Kennedy Development Co. v. Camp
290 Ga. 257
Ga.2011Background
- Kennedy Development developed Newton’s Crest; detention pond used by Newton’s Crest pursuant to earlier Hunter’s Pond agreements.
- Tycor assigned its detention facility rights and responsibilities to Kennedy upon Kennedy’s purchase of Newton’s Crest land.
- Camps alleged runoff from Newton’s Crest caused erosion and property damage to their parcels in Gwinnett County.
- In April 2007, Kennedy assigned obligations to Newton’s Crest Homeowners’ Association (NCHA), including operation/maintenance of Newton’s Crest and the detention facility, via an Assignment and Assumption Agreement that also included an indemnity clause.
- Kennedy asserted third-party indemnity against NCHA under the clause; the trial court denied summary judgment; CA affirmed some parts and reversed on indemnity against NCHA.
- Georgia Supreme Court held OCGA § 13-8-2(b) applies to the Assignment, rendering the indemnification provision invalid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does OCGA § 13-8-2(b) apply to the Assignment Agreement? | Kennedy argues the statute governs the assignment. | NCHA contends the statute does not apply to this assignment. | Yes, statute applies. |
| Does the indemnity provision indemnify for sole negligence of the indemnitee? | Kennedy contends the clause covers all claims regardless of fault. | NCHA argues the clause targets related to construction/maintenance and is valid | Yes, indemnity covers sole negligence and is void. |
| Does the Assignment relate to construction, alteration, repair, or maintenance to bring it within the statute’s scope? | Kennedy asserts the assignment concerns maintenance/repair of the subdivision and detention facility. | NCHA contends it does relate to the contractual maintenance duties. | Yes, it relates to construction/maintenance. |
Key Cases Cited
- Lanier v. Planners & Engineers Collaborative, Inc., 284 Ga. 204 (Ga. 2008) (statute applies to liability regardless of fault during or after construction)
- Frazer v. City of Albany, 245 Ga. 399 (Ga. 1980) (indemnity for sole negligence void if covering all claims)
- May Dept. Store v. Center Developers, Inc., 266 Ga. 806 (Ga. 1996) (application of statute to leases)
- Country Club Apartments, Inc. v. Scott, 246 Ga. 443 (Ga. 1980) (statute applies to residential lease agreements)
- Terrace Shopping Center Joint Venture v. Oxford Group, Inc., 192 Ga. App. 346 (Ga. App. 1989) (statute applies to management agreements)
- National Candy Wholesalers, Inc. v. Chipurnoi, Inc., 180 Ga. App. 664 (Ga. App. 1986) (statute applies to lease of booth space at trade show)
- Big Canoe Corp. v. Moore & Groover, Inc., 171 Ga. App. 654 (Ga. App. 1984) (statute applies to property maintenance and rental agreement)