David and Kathy Paul filed a complaint alleging negligence, trespass and conversion against James P. Burke arising out of actions he undertook as an expert witness in a wrongful death lawsuit filed by Kathy Paul after her daughter, Elizabeth Ann Raulerson, died in an automobile accident. Burke moved to dismiss the Pauls’ complaint on the ground that they failed to file an expert affidavit in compliance with OCGA § 9-11-9.1.1 The trial court denied the motion, and certified the issue for immediate review. This Court subsequently granted Burke’s application for interlocutory appeal. Burke’s motion to dismiss for failure to file an expert affidavit must be considered as a motion to dismiss for failure to state a claim under OCGA § 9-11-12 b 6. Williams v. Alvista Healthcare Ctr., 283 Ga. App. 613 642 SE2d 232 2007. And such a motion will not be sustained unless:1 the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and 2 the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. Citations, punctuation and footnotes omitted. Id. at 613-614.
The Pauls owned the car involved in the fatal accident, and Kathy Paul alleged in her wrongful death action that Travis Good, Raulerson’s boyfriend, was driving it at the time of the wreck. Good was insured by Atlanta Casualty Company “ACC”, which provided him a defense to Kathy Paul’s claims. In his defense, Good alleged that Raulerson, not he, was driving the car at the time of the accident, and ACC retained Burke, a professional engineer employed by Engineering and Forensic Services, Inc., to serve as an expert witness on that issue.
