Milliken & Company v. Georgia Power Company , 811 S.E.2d 58 ( 2018 )

THIRD DIVISION
DILLARD, P. J.,
ANDREWS and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 13, 2018
In the Court of Appeals of Georgia
A17A1706; A17A2027; A17A2028; A17A2029; A17A2030; AN-061
A17A2031. MILLIKEN & COMPANY v. GEORGIA
POWER COMPANY.
ANDREWS, Judge.
Milliken & Company brought the above appeals from the trial court’s grant of
summary judgment in favor of Georgia Power Company on six identical cross-claims
filed by Milliken in related lawsuits arising out of an airplane crash. We consolidate
the appeals for consideration in this opinion, and for the following reasons affirm the
trial court’s grant of summary judgment in all six cases.
These appeals arise from lawsuits brought on behalf of passengers and pilots
killed or injured when the airplane they occupied crashed near the Thomson-
McDuffie County Airport. The suits asserted claims for wrongful death and personal
injury damages arising from the crash and alleged that multiple defendants
negligently caused the crash, including Milliken and Georgia Power. The plaintiffs
alleged that the plane aborted an attempt to land on the airport runway, and that,
while the plane gained altitude from the runway to go around for another landing
attempt, it struck a Georgia Power transmission pole located a distance from the end
of the runway on property owned by the Milliken manufacturing plant adjacent to the
airport. The plaintiffs’ negligence claims against Milliken and Georgia Power are
based on allegations that the transmission pole was negligently placed and
constructed too close to the end of the runway, too high, and encroached on the
airport easement, and that this was a contributing cause of the plane hitting the pole
and crashing. The Georgia Power transmission pole was located on Milliken property
pursuant to an easement over the property given by Milliken to Georgia Power in
August 1989 which permitted Georgia Power to construct the pole and related
structures to provide electricity to the Milliken plant. The written easement contained
a provision which stated:
[Georgia Power], it successors or assigns shall hold [Milliken], its
successors or assigns harmless from any damages to property or persons
(including death), or both, which result from [Georgia Power’s]
construction, operation or maintenance of its facilities on said easement
areas herein granted.
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Relying on this provision, in each suit Milliken filed an identical cross-claim pursuant
to OCGA § 9-11-13 (g) against co-defendant Georgia Power asserting that Georgia
Power is contractually liable to Milliken “for all sums that Plaintiffs may recover
from Milliken.” Georgia Power moved for summary judgment on the cross-claims
asserting various grounds including: (1) that the hold harmless language in the
easement provision at issue cannot be construed as an agreement by Georgia Power
to indemnify Milliken for third party claims by the plaintiffs against Milliken; and (2)
that, even if the easement provision could be construed to require Georgia Power to
indemnify Milliken for damages the plaintiffs may recover against Milliken, this
construction would render the easement void as against public policy. The trial court
granted summary judgment in favor of Georgia Power on all of the cross-claims, and
Milliken appealed.
A party bringing a cross-claim is asserting “that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a claim asserted in
the action against the cross-claimant.” OCGA § 9-11-13 (g). Fowler v. Vineyard, 261
Ga. 454, 457 (405 SE2d 678) (1991). Under the cross-claims brought pursuant to
OCGA § 9-11-13 (g), Milliken asserts that co-defendant Georgia Power is
contractually liable for all damages the plaintiffs recover against Milliken based on
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the plaintiffs’ claims that Milliken’s negligence caused or contributed to the crash.
Milliken’s only basis for asserting that Georgia Power is contractually liable for
damages the plaintiffs recover for Milliken’s negligence is the easement provision
stating that Georgia Power shall hold Milliken harmless “from any damages to
property or persons (including death), or both, which result from [Georgia Power’s]
construction, operation or maintenance of its facilities.” To the extent the plaintiffs
recover damages against Milliken based on Milliken’s alleged negligence in
permitting Georgia Power to construct, operate, or maintain electric transmission
facilities in the easement area, Milliken’s cross-claims are based on the contention
that the easement provision contracts away Milliken’s liability for the consequences
of its own negligence. Even assuming (for purposes of deciding the viability of the
cross-claims) that the easement provision may be so construed, “[a]s a general rule
a party may contract away liability to the other party for the consequences of his own
negligence without contravening public policy, except when such an agreement is
prohibited by statute.” Lanier at McEver, L.P. v. Planners and Engineers
Collaborative, Inc., 284 Ga. 204, 205 (663 SE2d 240) (2008) (citation and
punctuation omitted). We find that OCGA § 13-8-2 (b) applies to the easement
provision at issue and renders void as against public policy any provision in the
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easement making Georgia Power contractually liable to Milliken for damages
recovered by the plaintiffs against Milliken based solely on Milliken’s negligence.
