Trial Practice and Procedure - C. Frederick Overby, Jason Crawford, Teresa T. Abell, and Matthew E. Cook

• Publication year: 1999

Trial Practice and Procedureby C. Frederick Overby^*

Jason Crawford^**

Teresa T. Abell^*** and

Matthew E. Cook^****

I. Introduction

This survey period yielded several notable decisions covering the professional malpractice affidavit/pleading requirement, renewal actions, attorney-client relations, and the summary judgment standard. Refinements in the areas of insurance practice, jury qualifications, releases, default judgment, and privileges lend important guidance to practitioners, judges, and scholars in the area of trial practice and procedure. The most significant legislative development of trial practice and procedure addressed the longstanding "vanishing venue" doctrine.

II. Case Law

A. The Professional Negligence Pleading Requirement of O.C.G.A. section 9-11-9.1

As usual, the most frequently litigated area during the survey period was the professional negligence pleading requirement of O.C.G.A. section 9-11-9.1, a statute passed with the promise that it would reduce unnecessary litigation in malpractice cases. Trial practitioners are indeed fortunate that this statute exists to diminish litigation if the litigation prompted by this statute is any indication of this pressing need.

The case of Phoebe Putney Memorial Hospital v. Skipper¹ provides a telling example of the litigation boom spawned by O.C.G.A. section 9-119.1.² The pleading requirement issue was addressed at every level up to the supreme court and then re-addressed on remand by the court of appeals. In the last leg of the marathon litigation, focusing almost exclusively on plaintiff's pleading proficiency, the court of appeals held the lack of a valid jurat on the affidavit renders the affidavit voidable but not void, such that an original, properly executed affidavit can be substituted before the trial court's ruling on the defendant's motion to dismiss in order to save the claim.³

The 1997 amendments to the statute liberalizing the requirements and softening the penalty for noncompliance did not apply in Skipper, but "since the Supreme Court construed the amendment as an affirmation of legislative intent already implied, that intent [was] honored in construing the former version."⁴ If the amended version had applied, however, subsection (d) would have expressly saved the claim under the facts of the case because it allows a plaintiff to cure a defective affidavit.⁵ Comparing the holdings of Skipper and Davis v. Kaiser Foundation Health Plan of Georgia, Inc. ,⁶ a case discussed elsewhere in this Article in connection with reimbursement claims made by healthcare insurance providers, one can only guess when a legislative enactment is presumed to change existing law and when it is deemed to be an affirmation of existing legislative intent or public policy. The cases provide no clear answer.

Harris v. Murray⁷ makes clear that the 1997 amendments to O.C.G.A. section 9-11-9.1 do not apply retroactively, despite the statute's being deemed "procedural," as opposed to "substantive."⁸ The legislature is free to prescribe only prospective application for even a procedural statute, which is what it did with respect to the 1997 amendments.⁹

The court of appeals in Harris also held that an affidavit is no less an affidavit because the witness was not formally administered an oath at the time and place of execution.¹⁰

It is not necessary that the oath administered be formal, nor is it necessary that any exact words or specific ceremony be used to constitute a valid administration of an oath. "What the law requires is that there must be, in the presence of the officer, something done whereby the person to be bound consciously takes upon himself the obligation of an oath."¹¹

This holding is not only in accord with age-old case law cited by the majority opinion, but is also consistent with the practices of real world notary publics everywhere. If the law were suddenly to require some formal, ceremonial administration of an oath, as suggested by Judge Andrews in his dissent urging dismissal of plaintiff's case for lack of ceremony, most affidavits around the state would become nullities, creating perhaps even more unnecessary litigation than O.C.G.A. section 9-11-9.1.¹²

Another intriguing question recently decided by the court of appeals is whether a malpractice suit is void, or merely voidable, because the affiant in deposition is unable to confirm the acts of negligence to which he testified in his initial malpractice affidavit filed contemporaneously with the complaint.¹³ For if the suit is a nullity, then it cannot be dismissed and refiled successfully under Georgia's Renewal Statute.¹⁴

