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Court of Appeals of Georgia.


A17A1706, A17A2027, A17A2029, A17A2030, A17A2031, A18A0516

Decided: February 20, 2020

Drew Eckl & Farnham, Stevan A. Miller, Lisa R. Richardson, for appellant. Tucker Long, Benjamin H. Brewton; Balch & Bingham, Hugh B. McNatt, M. Anne Kaufold-Wiggins; Weinberg Wheeler Hudgins Gunn & Dial, David A. Dial, Thomas J. Strueber, Carol P. Michel, for appellee.

This is the second appearance of these companion appeals before this Court. In Milliken & Co. v. Ga. Power Co., 344 Ga. App. 560, 811 S.E.2d 58 (2018) (“Milliken I”), we affirmed the trial court's grant of summary judgment to defendant Georgia Power Company as to seven cross-claims filed against it by defendant Milliken & Co., the owner of the land where the plane crash that injured or killed plaintiffs and their decedents occurred. The trial court had held that a hold-harmless provision in a 1989 easement granted to Georgia Power operated as a covenant not to sue rather than an indemnity agreement. See id. at 561-562, 811 S.E.2d 58. We held that the easement provision was void as against public policy under former OCGA § 13-8-2, Georgia's anti-indemnity statute. Id. at 564, 811 S.E.2d 58. The Supreme Court of Georgia granted certiorari and reversed, holding that the easement provision was not void because it “did not require indemnification” for damages “caused solely by [Milliken's] negligence.” (Emphasis in original.) Milliken & Co. v. Georgia Power Co., 306 Ga. 6, 13 (1) (b), 829 S.E.2d 111 (2019) (“Milliken II”). Our Supreme Court then remanded the case to this Court with direction to address Milliken's original assertions on appeal. Id. at 14 (1) (b), 829 S.E.2d 111. Accordingly, we now consider whether the trial court erred in granting summary judgment on Milliken's cross-claims. Because we conclude that the easement did create an indemnity obligation in favor of Milliken, we reverse.

The relevant facts are laid out as follows in the Supreme Court's opinion in Milliken II:

In 2013, a small business jet crashed into a Georgia Power Company transmission pole on Milliken & Company's property near the Thomson-McDuffie Regional Airport in Thomson, Georgia. The two pilots were injured and the five passengers died. In the wake of the crash, the pilots and the families of the deceased passengers filed a total of seven lawsuits against multiple defendants, including Georgia Power and Milliken. The complaints in those seven suits alleged that a transmission pole located on Milliken's property was negligently erected and maintained within the airport's protected airspace. The record evidence shows that Georgia Power constructed the transmission pole on Milliken's property for the purpose of providing electricity to Milliken's manufacturing-plant expansion, and that the pole was constructed pursuant to a 1989 Easement between Georgia Power and Milliken. In each of the seven suits, Milliken filed identical cross-claims against Georgia Power, alleging that Georgia Power was contractually obligated to indemnify Milliken “for all sums that Plaintiffs may recover from Milliken” under Paragraph 12 of the 1989 Easement, which provides:

[Georgia Power] Company, its 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] Company's construction, operation or maintenance of its facilities on said easement areas herein granted.”[1]

Georgia Power moved for summary judgment on the cross-claims. The trial court granted summary judgment to Georgia Power in all seven actions, reasoning that Paragraph 12 of the 1989 Easement operates as a covenant not to sue, rather than as an indemnity agreement, because it “nowhere contains the word ‘indemnity’ ” and “it is not so comprehensive regarding protection from liability.”

(Punctuation omitted.) Milliken II, 306 Ga. at 6-7, 829 S.E.2d 111.2

On appeal, Milliken asserts that the trial court erred when it granted Georgia Power summary judgment on the cross-claims because Paragraph 12 indemnifies Milliken against all “damages,” including plaintiffs’ claims, resulting from Georgia Power's negligent construction, operation, or maintenance of the transmission pole on Milliken's property. We agree.

“The construction of a contract is a question of law for the court.” OCGA § 13-2-1. In construing a contract so as implement the intentions of the parties, a court is first required “to look to the plain meaning of the words of the contract.” (Citation and punctuation omitted.) Argo v. G-Tec Svcs., 338 Ga. App. 608, 609 (1), 791 S.E.2d 193 (2016).

[I]t is a cardinal rule of contract construction that a court should, if possible, construe a contract so as not to render any of its provisions meaningless and in a manner that gives effect to all of the contractual terms. “Words generally bear their usual and common signification; but technical words, words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.” OCGA § 13-2-2 (2). Furthermore, courts must favor a construction that upholds the contract in whole and in every part, and look at the whole contract in construing any part. OCGA § 13-2-2 (4). Courts should not render any language in a contract as superfluous, and any construction that renders portions of the contract language meaningless should be avoided.

(Citations and punctuation omitted.) Id. at 609 (1), 791 S.E.2d 193.

Specifically, “[i]n a contract of indemnity the indemnitor, for a consideration, promises to indemnify and save harmless the indemnitee against liability of the indemnitee to a third person, or against loss resulting from such liability.” (Citation and punctuation omitted.) Old Republic Nat. Title Ins. Co. v. Darryl J. Panella, LLC, 319 Ga. App. 274, 277 (1), 734 S.E.2d 523 (2012). In order to create a binding contract for indemnity, the indemnitor need only express the intent to protect the indemnitee against a loss; the contract “is not required to contain the magic word ‘indemnify.’ ” Id.; see also Black's Law Dictionary, 886 (10th ed. 2014) (defining “indemnify” as “[t]o reimburse ․․․ for a loss suffered because of a third party's or one's own act or default; hold harmless”) (emphasis supplied); Liberty Mutual Ins. Co. v. Alsco Constr., 144 Ga. App. 307, 312 (3), 240 S.E.2d 899 (1977) (agreement to hold “harmless and free of liability for injury to or death of any person or persons and for loss of or damage to” equipment was, “[u]nder clear and unequivocal standards,” “sufficient to require indemnification”) (punctuation omitted).

