JNJ FOUND. SPECIALISTS v. DR Horton, Inc.
311 Ga. App. 269
| Ga. Ct. App. | 2011Background
- Georgia Court of Appeals reviews summary judgments in a multi-case action arising from a 2006 automobile collision near a subdivision developed by D.R. Horton.
- Hall sued the second-driver, D.R. Horton, and John Doe, alleging, among other things, negligent lane closure markings and hazard creation; Horton impleaded contractors and insurers via third-party complaints.
- JNJ Foundation Specialists contracted with Horton to pour entry sidewalks; indemnity/defense duties were at issue under the contract.
- The record shows JNJ allegedly placed barriers in the roadway and that Brent Scarbrough & Company was involved with traffic control and lane closure responsibilities.
- The court granted Horton summary judgment on JNJ’s indemnity duty, denied other motions, and later addressed issues involving Columbia National, Westfield, Brent Scarbrough, and related indemnity/notice provisions across four case numbers (A11A0542–A11A0545).
- Judgments: A11A0542–A11A0544 affirmed; A11A0545 reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indemnity scope for JNJ under the Horton contract | JNJ did not place barriers and the claim isn’t within JNJ’s work. | Indemnity covers claims arising out of JNJ’s work; barriers were part of site work. | Affirmed: contract indemnity coverage upheld; judge not in error. |
| Duty to defend/indemnify under arising-out language | Hall’s complaint arose from JNJ’s work. | Arising out includes broad causal connection; not strictly proximate cause. | Affirmed: duty to defend/indemnify affirmed for JNJ. |
| Columbia National’s notice and defense obligations | Delays in notice were justified; insurer owed defense. | Notice not timely; insurer had no duty. | Issues of fact remain; summary judgment improper regarding notice and defense. |
| Westfield/Scarbrough as additional insured and notice timing | D.R. Horton’s notice sufficed; continued to later notice fine. | Notice timing was improper; late notice voids coverage. | Denial of Westfield’s motion affirmed on timeliness; reasonable under circumstances; no rule-ing error. |
| Brent Scarbrough indemnity against Horton | Indemnity clause broad; Scarbrough liable for traffic-control failures. | No direct evidence of Scarbrough’s fault; indemnity should not apply. | Reversed: indemnity clause covers Scarbrough-related claims; Horton entitled to judgment. |
Key Cases Cited
- BBL–McCarthy, LLC v. Baldwin Paving Co., 285 Ga.App. 494, 646 S.E.2d 682 (Ga. App. 2007) (indemnity scope and 'arising out of' meaning broad connection)
- Ins. Co. of Pa. v. APAC-Southeast, 297 Ga. App. 553, 677 S.E.2d 734 (Ga. App. 2009) (duty to defend depends on potential coverage)
- Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 556 S.E.2d 465 (Ga. App. 2001) (notice/defense requirements and prejudice considerations)
- Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 474 S.E.2d 46 (Ga. App. 1996) (as soon as practicable notice rules; reasonableness standard)
- Gibson v. Dempsey, 167 Ga. App. 23, 306 S.E.2d 32 (Ga. App. 1983) (timeliness of notice; reasonableness under circumstances)
- plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 537 S.E.2d 165 (Ga. App. 2000) (reasonableness/fact-specific notice determinations)