In Sawyer v. DeKalb Medical Center, Inc.,¹⁵ the court of appeals decided this issue, which was inspired by O.C.G.A. section 9-11-9.1. In that case, plaintiff's medical affiant, Dr. Bryant, apparently drew a blank when asked about the hospital's negligence in his deposition. Plaintiff dismissed her case and refiled within six months pursuant to O.C.G.A. section 9-2-61, the Renewal Statute, attaching the affidavit of a different, presumably less forgetful physician.¹⁶ The court held that the initial suit was merely voidable because the first affidavit, as filed, was admittedly sufficient in and of itself and because objections to the plaintiff's failure to comply with O.C.G.A. section 9-11-9.1 could be waived.¹⁷ Such a determination comports with the policy of the Georgia Civil Practice Act that requires the court to liberally construe pleadings, including malpractice affidavits, in favor of the pleader, "so long as such construction does not detract from the purpose of section 911-9.1 of reducing the number of frivolous malpractice suits."¹⁸

B. The Renewal Statute

What is a plaintiff's lawyer to do if he properly sues the tortfeasor in a case arising from a motor vehicle collision only to find out after the expiration of the statute of limitations that the liability insurer is insolvent? The answer to this question was reaffirmed this survey period: dismiss and refile under O.C.G.A. section 9-2-61, the Renewal Statute. The case that paved the way for this successful tactic is Stout v. Cincinnati Insurance Co.¹⁹

In Stout the Supreme Court of Georgia reaffirmed the principle that service upon an uninsured or underinsured motorist carrier is not the same as the service required to make an entity a party to the underlying tort action, but is, instead, merely a vehicle to provide notice of the existence of a lawsuit in which the insurer may ultimately be held financially responsible.²⁰ It is the validity of the service of the underlying lawsuit on the defendant which ultimately controls.²¹ Otherwise, an insurance company that is not a party to the lawsuit would be

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13. See Sawyer v. DeKalb Med. Ctr., Inc., 234 Ga. App. 54, 506 S.E.2d 197 (1998).

14. See O.C.G.A. Sec. 9-2-61 (1982 & Supp. 1999).

15. 234 Ga. App. 54, 506 S.E.2d 197 (1998).

16. Id. at 54, 506 S.E.2d at 198.

17. Id. at 55-57, 506 S.E.2d at 199-200.

18. Id. at 56-57, 506 S.E.2d at 200.

19. 269 Ga. 611, 502 S.E.2d 226 (1998).

20. Id. at 611-12, 502 S.E.2d at 227.

21. Id. at 612, 502 S.E.2d at 227. permitted to assert a defense not even available to the defendant.²² Therefore, service upon an uninsured or underinsured motorist carrier is valid if it would be valid upon the defendant in the case.

The holding in Stout eliminates the harsh results that would otherwise befall a plaintiff who discovers the insolvency of the liability insurer only after the expiration of the statute of limitations by providing such plaintiff with an escape hatch. Still, under this law a plaintiff is forced to execute a number of seemingly pointless machinations—she must dismiss a valid action against a properly served defendant and refile the action, serving the same defendant again along with the insurance carrier. This exercise seems unnecessary in light of the late Justice Weltner's suggestion in the case of Bohannon v. J.C. Penney Casualty Insurance Co.,²³ echoed by Justice Fletcher in his special concurrence in Stout,²⁴ that under such circumstances the plaintiff ought to be allowed "to serve the [uninsured motorist] carrier 'as soon as reasonably possible after becoming aware, by whatever means, that there is substantive doubt as to the existence of adequate insurance coverage of an event that might become the subject of an uninsured motorist claim.'"²⁵

C. Summary Judgment Standard in "Slip and Fall" Cases

During the most recent survey period, one thing has become crystal clear to the plaintiffs' and defense's bars: the lower courts have taken the supreme court's admonition in Robinson v. Kroger Co.²⁶ quite seriously. In that landmark opinion, analyzed in detail last survey period,²⁷ the supreme court brought the standard for granting summary judgment in slip and fall cases back in line with the standard applied in negligence cases generally.²⁸ During the most recent survey period, cases that in previous years would have been doomed to summary judgment are suddenly viable as a matter of law. In fact, this survey period marks the return of a near-extinct species of appellate opinion—the reversal of a trial court for granting summary judgment in slip and fall cases.

One prime example of the havoc wreaked by Robinson on the hopes for summary judgment harbored by premises owners is the case of Flournoy v. Hospital Authority of Houston County.²⁹ In that case, citing the supreme court's statement that "the 'routine' issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication,"³⁰ the court of appeals reversed the trial court's grant of summary judgment.³¹ Setting up a stark contrast between pre- and post-Robinson slip and fall law, the court overruled the case of Manley v. Gwinnett Place Associates,³² a case that barred a plaintiff from recovery as a matter of law because she was...