*1 Judgmеnt Birdsong, Beasley, J., J., P. concurs. con- affirmed. specially. curs Judge, concurring specially.
Beasley, i.e., 1, The issue discussed and decided in Division the search of jacket pocket marijuana it, the by and seizure of the from is not raised
appellant abyss ator most falls into the same of abandonment as disposed inof 3. those Division liberally errors, read,
The enumeration of contends that the reasons, search warrant curred before its issuance of defective for seven that its oc- execution beyond scope, its and that items three physical evidence have should been excluded because left in the jury overnight during trial, room deliberations the first which was mistried.
Appellant’s argument validity addresses the of the warrant and its does It issuance. does not address the execution of the warrant. Nor pat-down jacket address the and seizure of items from the pocket diazepam (bottle (marijuana) appellant’s pants pockets two plastic bag methamphetamine, bullets, one .22 other). containing $1,012
wallet in the It does not show how war- invalidly authority subject rant, issued, if him, еliminates the to a vis- during pat-down weapons. execution, itor the warrant’s to a search for attacking argu- to contention, As ment the final evidence, chain merely restates it. Based on the 2, authorities cited at the end of Division I concur respect appellant’s challenge validity and issuance of premises. the search warrant for I co-defendant’s concur Division 3 I and do not reach the issue decided Division 1. July Decided July 1992.
Reconsideration denied appellant. Hester, Hester Hester, & Frank B. for Attorney, Fuller, C. Andrew District Wilbanks, Jr., John G. As- Attorney, appellee. sistant District for A92A0261. et al. MYERS v. TEXACO REFINING &
MARKETING, INC. Presiding Judge. Birdsong, Buffington personal injuries slipped Vivian sustained when she fell as a customer at a Texaco service station and food mart. She Refining premises, & Mar- of the the owner filed suit individually facility, Myers, (Texaco), operator keting, Inc. (Myers), Jiffy Texaco cross-claimed and others. Mart and d/b/a operation pursuant Myers, claiming to their contract fully Myers agreed and in- defend business, and covenanted of the demnify alleged cross-claim also claims. Texaco’s Texaco for such liability *2 provide Myers’ insurance for failure to breach of contract coverage for Texaco. Myers against were severed from the trial
Texaco’s cross-claims personal injury jury Buffington’s returned a verdict for claims. The plus apportioned against Myers Buffington, $43,650 interest et al. for plus against costs, $162,475 interest and costs. Texaco for Myers against and breach for indemnification Texaco’s cross-claims the liability provision provisions were then heard. The insurance Paragraphs issue are 9 and 10 of the contract. pertinent part:
Paragraph in “INDEMNITY— Con- [Myers] fully protect, agrees defend, indem- tractor nify covenants and every claim, . each and and hold harmless Texaco . . de- any liability, expense (including cost, mand or cause of action and attorney expenses), damage . . . in reasonable fees and or loss con- may any therewith, which be made asserted . . . third nection or parties age personal injury property ... on account of or death or dam- by, arising way of, to, in
caused incidental or con- except performance hereunder, nection with the as of the services negli- ... to have determined resulted Texaco’s sole gence..” (Emphasis supplied.)
Paragraph pertinent part provides: in “INSURANCE—The [Myers] maintain, . . Contractor coverage shall at his sole cost . the insurance evidencing required set ... A forth below. certificate specifically quoting insurance and the indemnification set Agreement Compre- forth . shall be delivered to Texaco. . . C. Liability [in amounts]. hensive General policy Insurance ... stated This among liability cover, risks, shall other the contractual as- Agree- sumed under the indemnification set forth Liability liability . . ment. . E. Excess Insurance—Excess insurance comprehensive general liability coverage over . . . with minimum lim- policies $1,000,000.00. its of All such insurance shall be endorsed to show Texaco as an additional insured.” summary judgment.
