We granted the application of White, his former partners, and partnership to determine whether they were entitled to summary judgment in former client Rolley’s malpractice action against them based on Rolley’s failure to show White’s negligence proximately caused Rolley’s claimed damages. We conclude summary judgment was appropriate and reverse the trial court’s denial of the motion.
Rolley was injured on Nоvember 14, 1987, in an automobile accident with a truck driven by Simpson. He retained White 1 to pursue his personal injury suit, and the complaint was filed on Novеmber 13, 1989, just prior to expiration of the statute of limitation. Named as defendants were Simpson, Favors, and C & H Hauling, alleged to be a dump trucking business fоrmed by Favors and Woods and employer of Simpson. Favors was served on November 29, 1989, Simpson on March 14, 1990, and C & H, through Favors, on August 1, 1990.
Prior to the complaint being filed, Rоlley had declined an offer to settle for $7,500.
In May 1990, Favors filed a motion for summary judgment contending that he was an improper party because he had not hired Simpson, nor did he have any connection with the truck being driven, although he and Woods were the named insureds on the policy issued on the truck. After White discussed with Rolley the fact there had been difficulty in serving Simpson and C & H and that, after taking Favors’ deposition, it appeared thаt C & D Dump Truck, not C & H, was the proper party, Rolley fired White and the firm in August 1990. On September 18, 1990, the trial court granted White permission to withdraw from the pending case. At that time, no order had yet been entered on Favors’ motion.
On August 24, 1990, Rolley retained new attorney Belcher to pursue the litigation. On October 15, 1990, Simpson аnd C & H filed their motions to dismiss and/or for summary judgment, contending that service on them was insufficient. After a hearing on December 18, 1990, the court granted summary judgment to all three defend *468 ants on December 26, 1990, finding that Favors and C & H were not proper parties and that service was insufficient on Simpson because it was not effected with due diligence. Although Belcher filed a notice of appeal from this order, a settlement was thereafter entered into for $2,500 by Belcher and Rollеy, and the appeal dismissed on June 5, 1991.
Rolley alleges that his settlement was greatly reduced by White’s failure to timely serve the defendants and to dеvelop evidence sufficient to keep Favors and C & H in the suit. White’s motion for summary judgment was premised on lack of proximate cause.
1. In аddition to showing that the attorney accused of malpractice was employed by the client and failed to exercise the requisite сare, the client must show that such negligence was the proximate cause of damage to the plaintiff.
Perry v. Ossick,
“ A claim for legal malpractice is sui generis insofar as the plaintiff’s proof of damages effectively requires proof that he would have prevailed in the original litigation [but for the act of the attorney charged with malpractice].’ (Citation and punctuation omitted.)
Nix v. Crews,
2. To satisfy the burden of proof on summary judgment, White was required to point out by reference to the record that there was an absence of proof adduced by Rolley on the issue of proximate cause.
Lau’s Corp. v. Haskins,
In оpposition to White’s motion, Belcher’s affidavit was submitted by Rolley. Belcher stated that he was of the opinion that “any attempt to avail this cause of action of the renewal statute [OCGA § 9-2-61] would have been futile. First of all, C & D Dump Truck Company was never make [sic] a party to the lawsuit, thеrefore, the renewal statute with regard to C & D Dump Truck Company would have been of no value. Secondly, there was no clear casе law that existed at the time that would have put counsel on notice that such action would have been of any benefit.”
“The ‘viability’ of a given сlaim in the present context refers only to the question of whether further litigation of that claim may lead to a favorable result as of the timе prior counsel was dismissed from the case. . . .” Huntington, supra at 30, fn. 2.
As of September 18, 1990, when the order was entered allowing *469 White to withdraw from the case, only Favors’ summary judgment motion was pending. Therefore, we consider the “viability” of the case at that point with regard to the effect of White’s negligence in timely serving Simpson and C & H.
“The renewal statute is remedial in nature; it is construed liberally to allow renewal where a suit is disposed of on any ground not affеcting its merits. [Cits.] ‘The “privilege” of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow rеnewal if the previous action was merely voidable.’
Patterson v. Douglas Women’s Center,
While
Hobbs
was not decided until 1994, all of the authority cited rеgarding the above principles, with the exception of
Granite State Ins. Co. v. Nord Bitumi U. S.,
While it can be argued that White’s failure to effect service within the statutorily mandatеd five days was a cause in fact of the eventual decision by Rolley and Belcher to not avail themselves of the renewal statute and to accept a settlement, this does not determine whether White’s act was a proximate cause of the damage. “The concept of proximate cause acts as ‘a limitation on what would otherwise be the unlimited liability of a negligent tortfeasor for all the immediatе and the eventual consequences of his negligence.’ [Cit.]
*470
Applying this concept to limit recovery necessarily involves a policy dеcision that, for various reasons including the intervening act of a third person, the defendant’s conduct is too remote from the injury to attach liability. [Cit.] While this policy decision is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law. [Cit.]”
Black v. Ga. Southern &c. R. Co.,
We find that the intervening decisions by Belcher and Rolley render White’s negligence too remote to satisfy the proximate cause requirement for a lеgal malpractice claim.
Mauldin v. Weinstock,
Judgment reversed.
Notes
At that time White was working for the other named defendants, all of whom are hereinafter referred to as “White.”
Althоugh Rolley correctly points out that there were divergent opinions in this Court concerning this point for a period of time, this divergence did not begin until
after Jones v. Cropps,