is unnecessary for the third-party plaintiff to either prove the alleged facts or admit that such facts are true. Under the statute, where a third-party complaint asserts a damage claim and alleges professional malpractice, it is only necessary that there be filed contemporaneously with the filing of the complaint the affidavit of an expert stating that, in...