Both Texaco and filed motions for summary granted judgment The trial court Texaco’s motion for regard summary Myers’ judg- and denied motion for deliberately ment. on Texaco’s The trial court refrained from provi- Myers’ liability procurement claim for breach of the sion. pursuant contract, Texas
The trial court determined that to the construing indemnity agreements governs; Texas law adopted has “express negligence according doctrine” to which the in- tent to tract; must be stated within the four corners of the con- indemnity language Paragraph standing alone, “express negligence doctrine”; failed to but that the indemnity provisions quirements Paragraph together with the insurance re- Myers’ 10 satisfied the doctrine inasmuch as against personal injury intent to Texaco losses and attor- ney expenses expressed fees and within the four corners of the compliance contract and in with Texas law. pay $162,475
The trial court ordered Texaco for the personal injury judgment against attorney Texaco, $32,900.50in fees plus $5,325.53 costs, interest. contends that under the doctrine” the indemnity provision is unenforceable because it does not provide indemnifies Texaco claims out of negligence; Texaco’s own insurance Myers; Myers against and that the and the together impose duty construed do not such a so, contends he is not liable to joint negligencе. this claim and Texaco’s Held: *3 complicated
1. Rather than rule on the indemnification issue under Texas law and undetermined, leave the breach of contract issue the trial court should have ruled on the issue of breach of contract for Myers’ provide liability failure to insurance with Texaco as named Myers required insured. The that was to defend and Myers separate Texaco tract this claim does not relieve of the con- obligation provide liability particularly insurance, to insofar as peculiar damages may Although arise from this breaсh of contract. cross-appeal give Texaco pression issue, did not on this we decline to im- might give dead, that the issue is since that room for more litigation. (d). § See OCGA 5-6-34 provides Myers maintain, that “shall at his sole comprehensive general liability cost. . . [and] insurance excess liabil- ity specified paragraph provides: [in amounts].” insurance The then policies “All such insurance shall be endorsed to show Texaco as an (Emphasis supplied.) undisputed My- additional insured.’’'’ It is procure Myers ers did Rather, such insurance. asserts that Texaco by compliance provision. its conduct waived with this A conclusion is regardless Myers required demanded that whether was to required procure liability Texaco, to insurance for Texaco. If the reason, were unenforceable for the re- quirement Myers procure liability insurance for Texaco becomes everything. required Texaco is not to have raised the breach of con- appeal pending tract it, issue on or else lose because it is still below. (b). summary judgment grant to Texaco § OCGA 9-11-54 See indemnity to not relieve оf the issue does on the Myers’ liability provide de- insurance. As to its failure to answer for waiver, favored and must be law a waiver is not fense of unequivocal. voluntary, knowing, & Aban- See EGL 28A Waiver and (1985 ed.). evidentiary hearing seq. donment, quired An be re- § et3 (under being given special damages, with consideration as to provide liability Myers’ appropriate pleadings) to failure to indemnity provision unenforceable, light of its assertion that the contrary protection altogether to with no at all leaves Texaco which the to this gave plain indisputable contract, rise and which terms of litigation. correctly summary judgment granted to Texaco
2. The trial court
though
issue,
stated. The indem-
not for the reasons
nity provision
within its own terms the intent for
contains
and Texaco’s
Texaco for this claim
necessary
to construe this
is not
procurement provision in order to find such intent.
with the insurance
parties’ express
“Agreement
intent that the
shall be con-
strued in accordance with the Laws of the State of Texas” will be
Georgia public
application
honored unless
of Texas law contravеnes
policy
prejudicial Georgia’s
Nasco, Inc. v. Gim-
interests. See
or is
(2) (238
England Mtg.
bert,
New
McLaughlin,
Security Co. v.
Myers
Georgia law and
are con
contends the
adopted by
doctrine”
with the
sistent
provision in
courts,
this case unenforce
authorize us to find the
Myers
indemnify
state that
will
because it does
able
Myers
negligence.
arising out of Texaco’s own
a claim
Texaco
virtually
indemnity provision in this case is
identical
asserts that the
Singleton
wanting by
v.