At the time the 1989 easement agreement was entered into, OCGA § 13-8-2 (b)
provided that:
A covenant, promise, agreement, or undertaking in or in connection with
or collateral to a contract or agreement relative to the construction,
alteration, repair, or maintenance of a building structure, appurtenances,
and appliances, including moving, demolition, and excavating connected
therewith, purporting to indemnify or hold harmless the promisee
against liability for damages arising out of bodily injury to persons or
damage to property caused by or resulting from the sole negligence of
the promisee, his agents or employees, or indemnitee is against public
policy and is void and unenforceable, provided that this subsection shall
not affect the validity of any insurance contract, workers’ compensation,
or agreement issued by an admitted insurer.1
1
Contracts are construed under the law in effect at the time the contract was
made. Oravec v. Phillips, 298 Ga. 846, 848 (785 SE2d 295) (2016). When the
easement at issue was made in 1989, the then-existing provisions of OCGA § 13-8-2
(b) made void as against public policy any agreement “purporting to indemnify or
hold harmless the promisee against liability for damages arising out of bodily injury
to persons or damage to property caused by or resulting from the sole negligence of
the promisee . . .” As to the phrase “liability for damages arising out of bodily injury
to persons,” our courts have construed this language in the statute to include liability
for damages arising out of a person’s death resulting from bodily injury. See Frazer
v. City of Albany, 245 Ga. 399, 402 (265 SE2d 581) (1980); McAbee Const. Co. v.
Georgia Kraft Co., 178 Ga. App. 496, 496-497 (343 SE2d 513) (1986); World
Championship Wrestling, Inc. v. City of Macon, 229 Ga. App. 248, 249 (493 SE2d
629) (1997). As part of amendments to OCGA § 13-8-2 (b) made in 2007, the word
“death” was added to the statute so that the above phrase now reads “liability or
claims for damages, losses, or expenses, including attorney fees, arising out of bodily
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To fall within OCGA § 13-8-2 (b), a provision to indemnify must satisfy two
threshold conditions. The provision must “(1) relate in some way to a contract for
‘construction, alteration, repair, or maintenance’ of certain property and (2) promise
to indemnify a party for damages arising from that own party’s sole negligence.”
Kennedy Dev. Co. v. Camp, 290 Ga. 257, 259 (719 SE2d 442) (2011). With respect
to the first threshold condition, “Georgia courts have consistently construed this
statute more broadly than courts in other jurisdictions have construed analogous
statutes.” Id. As noted in Kennedy Dev. Co., in addition to its application to more
traditional construction contracts, the anti-indemnity provisions in OCGA § 13-8-2
(b) have been broadly construed to apply to a developer’s contract with engineers for
design of an apartment drainage system, to a contract between a construction
injury to persons, death, or damage to property caused by or resulting from the sole
negligence of the indemnitee . . .” Ga. L. 2007, p. 208. We presume the legislature
enacted the 2007 amendments with knowledge of the existing law, including prior
judicial decisions construing OCGA § 13-8-2 (b) to apply to liability for damages
arising out of a person’s death resulting from bodily injury. Retention Alternatives,
Ltd. v. Hayward, 285 Ga. 437, 441 (678 SE2d 877) (2009). Accordingly, we find that
by including the word “death” in the 2007 amendments the legislature did not make
a substantive change to the statute adding damages not covered by the original
statute, but intended to clarify and harmonize the statute in accordance with the
existing judicial decisions. Parker v. Lee, 259 Ga. 195, 198 (378 SE2d 677) (1989)
(“[C]ourts should construe statutes in connection and harmony with existing judicial
decisions where possible.”)
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contractor and drywall subcontractor, to property management, maintenance, and
rental agreements, and to other commercial and residential property lease agreements
“bearing little or no relationship to any ostensible building construction.” Id. at 259-
260. The easement agreement between Milliken and Georgia Power governing
placement, construction, and maintenance of electric transmission structures clearly
qualifies as an agreement related to “construction, alteration, repair, or maintenance”
within the first threshold condition of OCGA § 13-8-2 (b). The second threshold
condition of OCGA § 13-8-2 (b) “requir[es] that the provision purport to indemnify
the indemnitee for its sole negligence.” Id. at 260. As set forth above, Milliken’s
cross-claims against Georgia Power are necessarily based on the contention that the
easement provision at issue makes Georgia Power contractually liable to indemnify
Milliken for any damages that the plaintiffs recover against Milliken caused solely
by Milliken’s negligence. Accordingly, we find that the easement provision satisfies
both threshold conditions for application of the anti-indemnity statute set forth in
OCGA § 13-8-2 (b). It follows that, assuming the easement provision requires the
contractual indemnity alleged in Milliken’s cross-claims, the provision makes
Georgia Power liable to indemnify Milliken for damages caused solely by Milliken’s
negligence and is void and unenforceable as against public policy as provided in
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OCGA § 13-8-2 (b). The trial court correctly granted summary judgment to Georgia
Power on all of Milliken’s cross-claims. OCGA § 9-11-56. Although the trial court
granted summary judgment for other reasons, we affirm under the right for any reason
rule.
Judgments affirmed in Case Nos. A17A1706; A17A2027; A17A2028;
A17A2029; A17A2030 and A17A2031. Dillard, C. J. and Ray, J., concur.
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