The appeal in this diversity case concerns whether Georgia continues to adhere to the traditional rule of lex loci contractus in conflicts of law cases or whether Georgia has adopted the Restatement (Second) of Conflicts “сenter of gravity” system. We hold that if lex loci be the Georgia rule the district court should have applied Georgia contract law. We, nevertheless, certify the question of which system a Georgia court would apply to the Georgia Supreme Court, and, should Georgia law apply, the question of whether Georgia law prohibits enforcement of a contractual indemnity provision between a third party tortfeasor and an employer who has paid workers’ compensation benefits to the injured pаrty.
The parties have stipulated to the facts. General Telephone, GTE, a Virginia corporation with its principal place of business in Durham, North Carolina, maintains a list of contractors who have qualified to bid on its construction work. To qualify for this list, a contractor must have signed an initial agreement with GTE setting forth the general terms and conditions of work. GTE submits work order proposals to these approved contractors for bids on individual jobs.
In 1973, Trimm and GTE agreed to an updated version of their original 1968 blanket agrеement. Article XII of this contract provides that a contractor will indemnify GTE from all liability and expenses from injury or property damage. 1 In February, 1973, GTE mailed two unexecuted copies of the updated agreement from its North Carolina office to Trimm in Birmingham, Alabama. On March 16,1973, Trimm executed the two copies of the standard agreement and mailed them to GTE’s North Carolina office. GTE then executed the two copies in Durham and mailed one fully executed copy to Trimm in Alabama on March 23, 1973.
From its Moultrie, Geоrgia office, GTE subsequently notified Trimm that it was accepting bids for construction of an underground system in Dalton, Georgia. Trimm submitted a bid for the project which bid incorporated the provisions of the master agreement. GTE accepted this bid on July 23, 1973 by letter mailed from its Mоultrie office to Trimm in Alabama.
On November 12, 1973, Freddie King, Jr., a Trimm employee and resident of Alabama, sustained fatal injuries during construction of the Dalton system. Trimm’s insurer subsequently paid to King’s widow workers’ compensation and funeral benefits under Alabama law. Ms. King then brought a wrongful death suit against Trimm, GTE, and two others. The Alabama circuit court dismissed the action against all defendants except GTE which *1119 settled the suit by consent judgment for $45,000.
GTE brought this action to recover the $45,000 payment from Trimm in accordance with the indemnity clause. Alabama law precludes a third party tortfeasor from obtaining indemnity against an employer who has paid worker’s compensation benefits under the Alabama statute even when the employer has agreed expressly in a contract to indemnification.
Stauffer Chemical Co. v. McIntyre Electric Service Inc.,
The district court held that a Georgia сourt would apply lex loci contractus and that receipt by Trimm in Alabama of its executed copy of the master agreement constituted the last act necessary to establish the site of the contract for conflicts analysis. The district court therefore applied Alabama law and dismissed GTE’s action.
When faced with a choice of law issue, a federal court sitting in diversity must look for its resolution to the conflicts rules of the forum state.
Klaxon Co. v. Stentor Electric Manufacturing Co.,
Under the lex loci approach, a court looks to the law of the state wherе the contract was made to ascertain whether the agreement is valid or enforceable.
Beck & Gregg Hardware Co. v. Southern Surety Co.,
As a preliminary matter, we must determine whether to examine the circumstances surrounding the mastеr agreement or the job-specific contract. We conclude that, if lex loci governs, the location of the job-specific contract establishes which state’s law would apply. This action involves the enforceability of Article XII of the mаster agreement as incorporated into the July 1973 contract covering the Dalton project. The master agreement only authorized Trimm to perform such work as it may obtain; no agreement to perform work to which Article XII would apply existed until GTE accepted Trimm’s bid on the Dalton project. We therefore must examine the indemnity clause and other provisions of the master agreement to the extent that they are included in the July 1973 contract.
Trimm argues that the determinative location under Georgia law is not where the сontract is executed but rather where it is delivered. We disagree. Both contracts resulted from offers made by letter. O.C. G.A. .§ 13-3-3 (1982) provides: “If the offer is made by letter, an acceptance by written reply
takes effect from the time it is sent
and not from the time it is received; ...” (emphasis added). Several federal and Georgia decisions broadly imply that
*1120
we should look to the place of delivery of the contract.