Court
to the one found
Corp.,
which the
Crown Central Petroleum
729 SW2d
as to
Appeals
Davis,
Ford,
Texas,
Oil v.
Bacon &
Court of
Texas
782 SW2d
meet the
guage stating
nify
Gulf
(1)
Singleton
“The
failed to
stated:
express negligence test, because it contained no direct lan
parties
that
contractor would indem
intended
negligence.
the owner’s
owner for the
own
only
Rather,
could,
best,
be inferred that such was the
language
stated that the
accidents for which
intent because
indemnity
apply
arising
neg
will not
are those
out of the owner’s sole
ligence.”
support
Myers
contentions,
In
of its
relies on Linden-
Masonry
Alimak,
McDonald,
82;
Inc. v.
Coast
SW2d
Gulf
compаre Boyd
Owens-Illinois,
Co.,
239;
v. Amoco
739 SW2d
Production
Drilling,
528;
Adams Resources &c.
v. Resource
We that Texas construed require law, does not us to find that this is unenforceable as regards grounds Texaco’s that it does not contain necessary express Regardless governs the tract, intent. whose law a con- requires give meaning every law us to term rather meaningless, than construe term as and to construe a contract so uphold every part; if as to the contract whole and construc- goes strongly against party doubtful, tion is “that which . most . . undertaking generally preferred.” § to be OCGA 13- (4) statutory sup- 2-2 This mandate is of more than force posed presumption, arising Georgia law, whether out of Texas or parties the Texaco’s never intended that Texas for
joint negligence. agrees every personal from and injury “each and claim ... on account of arising performance . . . hereunder, out of . . . of the services except negligence.” (Empha- . . . resulted from sole Texaco’s supplied.) language personal injury sis sulted from indemnification. But every” This clear. If this had re- negligence, Myers sole
Texaco’s would not be liable for is liable to for “each and necessarily claim; other kind of includes a claim joint out of indemnify If the had intended would not any negligence
Texaco from a claim Tex- they aco, event, would have said so. In that would not
297 negligence. arising excepted only “sole” out of Texaco’s claims have In being having any or reason for construe -this order to indemnify meaning all, Texaco as to claims at an directly arising joint negligence deduced. must be out of ignore plain language Georgia permit us to law does not Since meaningless, if Texas law dictates a to construe it as a contract or conclusion that this of is unenforceable as a statement pub- against joint negligence, such law would be demnification for policy interpret in their reasonable mean- this state to contracts lic of parties. ing according Lewis, Hull v. See to the intent of the undertaking by joint a SE This whole contract is Ga. joint undertaking Texaco; include that this would joint negligence is not unreasonable. indemnification for Texaco’s except indemnify from all clаims those That would arising negligence In “sole” is likewise reasonable. or- from Texaco’s indemnify der to conclude aco’s did not mean to Texaco for Tex- that effect be would required, “excepting” language which claims case in. negligence be We cannot construe Texaco’s “sole” this contract toward such a result. would nonsense. City supra, prove Atlanta, Allstate Ins. Co. v. cited to
Georgia policy express negli law and are consistent authority (Georgia gence doctrine, Scarboro, State Tel. Co. v. and its (2) (251 309)) App. 390, both involved contracts expressed indemnify which no intent was the indemnitee for claims solely. negligence,jointly Thus, out of the indemnitee’s own “ ‘ “[t]he the statement that will words of the contract be scrutinized closely against party [to to discover whether such an intent a negligence] actually every his own is revealed them and ’ ” (Allstate presumption supra intention,” Co., is Ins. attempts party’s refers to to create indemnification for a own negligence reasonably where no such intent be inferred. Cer tainly where there is no hint that an indemnitor means to negligence, presumption another from his own creating such an thin air. Such was the case both Georgia Allstate Ins. Co. and State Tel. and that is the context presumption-against-indemnification in which their reference to a very must be understood. Those contracts were different from the one plainly expresses case, in this which the intent for to indem nify degree negligence, Texaco for some of Texaco’s own for it re quires arising every except indemnification each and of Texaco for claim one pub Furthermore, sole
out of its the statement policy Georgia upon lic Allstate Ins. Co. State Tel. Co. rests the idea that we are reluctant to cast the burden of actions “upon actually those who are not at fault.” Allstate Ins. Co. at 693. negli necessarily policy where the weakened a of such
