concurring in part and dissenting in part.
I fully agree with Division 1 of the majority opinion that, the present state of the law requires the contemporaneous filing of an OCGA § 9-11-9.1 expert’s affidavit in a tort action alleging the negligent application of pesticides. I respectfully dissent from Division 2 and from the judgment of affirmance, as it is my view that the trial court erred in denying plaintiffs an opportunity to amend the procedural error in failing to file such an OCGA § 9-11-9.1 expert’s affidavit in the case sub judice. No binding precedent from this Court required such contemporaneous filing at the time this action was commenced. In my view, the majority opinion fails to apply the latest consideration of this question by the Supreme Court of Georgia, Harrell v. Lusk, 263 Ga. 895 (439 SE2d 896). In so doing, the majority demands of plaintiffs’ counsel a prescience hitherto unexpected of mortal practitioners of the law. Plaintiffs contend the trial court erred in denying them “leave to amend their Complaint to attach an affidavit . . . *65when the question of whether a negligence action against an exterminator was subject to the affidavit requirement had not been decided at the time [plaintiffs] filed their Complaint.” I agree.
In Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197), the Georgia Supreme Court held “that the affidavit requirements of [OCGA] § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-l-24[, citing] Justice Weltner’s special concurrence to Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499 (397 SE2d 294) (1990).” By its terms, OCGA § 43-1-24 refers only to those persons “licensed by a state examining board and who [practice] a ‘profession,’ as defined in Chapter 7 of Title 14, the ‘Georgia Professional Corporation Act,’ or who renders ‘professional services,’ as defined in Chapter 10 of Title 14, ‘The Professional Association Act[.]’ ” (Emphasis supplied.) The professions enumerated at OCGA § 14-7-2 (2), as recited by Justice Weltner in his special concurrence are: “certified public accountancy, architecture, chiropractic, dentistry, professional engineering, land surveying, law, psychology, medicine and surgery, optometry, osteopathy, podiatry, veterinary medicine, registered professional nursing, or harbor piloting.”
Colston v. Fred’s Pest Control, 210 Ga. App. 362 (436 SE2d 23), which first applied OCGA § 9-11-9.1 to actions against exterminators, was not decided by this Court until September 1, 1993. This was six months after the filing of the complaint in the case sub judice, and even then-was, under Court of Appeals Rule 35 (b), now Rule 33 (a), “a physical precedent only.” As recently as March 11, 1994, the Supreme Court of Georgia found it necessary to augment the list of professions as set forth in Gillis v. Goodgame, 262 Ga. 117, supra, and at the same time draw a distinction “between those occupations included in Title 43 where licensure involves merely registration . . . and those occupations where licensure is conditioned upon the state examining board’s determination that the applicant successfully completed the schooling and/or training upon which licensure is statutorily preconditioned.” Harrell v. Lusk, 263 Ga. 895, 896, fn. 2, supra. It is my view that, the majority court errs in concluding that reference to OCGA § 43-1-24 was sufficient to place potential plaintiffs and their counsel on notice that exterminating services constitute a profession such as to invoke the pleading requirements of OCGA § 9-11-9.1. “[Although ordinarily this Court would rule that [plaintiffs’ original] complaint, filed withfout] the affidavit of a licensed [exterminator], should be dismissed with prejudice pursuant to OCGA § 9-11-9.1 (f), that result would be unfair in this case. As in Lutz v. Foran, 262 Ga. 819 (4) (427 SE2d 248) (1993), this is an instance in which it was unclear at the time [plaintiffs] filed [their] initial suit [on March 16, 1993,] whether OCGA § 9-11-9.1 applied to claims [the gravamen of *66which was] malpractice against [exterminators]. Thus, it would be manifestly unfair to apply OCGA § 9-11-9.1 (f) to the case at bar. [Cit.]” Harrell v. Lusk, 263 Ga. 895, 898, supra. In my view, the judgment in the case sub judice should be reversed and the case remanded to the trial court with direction to reinstate plaintiffs’ complaint upon filing of an expert’s affidavit as required by OCGA § 9-11-9.1 within a reasonable time from the date of judgment. As the majority would affirm, I respectfully dissent in part.
Decided June 29, 1995 Reconsideration denied July 24, 1995 Custer & Custer, Cawthon H Custer, Black & Black, Eugene C. Black, Jr., Lewis R. Lamb, for appellants. Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, for appellee.I am authorized to state that Judge Blackburn joins in this opinion.