Southern Engineering Co. v. Central Georgia Elec. Membership Corp.

• Decision Date: 30 November 1989
• Docket Number: No. A89A2228,A89A2228
• Citation: 389 S.E.2d 380,193 Ga.App. 878
• Parties: SOUTHERN ENGINEERING COMPANY v. CENTRAL GEORGIA ELECTRIC MEMBERSHIP CORPORATION et al.
• Court: Georgia Court of Appeals

Page 380

389 S.E.2d 380

193 Ga.App. 878

SOUTHERN ENGINEERING COMPANY v. CENTRAL GEORGIA ELECTRIC MEMBERSHIP CORPORATION et al.

No. A89A2228.

Court of Appeals of Georgia.

Nov. 30, 1989.

Rehearings Denied Dec. 11 and 13, 1989.

Certiorari Granted Jan. 26, 1990.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Atlanta, and R. Michael Ethridge, for appellant.

Jesse Copelan, Jr., Eatonton, C. Robert Melton, Forsyth, David G. Kopp, Greensboro, Nall, Miller, Owens, Hocutt & Howard, and Robert B. Hocutt, Atlanta, for appellees.

DEEN, Presiding Judge.

Mr. & Mrs. Kneip, not parties to the instant appeal, were injured when a truck owned by Gordon Mobile Home Carriers (also not a party to this appeal) and operated by one of its employees swerved into the path of their automobile in order to avoid striking a utility pole that had fallen into Gordon's own traffic lane. The Kneips brought a negligence action against the driver and owner; the latter filed a third-party complaint against the pole's owner, appellee Central of Georgia Electric Membership Corporation (Central), which in turn filed suit against the firm responsible for inspecting the poles, appellant Southern Engineering Company (Southern). The Kneips subsequently named Southern and Central as additional parties defendant, again charging negligence. Neither the Kneips nor Central filed with their respective complaints an affidavit, pursuant to OCGA § 9-11-9.1(a), setting forth specific acts which constituted professional malpractice on Southern's part.

In its answer Southern raised the defense of failure to file the affidavits required by the cited Code section and moved to dismiss on this ground. The Kneips, Gordon and its insurer, and Central argued that § 9-11-9.1(a) is applicable only to medical malpractice actions; that engineering is not recognized as a profession under Georgia law; and that the employee responsible for actually inspecting the poles was not an engineer or a professional of any kind. They further contended that the cited section does not apply to third-party actions and that, moreover, since the defense was not raised until after the statute of limitation had expired for the voluntary dismissal and subsequent renewal of the action, a substantial injustice would be perpetrated if they were not allowed a reasonable time to file amended complaints with affidavits attached. The trial court denied the motion to dismiss, and Southern filed an interlocutory appeal which this court granted. Held:

1. We first address the applicability of OCGA § 9-11-9.1 to the engineering profession and to a third-party defendant. In Housing Auth. of Savannah v. Greene, 259 Ga. 435, 383 S.E.2d 867 (1989), the Supreme Court, reading the statutory language literally, held that OCGA § 9-11-9.1 applies to a malpractice claim against a member of any profession recognized as such under Georgia law. See OCGA §§ 43-4-1; 14-7-2(2). In Greene the court held at p. 436, 383 S.E.2d 867: "[P]ersons 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." See Precision Planning v. Wall, 193 Ga.App. 331, 387 S.E.2d 610 (1989) (concurring opinion). See also Barr v. Johnson, 189 Ga.App. 136, 375 S.E.2d 51 (1988), cert. denied 259 Ga. --- (1989).

2. Greene further held, 259 Ga. at 437, 383 S.E.2d 867, that the statute is applicable to a third-party complaint, as well as otherwise. Therefore, the statute is applicable to a defendant in the posture of Southern Engineering.

3. We next consider whether the statute can be invoked, as here, by an engineering firm named as a party defendant, as distinguished from an individual so named. This issue was not expressly addressed by the Supreme Court on certiorari. OCGA § 14-7-4(b) provides that "[a] professional corporation shall engage in the practice of a profession only through its officers, employees, and agents who are duly licensed or otherwise legally authorized to practice the profession in this state." In the instant case, as in Greene, the fourth-party defendant was not organized as a professional corporation. The holding of this court in Housing Auth. of Savannah v. Gilpin etc. Architects, 191 Ga.App. 400, 381 S.E.2d 550, on that particular issue applies by analogy to the instant case: "We reject appellant's argument that the third-party complaint cannot be considered a claim for professional malpractice because it was brought against an entity which is not organized as a professional corporation. By law, a corporation may not be registered to practice architecture but may practice only through registered individuals. OCGA § 43-4-10(c). Thus ... the fact that a...