The basis gence indemnitee, joint and the the indemnitor is at fault. indemnitor in such case the (Allstate State Co. and Ins. cases same These “ ‘ closely Co.) require “to discover the contract us to scrutinize Tel. negli- against his own indemnitee [an intent to whether gence] ’ ” supra Allstate, This at 693. in disapproval revealed them.” the idea its face is statement on *6 plain language reasonably may such as inferred from intent exists not be indemnify its own The intent to in this case. plainly expressed. merely “implied” joint negligence Con- but is is policy, patent statutory public inference law and sistent with our may interpretation plain language an obvious drawn from be public pol- doing prevents required; this, our if law us from Texas icy requires supra Nasco, Inc., See law not be followed. that the Texas (2). presumptiоn against indemni- there is a at To conclude (though merely joint negligence it because the contract fication for else) say “Myers nothing indemnifies did not could mean (4): joint negligence,” § “The 13-2-2 construc- will violate OCGA for tion preferred, every part uphold in in is to be whole and which will a contract arriving into the whole contract should be looked and any part.” construction Accordingly, is enforceable this indemnification joint negligence. The trial court claim for Texaco’s as to this summary judgment granting this issue. in to Texaco on did not err cоntrary Myers’ assertions, Moreover, this contract is not to 3. Supreme virtually inadequate to the one held identical Corp., supra Singleton Petroleum at 729 v. Crown Central Court Singleton agreement provided that the claims for SW2d 690. The arising of “the activ- were those which the owner was indemnified per- [cjontractor with the work to be ities ... or connection only arising excepting contract, claims out of . . . this formed under Singleton resulting [o]wner.” v. accidents from the sole provi- Corp., That Crown Central Petroleum 117-118. only arising out of indemnifies the owner as to сlaims sion on its face arising apply contractor”; does not to a claim “the activities of the it with the of the owner unless it arises connection out of conduct performed contract, and even then the owner work to be not indemnified Texas not under the negligence. arising
for claims
out of his sole
say why
that contract “does
Court did not
found
(Singleton,
‘express negligence’ rule,”
Johnson, JJ., J., concur. dissents. Judge, dissenting.
Beasley, The issue is the effect of an indemnification in a con- operation tract for services for the of a retail service station and food placed procedurally mart. It is before us as follows. hearing summary judgment
After a on the cross-motions for granted evidence, consideration of the the court Texaco’s motion for summary judgment regard with to its crossclaim for contractual demnity against Myers Myers’ summary and denied cross-motion for judgment. rendering The order stated that inasmuch as the court was indemnity, its decision on Texaco’s crossclaim for contractual ruling portion summary court was not on that of Texaco’s motion for judgment regard upon to its breach of contract crossclaim nor procurement provision. defense of waiver of the insurance challenge: pro- Myers’ appeal The indemnification is a threefold by Paragraph 9, vision, unenforceable virtue of its failure to itself is satisfy provision “express negligence The the Texas doctrine.” indemnification provision, together Paragraphs
construed with the insurance together, 9 and 10 does not doc- negligence trine” and indemnification for The is therefore unenforceable. indemnity provision is likewise unavailable to Texaco to recover attorney its fees and costs. regard appeal” to the court’s
No issue “is raised on portion on the of contract of the crossclaim and so none breach (d); § 5-6-34 Westwind v. Wash- should be addressed. OCGA ington (393 (1) Savings App. Assn., &c. Fed. 195 Ga. SE2d expressly provides parties agree 1. The contract and the indemnity. applied assessing Texas law should be contractual following Texas, in Court of its trend toward a adopted contracts, more strict construction of press has an “ex- negligence doctrine,” that when which to a con- tract seek indemnification of the indemnitee from the negligence “specifically of its such an intention must be stated within the four corners of the contract.” 725 SW2d Georgia public policy [2] (Tex. 1987). Ethyl Corp. Such a view is consistent with Daniel Constr. negli- which “is reluctant to cast the burden of ‘(i)t gent upon actually actions those who are not at fault. Thus well established in tend to losses caused that contractual indemnities do not ex- negligence an indemnitee’s own unless the contract ered. closely states that of the indemnitee is cov- ‘ (Cits.)’ [Cits.] “The words of the contract will be scrutinized to discover whether such an intent revealed them every presumption and explicit language In the intention. absence of contrary, [Georgia] interpret
to the
cоurts will not
indemnity agreement
promise by
an
as a
the indemnitor to save the
negligence.”