We cannot agree with the trial court's conclusion that Paragraph 12 amounts to a covenant not to sue. The paragraph's reference to personal injuries, including death, would be rendered mere surplusage under that reading because Georgia Power could never have standing to assert a claim for wrongful death. See Tolbert v. Maner, 271 Ga. 207, 208 (2), 518 S.E.2d 423 (1999) (because OCGA § 51-4-2 is in derogation of the common law, only those persons specified in the statute may maintain a wrongful death action); Argo, 338 Ga. App. at 609 (1), 791 S.E.2d 193 (“any construction that renders portions of the contract language meaningless should be be avoided”) (citations and punctuation omitted).

Paragraph 12 refers not to claims or suits, but rather to “damages ․ resulting from” Georgia Power's activities on the easement, and seeks to “hold [Milliken] harmless” as to “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.” It is also beyond dispute that the claims asserted by plaintiffs, whatever their ultimate merit, arise from “damages” or injury to them, “including death,” resulting from Georgia Power's “construction, operation or maintenance” of the transmission pole, located “on said easement area[ ],” into which the plane crashed. See Liberty Mutual, 144 Ga. App. at 311 (2), 240 S.E.2d 899; Rankin v. Smith, 113 Ga. App. 204, 205-207, 147 S.E.2d 649 (1966) (a party's agreement “to hold harmless and release” other parties “from any and all liability and obligations resulting from” the parties’ status as stockholders or officers was “in the nature of an indemnity contract”) (emphasis supplied).

Nor is this a case in which Milliken will be indemnified from its own negligence, which Georgia law will not authorize in the absence of an explicit undertaking by the indemnitor. Viad Corp. v. United States Steel Corp., 343 Ga. App. 609, 614-615 (1), 808 S.E.2d 58 (2017) (“[W]e will not interpret ‘contractual indemnities (to) extend to losses caused by an indemnitee's own negligence unless the contract expressly states that the negligence of the indemnitee is covered’ ”), quoting Ryder Integrated Logistics v. BellSouth Telecommunications, 281 Ga. 736, 737-738, 642 S.E.2d 695 (2007). Rather, as Milliken acknowledged below, and as our Supreme Court explained,3 Milliken cannot be owed indemnity unless Georgia Power is also found to have been negligent. See Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 50 (2), 195 S.E.2d 671 (1973) (if two defendants’ negligence “combined to cause the plaintiff's injuries,” then a provision granting indemnity by one to the other would be enforceable “under the express terms of the contract”).

For all these reasons, we conclude that Paragraph 12 of the 1989 Easement plainly includes Georgia Power's promise to indemnify Milliken from any personal injury, death, or other “damages” arising from the claims of third parties, such as plaintiffs, “result[ing] from” Georgia Power's activities on the easement. The trial court therefore erred when it granted Georgia Power summary judgment on Milliken's cross-claims for indemnity.

Judgments reversed.


1.   Our Supreme Court also noted that Paragraph 12 of the 1989 Easement granted Georgia Power a right of wayto construct, erect, install, operate, maintain, inspect, reconstruct, repair, rebuild, renew and replace thereon a substation and overhead and underground electric transmission, distribution and communication lines, with necessary or convenient towers, frames, poles, wires, manholes, conduits, transformers, switches, breakers and communication equipment, with the necessary wires, fixtures, appliances, protective wires and devices, buildings, sewers, drains, fences and other facilities in connection therewith ․․․ including the right ․ to clear, grade, fill, excavate, ditch and drain said substation tract[.](Punctuation omitted.) Id. at 8 (1) (a), 829 S.E.2d 111.

2.   Our Case Nos. A17A1706, A17A2027, A17A2029, A17A2030, and A17A2031, which were addressed in the Supreme Court's Case No. S18G0876, arise from the trial court's entry of judgment in favor of Georgia Power on Milliken's cross-claims in five plaintiffs’ actions. See Milliken II, 306 Ga. at 7, n. 1, 829 S.E.2d 111. Our Case No. A17A2028 was also remanded by the Supreme Court, see id., but was withdrawn from this Court on June 27, 2019. In Case No. S18G1107, granted as to our Case No. A18A0516 (a summary affirmance under our Rule 36), the Supreme Court vacated and remanded “for further proceedings consistent with” its opinion. Id. at 14-15, 829 S.E.2d 111. We note further that Georgia Power has not moved this Court, either on the original appeals or on remand from the Supreme Court, to supplement the record concerning an apparent defense verdict in Milliken's favor in one of the plaintiffs’ cases, which might have mooted our Case No. A17A2030. See id. at 14, n.7, 829 S.E.2d 111. We therefore take no action on the question.

3.   Milliken II, 306 Ga. at 12 (1) (b), n. 5, 829 S.E.2d 111 (“indemnification could potentially apply in certain instances where the combined negligence of Georgia Power and Milliken ․ results in damages. But none of these scenarios would implicate [OCGA § 13-8-2’s] prohibition on indemnification for an indemnitee's ‘sole negligence’ ”).

Phipps, Senior Appellate Judge.

Dillard, P. J., and Markle, J., concur.

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Docket No: A17A1706, A17A2027, A17A2029, A17A2030, A17A2031, A18A0516

Decided: February 20, 2020

Court: Court of Appeals of Georgia.

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