Great Plains Federal Savings & Loan Ass'n v. Dabney , 1993 Okla. LEXIS 5 ( 1993 )

SUMMERS, Justice,

concurring specially.

The majority correctly holds that our current pleading code is sufficiently liberal that plaintiff’s petition is adequate to withstand a motion to dismiss. I write separately merely to emphasize that a plaintiffs counsel does not have a choice to proceed in contract or tort depending on the client’s need to avoid a statute of limitations in a professional malpractice suit.

I would also, as does the majority, distinguish Funnell v. Jones, 737 P.2d 105, 107 (Okl.1985) from today’s case, but for a different reason. The court correctly notes that the Funnell opinion does not refer to allegations of contract. However, the appellate record in that case reveals that breach of contract was pleaded, and the contract statute of limitations was argued on appeal. Funnell is not applicable here, but only for the reason that it dealt with summary judgment rather than failure to state a claim. The majority’s treatment of Funnell is not part of the holding, is of de minimis effect, and is likely cured by the court’s explanation that a statute of limitations defense may be successfully raised in the context of summary judgment proceedings when the parties have identified with precision the exact nature of the duty that has allegedly been breached.

I continue to entertain the view expressed by us in Funnell and by the Oregon Court in Securities-Intermountain, Inc. v. Sunset Fuel Co., 289 Or. 243, 611 P.2d 1158, 1167 (1980), the latter case having been relied on by us in Flint Ridge Dev. v. Benkam-Blair & Aff., 775 P.2d 797 (Okl.1989). That view is that suits against physicians or attorneys, even though based on contracts of employment, are actions in tort, unless the parties have expressly spelled out an agreement which would commit the defendant to a certain action or result even in the absence of negligence. In other' words, professional malpractice suits are controlled by the two-year tort limitation unless there is shown an express agreement by the defendant to do more than use ordinary care in the treatment or representation of the plaintiff. I believe the Court’s opinion leaves that rule of law undisturbed.