After Gilmore fell from a highway overpass, he sued the corporate roadway contractors, the Georgia Department of Transportation (“DOT”), and ten employees of DOT, three of whom were McGarr, Lowman, and Mailhot (“employees”). He alleged that the individual and corрorate defendants
Upon remittitur, Gilmore moved to revise the judgment, arguing that evidence acquired since the appeal showed that the employees were not professional engineers, nor qualified to be such, and consequently could not claim the extension of time provisiоn granted by OCGA § 9-11-9.1 (c). The court granted the motion and reinstated default judgments for $2,150,000 against McGarr, Lowman, and Mail-hot. The court relied upon the portion of our earlier opinion that stated: “The applicability of this holding is necessarily limited to those defendants against whom professional mаlpractice is alleged or implied.” Dept. of Transp., supra at 658 (2).
The employees appeal, as permitted by the trial court’s authorization as provided by
The trial court, and Gilmore, misunderstаnd the sentence quoted from ohr earlier opinion and ignore the statement that “Gilmore made the same general allegations of nеgligence against all defendants.” Dept. of Transp., supra at 658. It is what is in the complaint, not what is alleged or proved afterwards, that governs whether the extеnsion for the answer is afforded to defendants. By invoking the grace period for the affidavit as provided by OCGA § 9-11-9.1 (b) and by relating that affidavit to all defendants by way of general allegations of negligence directed to all, Gilmore automatically activated the statute’s provision giving defendаnts the same period of time from the filing of the affidavit as they would have had from the service of the complaint if it had not been an affidavit case. It is a practical and efficient provision, allowing a single answer when the complaint is complete and thereby avoiding the necessity for a defendant to file an answer to the affidavit-less complaint and then amending the answer or supplementing it to respond to thе affiant’s assertions. As made clear in our original opinion in this action, “the express invocation of the 45-day extension of time to file an еxpert’s affidavit, allegedly because of the imminent running of the statute of limitation and the time constraints in obtaining the affidavit, as provided by OCGA § 9-11-9.1 (b), causеd the time to file an answer to the complaint and affidavit to be extended for the 30-day period as provided by OCGA § 9-11-9.1 (c), and appellee is estopped to argue otherwise. See OCGA § 24-3-30.” (Emphasis omitted.) Dept. of Transp., supra at 658 (2).
This estoppel is based not upon the professional status of the defendants but upon the allegations of Gilmore’s complaint. He did not distinguish between these employees, who the trial court subsequently found are not “professional engineers” and do not “possess the qualifications to be professional engineers,” and those defendants against whom he asserted professional negligence. If, as he says, he could not do so until after he filed suit and conducted the discovery which is thereby authorized under the Civil Practice Act, it is of no consequence to the issue at hand. A finding that these employees are not subject to a professionаl negligence claim relieves Gilmore of the burden of proving professional negligence dependent on expert testimony showing their departure from professional standards; he need prove only simple negligence against such employees. But it does not relate back to establish thе time within which these employees were required to answer the complaint alleging professional negligence against them.
We note that a plaintiff’s dilemma of having to determine at the complaint stage which defendants are in the professional status category will arise оnly when plaintiff does not file a contemporaneous affidavit. When the affidavit is filed with the complaint, all defendants, whether professional or not, have 30 days from the date of service to answer it.
In taking advantage of the statutory grace period for the completion of his complaint, Gilmore afforded all defendants in this case a delay in the time required for their answer, to be measured from the time his complаint was complete. A plaintiff cannot sabotage a defendant by invoking an extension for himself and then, after defendant relies on his correlative extension, say the latter did not apply because plaintiff did not need an extension as to this defendant. The Civil Practice Act is foundеd on the principle of notice pleading. Plaintiff’s notice to defendant that he asserts a professional negligence claim brings to it the procedures outlined in OCGA § 9-11-9.1.
Thus, Gilmore’s contention that the court had power to revise the judgment because new evidence came tо light based upon depositions of the employees, see Lee v. Dept. of Transp.,
Infusing the whole debate about this procedural issue is the simple notion that Gilmore shows no harm whatsoever flowing to himself or to like-situated plaintiffs, other than the loss of a non-favored default judgment, see Ewing v. Johnston,
Judgment reversed.
Notes
No separate category was mentioned for DOT.
These were the only defendants left in the suit, since the contractors and one DOT employee were dismissed without prejudice and one employee was never served.