Newell Recycling, a business engaged in the purchase and processing of scrap metal, hired Jordan Jones and Goulding, Inc. (JJG), an engineering firm, to design its new automobile shredding facility. As part of its work, JJG developed a design for concrete pavement to be installed around the shredding machine to act as a work platform and to control drainage. JJG added this design to the site plans and specifications, setting out directions regarding sub-grade preparation, concrete mix and concrete thickness. All engineering work on the project was completed by September 1999. After the project was completed and the facility became operational, the concrete paving surrounding the shredder began to crack.

Newell brought a single claim for breach of contract in August 2004, noting that, by entering the contract, JJG “contracted to perform its required services with that degree of care, skill, and ability ordinarily expected of prudent design professionals and civil engineers under similar circumstances….” Newell also attached an affidavit from an engineering expert to its complaint in order to comply with O.C.G.A. § 9-11-9.1, relating to all claims for professional malpractice. Denying JJG’s motion for summary judgment, the trial court believed that the six year statute of limitations for breach of contract, found at O.C.G.A. § 9-3-24, applied, making Newell’s action timely.

The Georgia Court of Appeals disagreed. The court began by holding to a broad definition of professional malpractice claims, finding that such actions include any action that “calls into question the conduct of a professional in his area of expertise.” Goodin v. Gwinnett Health System, 273 Ga.App. 461, 462(2), 615 S.E.2d 129 (2005). Newell’s reference to JJG’s violation of a “standard of care” in its complaint was sufficient to create a claim for professional malpractice, even though it was presented as a breach of contract action. While O.C.G.A. § 9-3-24’s six-year statute of limitation does apply to written contracts, the court explained that the standard of care imposed on professionals is a function of law, implied in written contracts. Newell’s contract did not contain an express “standard of care” term. The court cited Old Republic Nat’l Title Ins. Co. v. Atty. Title Servs., No. A090999, 2009 WL 1636567 (June 12, 2009 Ga. Ct. App.) and Plumlee v. Davis, 221 Ga.App. 848, 473 S.E.2d 510 (1996) for the general proposition that the four-year statute of limitations at O.C.G.A. § 9-3-25 applies to claims for breach of contract where professional services are concerned.

Jordan Jones and Goulding, Inc. v. Newell Recycling of Atlanta, Inc., No. A09A1397, 2009 WL 2151962 (July 21, 2009 Ga. Ct. App.).