Residential Industrial Loan Co. v. Brown,
‘The place where a contract is made depends not upon the place where it is written, signed, or dated, but upon the place where it is delivered as consummating the bargain. Thus, the law of the place where a bill or note is written, signed, or dated does not necessarily control it but the law of the place where it is delivered from drawer or maker to payeе, or from indorser to indorsee, or has been said, where the last act essential to its completion was done, so that, where a note was executed in one State but not completed until accepted in another State, it is made in that other State.’
In the case at bar we are asked to interpret a contract for the construction of an underground piping system. Unlike an insurance agreement or a negotiable instrument, such a contract is “made” when the offer is accepted. The acceptance, not delivery, constitutes the last act essential to the completion of the contract. GTE accepted Trimm’s mailed offer to build the Dalton system at its Moultrie, Georgia office. Propеr application of lex loci contractus would therefore require the court to look to Georgia law in interpreting the validity of the indemnity provision.
No Georgia court appears to have addressed the question of whether a contrаctual indemnity provision may be enforced by a third party tortfeasor against an employer who has paid worker’s compensation benefits to an injured employee. To resolve the issue and to insure stare decisis effect for our opinion, we certify this case to the Georgia Supreme Court for a resolution of this and other state law questions. O.C. G.A. § 15-2-9 (1982).
In reviewing this case, the Georgia Supreme Court is requested to consider a more basic question regarding Georgia conflicts rules which has arisen in the wаke of the Georgia Court of Appeals decision in
Allen v. Smith & Medford, Inc.,
The general Pex loci] rule with regard to сontracts has been repealed. Our courts may still apply the essence of that rule in other situations. See Goodman v. Nadler,113 Ga.App. 493 , 495,148 S.E.2d 480 . But there is no law holding that such rule or rules is now applicable to our Georgia Securities Act.
Id.
at 544,
Although the Allen case left open the question of which сonflicts rule might govern actions not involving Georgia se *1121 curities laws, the strong implication in that case is that the Georgia courts will now generally adhere to the ‘grouping of contracts [sic]’ theories expressed in the Restatement (Second) of Conflicts § 188 (1971).
Id.
at 538 (citation omitted).
2
Some later federal district court opinions have concluded that Georgia has unequivocally adopted the center of gravity approach.
E.g., Hayes v. Irwin,
By directive from the Clerk, we now ask counsel to assist us in drafting thе question or questions to be certified. We do not intend the statement of the issues to inhibit the Georgia Supreme Court in framing its answer and we solicit answers to all questions considered significant.
On receipt of counsels’ proposed statement of the facts аnd issues to be certified, we will issue the formal certification transmitting the entire record in this case, the Court’s opinion, and all the papers and briefs to the Georgia Supreme Court.
CERTIFIED.
Notes
. Article XI provided:
The Contractor [Trimm] agrees to assume liability under the terms of the Workman’s Comрensation Laws, as amended, of all states in which he performs work under this contract; and further, the Contractor assumes all liability for injury to persons or damage to property of (a) the Contractor, his agents or employees; (b) the Company [GTE], its agents оr employees, and (c) any other person or firm arising in any way, directly or indirectly out of the performance of this agreement, whether or not such injury or damage is due to the negligence of the Contractor, his agents, or employees, excepting only injury or damages arising solely from the negligence of the Company, its agents, or employees. This shall include, without limiting the generality of the foregoing, injuries or damage arising out of the operation of motor vehicles.
Article XII provided:
The Contractor agrees to indemnify and save harmless the Company of and from all liability, loss expense, or damage on account of injuries or damage for which the Contractor assumes liability in Article XI, above, including attorney’s fees.
. Under the grouping of contacts theory, also refеrred to as the center of gravity approach, the court would examine five factors in determining which state’s law to apply. These factors include the place of contracting, the place of the negotiation of the contraсt, the place of performance, the location of the subject matter of the contract, and the domicile, residence, nationality, place of incorporation, and place of business of the parties. Restatement (Seсond) of Conflicts § 188 (1971).
. “In Georgia, there are two alternative rules which may be applied in this case: lex loci contractus or center of gravity.” Id (footnote omitted). The court also noted that Georgia courts have not explicitly addressed the question whether the grouping of contacts approach applies to Georgia conflicts cases construing contracts. Id. at 68 n. 2.