Kneip v. Southern Engineering Co., s. S90G0518

• Decision Date: 27 September 1990
• Docket Number: Nos. S90G0518,S90G0453,s. S90G0518
• Parties: KNEIP et al. v. SOUTHERN ENGINEERING CO. et al. CENTRAL GEORGIA ELECTRIC MEMBERSHIP CORP. v. SOUTHERN ENGINEERING CO. et al.
• Court: Georgia Supreme Court

Page 809

395 S.E.2d 809

260 Ga. 409

KNEIP et al. v. SOUTHERN ENGINEERING CO. et al.

CENTRAL GEORGIA ELECTRIC MEMBERSHIP CORP. v. SOUTHERN ENGINEERING CO. et al.

Nos. S90G0518, S90G0453.

Supreme Court of Georgia.

Sept. 27, 1990.

David G. Kopp, Greensboro, for Kneip et al.

C. Robert Melton, Forsyth, for Central Georgia Elec. Membership Corp.

Kent T. Stair, R. Michael Etheridge, Webb, Carlock, Copeland Semler & Stair, Atlanta, for Southern Engineering Co.

Jesse Copelan, Jr., Eatonton, Robert Hocutt, Nall, Miller, Owens, Hocutt & Howard, for other respondents.

HUNT, Justice.

We granted certiorari to the Court of Appeals in Southern Engineering Company v. Central Georgia Electric Membership Corp., 193 Ga.App. 878, 389 S.E.2d 380 (1989) to once again examine the meaning of the word "professional" as set out in OCGA § 9-11-9.1, and to determine whether the affidavit requirement of that code section applies in this case.

The facts, more fully set forth in the Court of Appeals opinion are as follows. The Kneips were injured when a truck owned by Gordon Mobile Home Carriers and operated by one of its employees, swerved into the path of their car to avoid striking a utility pole that had fallen into Gordon's traffic lane. The Kneips sued the driver and owner of the truck, and the latter filed a third-party complaint against the pole's owner, Central Georgia Electric Membership Corporation (Central) which in turn filed a suit against the firm responsible for inspecting the poles, Southern Engineering Company (Southern). The Kneips later named Southern and Central as additional parties defendant.

Neither the Kneips nor Central filed with their complaints against Southern affidavits under OCGA § 9-11-9.1(a) setting forth specific acts constituting professional malpractice and Southern moved to dismiss on that ground. The Court of Appeals, reversing the trial court's denial of Southern's motion, held that the affidavit requirement of OCGA § 9-11-9.1(a) applied in this case and that failure to file the affidavit was a non-amendable defect where, as here, Southern raised that defense in its initial pleading.

1. The Kneips did not appeal from the dismissal of their claims against Southern, and were not parties to the appeal in the Court of Appeals. Accordingly, their appeal in Case No. S90G0518 is dismissed.

2. The requirements of OCGA § 9-11-9.1(a) apply to the engineering profession. We recently rejected Central's argument that the foregoing statute is limited to medical malpractice actions in Housing Authority of Savannah v. Greene, 259 Ga. 435(1), 383 S.E.2d 867 (1989). In that case, we held that, under the plain language of the statute, OCGA § 9-11-9.1 applies to " 'any action for damages alleging professional malpractice.' " Id. at 437, 383 S.E.2d 867. We also noted that

... persons performing ... 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.

(Emphasis supplied). Id. at 436, 383 S.E.2d 867.

3. We must next determine whether the affidavit requirements of OCGA § 9-11-9.1(a) apply in this case. In its third-party complaint against Southern, Central alleged that the inspection and report of the inspection by Southern's employees were performed in a negligent manner so that the deterioration of the pole remained undetected, resulting in the fall of the utility pole which proximately contributed to the injuries in this case. Southern's inspection of the pole was conducted under a contract between Central and Southern whereby Southern agreed to perform engineering services for Central by reviewing Central's network, including the inspection of its utility poles. Further, Central has stated in its responses to discovery that it expects to call expert witnesses at trial who will testify that Southern's inspection of the pole should have revealed the pole was so deteriorated that it ought to have been replaced. Under these facts, Central was required to attach to its complaint the appropriate affidavit under OCGA § 9-11-9.1(a).

Central contends the alleged acts of negligence on the part of Southern are not "professional acts" within the meaning of OCGA § 9-11-9.1(a). We recognize there are instances in which actions performed by or under the supervision of a professional are nevertheless not professional acts constituting professional malpractice, but, rather, are acts of simple negligence which would not require proof by expert evidence. See, e.g., Piedmont Hospital, Inc. v. Milton, 189 Ga.App. 563, 564, 377 S.E.2d 198 (1988); Candler General Hospital v. McNorrill, 182 Ga.App. 107, 354 S.E.2d 872 (1987); Self v. Executive Committee, 245 Ga. 548, 266 S.E.2d 168 (1980). Central's claim, however, does not fall within this category of simple negligence cases. Its assertions of negligence could be established only by professional or expert testimony.

4. Central contends dismissal of its action under OCGA § 9-11-9.1(e) for failure to file an expert's affidavit is inappropriate because that subsection was not effective and the law regarding the applicability of the statute to claims for engineering malpractice was not clear, until after the time of the filing of its claims against Southern. For the reasons expressed in Precision Planning, Inc. v. Wall, 193 Ga.App. 331, 387 S.E.2d 610 (1989), we reject Central's arguments that OCGA § 9-11-9.1(e) is not subject to retroactive application.

However, we agree that, in light of the legislative history of the statute, and the unclear state of the law at the time Central filed its complaint against Southern, it would be manifestly unfair to dismiss Central's complaint. OCGA § 9-11-9.1 was enacted as § 3 of the Medical Malpractice Act of...