If it quacks like a duck …

A number of cases have found exceptions to the application of OCGA 9-11-9.1 in lawsuits against professionals, e.g., this one.  The primary exception is the allegations of “intentional” torts such as fraud or breach of fiduciary duty. 

I know ducks and sailors when I see them!

In a recent Court of Appeals decision, the trial court dismissed a lawsuit against a law firm on the basis that the Plaintiff failed to include an affidavit of merit as required by OCGA 9-11-9.1 even though the complaint alleged fraud, RICO and negligent misrepresentation.  This was not a change in the law however.  The Court held that although Plaintiff labeled his claims as intentional torts, the asserted facts alleged solely professional negligence claims.

Significantly, all of the allegations in [Plaintiff’s] complaint … concern [Defendants’] legal advice and actions taken as [Plaintiff’s] legal representative in the underlying lawsuit and bankruptcy.  …  Although [Plaintiff’s] complaint purports to state various causes of action, the substance of his allegations raise only claims of professional negligence against [Defendants].

The Court further held that the allegations in the Complaint failed to state a claim of fraud.  The new case was defended by Hawkins Parnell Thackston & Young, LLP, including the author here

At times, the distinction between what claims must comply with OCGA 9-11-9.1 seem trivial.  Nonetheless, there is case law that provides for a basis of obtaining dismissal despite the effort to raise intentional torts as exceptions to the affidavit of  merit statute. 

This opinion provides the first legal malpractice application of the holding in Goodin v. Gwinnett Health Sys., Inc., 273 Ga. App. 461, 615 S.E.2d 129 (2005).  In that case, the Court of Appeals held that OCGA 9-11-9.1 applied to an intentional tort claim of false imprisonment against a psychiatrist where the basis for the claim was the application of medical judgment in having a patient committed.

An argument may be made that despite labeling claims as something other than professional negligence or malpractice, OCGA 9-11-9.1’s affidavit requirement still applies where the alleged facts assert only a claim based on the application of professional judgment.  If it walks like a duck and quacks like a duck ….

1 Response to “If it quacks like a duck …”

  1. December 5, 2012 at 1:49 pm

    Great post. I used to be checking continuously this blog and I’m inspired! Extremely helpful info particularly the remaining part 🙂 I deal with such information a lot. I was looking for this certain information for a very lengthy time. Thank you and best of luck.

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