Milliken & Company v. Georgia Power Company

Citation: 811 S.E.2d 58Docket: A17A1706; A17A2027; A17A2028; A17A2029; A17A2030; A17A2031

Court: Court of Appeals of Georgia; February 13, 2018; Georgia; State Appellate Court

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Motions for reconsideration must be received in the clerk's office within ten days of the decision date to be considered timely. In the Court of Appeals of Georgia case A17A1706; A17A2027; A17A2028; A17A2029; A17A2030; AN-061 A17A2031, Milliken Company appealed the trial court’s summary judgment in favor of Georgia Power Company regarding six cross-claims stemming from lawsuits related to an airplane crash near Thomson-McDuffie County Airport. The lawsuits alleged wrongful death and personal injury due to negligence by multiple defendants, including Milliken and Georgia Power. The crash occurred when the airplane, after aborting a landing, struck a Georgia Power transmission pole located on Milliken’s property, which was placed under an easement granted to Georgia Power in 1989.

Plaintiffs claimed the pole was improperly positioned and constructed, contributing to the crash. Milliken's cross-claims against Georgia Power were based on a hold harmless provision in the easement, asserting that Georgia Power was contractually liable for damages that plaintiffs might recover from Milliken. Georgia Power sought summary judgment, arguing that the easement's language did not constitute an indemnity agreement and, even if it did, such an agreement would be void as against public policy. The trial court granted summary judgment for Georgia Power on all cross-claims, leading to Milliken's appeal. The cross-claims asserted that Georgia Power might be liable to Milliken for damages resulting from plaintiffs' claims that Milliken's negligence contributed to the crash.

Milliken claims Georgia Power is contractually liable for damages arising from Milliken’s negligence based on an easement provision requiring Georgia Power to hold Milliken harmless for damages resulting from Georgia Power’s construction and maintenance activities. Milliken’s cross-claims argue that this easement provision absolves it of liability for its own negligence. However, under OCGA 13-8-2 (b), any agreement that indemnifies a party for damages due to its sole negligence is void and against public policy, unless specifically permitted by statute. This statute, applicable at the time the 1989 easement was executed, makes such indemnification provisions unenforceable, including for damages resulting from bodily injury or death. The statute has since been amended to explicitly include "death" in its language. To be within the scope of OCGA 13-8-2 (b), an indemnification provision must relate to construction-related agreements and promise to indemnify for sole negligence. Georgia courts interpret this statute broadly compared to jurisdictions with similar laws.

The anti-indemnity provisions outlined in OCGA 13-8-2 (b) have been interpreted broadly, applying not only to traditional construction contracts but also to various agreements such as those involving design engineers, subcontractors, and property management, regardless of their direct connection to building construction. The easement agreement between Milliken and Georgia Power falls under the statute's definition, as it pertains to the construction, alteration, repair, or maintenance of electric transmission structures. Additionally, the statute requires that the indemnity provision seeks to indemnify for the indemnitee's sole negligence. Milliken's cross-claims assert that Georgia Power is contractually obligated to indemnify for damages resulting solely from Milliken's negligence. Therefore, the easement provision meets both conditions of OCGA 13-8-2 (b), rendering any indemnity clause that seeks to impose liability on Georgia Power for Milliken's sole negligence void and unenforceable due to public policy. The trial court's decision to grant summary judgment to Georgia Power on Milliken's cross-claims was upheld, affirmed under the right for any reason rule across multiple case numbers.