Minnix v. Department of Transp.

• Decision Date: 05 July 2000
• Docket Number: No. S00G0340.,S00G0340.
• Citation: 533 S.E.2d 75,272 Ga. 566
• Parties: MINNIX et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Supreme Court

533 S.E.2d 75

272 Ga. 566

MINNIX et al. v. DEPARTMENT OF TRANSPORTATION.

No. S00G0340.

Supreme Court of Georgia.

July 5, 2000.

Doffermyre, Shields, Canfield, Knowles & Devine, Foy R. Devine, David S. Hagy, Atlanta, Mundy & Gammage, William D. Sparks, Cedartown, for appellant.

Chambers, Mabry, McClelland & Brooks, Emory S. Mabry III, R. Michael Malone, Lawson, Davis, Pickren & Seydel, Paul R. Jordan, Alison H. Price, G. Thomas Davis, Atlanta, Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, for appellee.

Bordeaux & Abbot, Thomas C. Bordeaux, Jr., Savannah, Martha J. Fessenden, Decatur, amici curiae.

FLETCHER, Presiding Justice.

We granted certiorari to the Court of Appeals of Georgia¹ to determine whether the 1997 amendment to OCGA § 9-11-9.1 requires an expert affidavit to be filed against an employer, other than a licensed health care facility, which is alleged to be liable based upon the action or inaction of its agent or employee who is a professional licensed by the State of Georgia and listed in subsection (f) of that code section.² The court of appeals held that the 1997 amendment to OCGA § 9-11-9.1(a) did not change existing law with regard to claims of professional negligence against employers who act only through their agents or employees. Therefore, the court of appeals concluded, an expert affidavit was required against the Georgia Department of Transportation (DOT) in this case. We disagree. We hold that the plain and unequivocal language of OCGA § 9-11-9-.1(a), as amended, evinces the General Assembly's intent that the expert affidavit requirement in a professional malpractice case apply only to an employer that is a licensed health care facility in a suit where that employer's liability is premised on the action or inaction of a licensed health care professional listed in OCGA § 9-11-9.1(f). Because the DOT is not a licensed health care facility, it is not an employer to which OCGA § 9-11-9.1(a) applies. Therefore the decision of the court of appeals is reversed.

FACTS.

1. Billy Minnix died and his son, Craig David Minnix, sustained serious personal injuries as a result of an automobile collision. In April 1998 Bonnie Minnix, Jimmy Kay Minnix,³ and Craig David Minnix filed suit⁴ against the driver of the other vehicle and the DOT. With regard to their action against the DOT, the Minnixes alleged numerous counts of negligent maintenance and design of the highway on which the collision occurred.

The DOT answered and moved to dismiss the majority of the Minnixes' claims for failure to attach an expert affidavit pursuant to OCGA § 9-11-9.1(a). The trial court construed the Minnixes' complaint as alleging claims of professional negligence against agents and employees of the DOT and held that the amended statute required an expert affidavit to be filed against the DOT. The court thereafter dismissed twenty-three counts of the complaint. The court of appeals granted the Minnixes' application for interlocutory appeal and affirmed.

The court of appeals noted that the plain language of OCGA § 9-11-9.1(a), as amended, appeared to apply only to individuals who were licensed professionals under subsection (f), but held that because a governmental entity can only act through its individual agents or employees, the General Assembly did not intend to change prior law requiring an expert affidavit to be filed against the DOT in actions alleging the professional negligence of the DOT's agents or employees.⁵ The court of appeals concluded that because the Minnixes' allegations of liability were based on the exercise of professional skill of agents or employees of the DOT who are among the licensed professionals⁶ listed in subsection (f), an expert affidavit was required.

HISTORY OF OCGA § 9-11-9.1(a).

2. Prior to the 1997 amendment, OCGA § 9-11-9.1(a) provided,

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 claim.

OCGA § 9-11-9.1 was originally enacted as part of the Medical Malpractice Act of 1987.⁷ Its purpose was to reduce the number of frivolous suits being filed in professional malpractice cases.⁸ However, because the statute failed to specify those professionals against whom an expert affidavit was required, the appellate courts construed its broad language to apply to a variety of professionals other than physicians.⁹ In Gillis v. Goodgame,¹⁰ this Court held that the affidavit requirement of Rule 9.1 would apply to the term "professional" as defined by OCGA §§ 14-7-2(2); 14-10-2(2); and 43-1-24. While the intent in Gillis was to create a bright line rule that would effectuate the legislative purpose of the statute, application of the rule in that case resulted in decisions requiring an expert affidavit at the pleading stage of negligence claims against harbor pilots,¹¹ pest control services,¹² and real estate brokers.¹³ Two years after the decision in Gillis, this Court modified the rule of that case to apply the expert affidavit requirement "only to those licensed professions regulated by state examining boards where licensure is predicated upon the successful completion of the specialized schooling or training necessary to obtain the expertise to practice that profession."¹⁴ Application of this rule necessitated extensive reference to the Georgia Code to determine which professions required an expert affidavit. While this rule, like the rule in Gillis, attempted to narrow the scope of OCGA § 9-11-9.1(a), it resulted in the requirement of an expert affidavit at the pleading stage of negligence claims against plumbers.¹⁵

Appellate decisions additionally relied on the broad language of OCGA § 9-11-9.1(a) to require an expert affidavit in suits against hospitals,¹⁶ counties,¹⁷ and the DOT¹⁸ where it was alleged that the liability of these entities was premised on the negligence of their employees or agents who were themselves recognized "professionals" to whom the statute had been held to apply.

A number of unanswered judicial invitations were extended to the General Assembly to amend OCGA § 9-11-9.1 to clarify or limit its scope,¹⁹ or even to repeal it in its entirety.²⁰ The prolific litigation generated by OCGA § 9-11-9.1 led both the courts and commentators to declare that the statute had failed to achieve its intended purpose of reducing professional malpractice litigation. ²¹

THE AMENDMENT TO OCGA § 9-11-9.1(a).

3. In 1997, with full knowledge of this existing condition of the law, the General Assembly struck OCGA § 9-11-9.1 in its entirety and re-enacted it with substantive and procedural revisions²² in order to, inter alia, "change the provisions relating to the affidavit which must be filed with the complaint in any action for damages alleging professional malpractice ... [and] to provide for professions to which the affidavit requirement applies."²³ This Court has held that in enacting the 1997 amendment, the General Assembly intended to "simplify the process for determining the validity of the expert affidavit filed in a professional malpractice case."²⁴

OCGA § 9-11-9.1(a) now provides:

In any action for damages alleging professional malpractice against a professional licensed by the State of Georgia and listed in subsection (f) of this Code section or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (f) of this Code section, 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 claim.

The language of OCGA § 9-11-9.1(a) is plain, unequivocal and a clear expression of the General Assembly's intent that an expert affidavit is required in any action alleging professional malpractice with regard to two categories of defendants: 1) those professionals licensed by the State of Georgia and listed in OCGA § 9-11-9.1(f),²⁵ and 2) "any licensed health care facility alleged to be liable based on the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (f)." Thus OCGA § 9-11-9.1(a) by its specific terms limits the expert affidavit requirement to professional malpractice suits against members of one of the 24 enumerated professions, and to one category of employer—a licensed health care facility—when that employer's liability is predicated on the professional negligence of its agents or employees who are themselves among the licensed health care professionals listed in OCGA § 9-11-9.1(f).

Notwithstanding the clear and limiting language of subsection (a), the DOT argues that there is nothing to indicate that the General Assembly intended to change the professions or employers to which former subsection (a) was held to apply. We do not agree. Had the General Assembly intended for the expert affidavit requirement to continue to apply to every profession and employer which the appellate courts had held it applicable, that body would have included exterminators, harbor pilots, landscape architects, real estate brokers and plumbers in the category of professions listed in OCGA § 9-11-9.1(f).²⁶ It would have additionally included counties and the DOT in the category of employers along with licensed health care facilities.²⁷ It did not. We decline to construe subsection (a), as amended, to apply to the DOT when the General Assembly has by clear language omitted the DOT from the statute's ambit. Where, as here, the language of a statute is plain on its face, judicial construction is not only unnecessary, but is...