indemnitee harmless on account of the latter’s own
(Cits.)’
‘Georgia
imply
[Cits.] . . .
courts never
to indem-
nify
another
for one’s own
the absence of
lan-
”
(Cits.)’
guage.
City
App.
Atlanta,
Allstate Ins. Co. v.
308) (1992).
similarly
in Allstate claims”)
sweeping (“any
ity
impose
and all
and was insufficient liabil-
*8
indemnity
specific, express,
explicit.
for
because it was not
impediment
applying
There is thus no
law.
Texas
indemnity provision
Paragraph 9,
own,
2. The
of
on its
does not
satisfy
express negligence
language
tеst. The relevant
is vir-
tually
Singleton
agreement
identical to an
v.
examined in
Crown Cen-
(Tex. 1987).
Corp.,
unfavorably
tral Petroleum
301
Davis,
Texas,
782 SW2d
30
[1]
(Tex.
App.
—
Beaumont
1989),
Appeals
agreement in
“The
the
Singleton
Court of
Beaumont stated:
Texas
express
negligence test,
it con-
con-
failed to meet the
because
language stating
intended
tained no direct
the
that the
for the
of the owner’s
tractor
owner
only
negligence. Rather,
could,
best,
be inferred
own
it
language
only
the
acci-
was the
intent becаuse
stated
indemnity
apply
which
will not
those
of the
provi-
dents for
owner’s
sion
are
negligence.”
infirmity
indemnity
sole
is the
of the
Such
Linden-Alimak,
McDonald,
case
Inc. v.
the
at bar. See also
—
(Tex.
1988);
Masonry
App.
Coast
v.
745 SW2d
Fort Worth
Gulf
(Tex. 1987). Compare Boyd
Owens-Illinois,
3. 9 combined with the procurement provision Paragraph insurance 10 still does not express negligence requirement. Appeals rejected The Texas Court Dallas considered and analogous Spring Valley Co., situation in Adams v. Constr. — (Tex. App. Compare Klepac Champlin Dallas Petro- (5th 1988), leum 842 F2d 746 Cir. in which the issue of whether indemnity language express negligence or doctrine not satisfied the Texas squarely Adams, was In addressed. the court was asked indemnity language conjunction to construe in a subcontract with language procured conjunction from a certificate of insurance express the subcontract to find an intent was subcontractor against liability to negligence. Although the contractor due to the contractor’s physically sep- the certificate of arguendo subcontract, arate document from the the court assumed that the certificate was a condition of the subcontract and within its considering language, four corners. Even inad- combined was an equate statement of assumed for the indemni- tee. language The combined at issue the from the here fails because at most
sought indemnity
joint negligence
can
inferred
language
procurement provision. Implica-
additional
of the insurance
tion and inference cannot transform omission into an
or ex-
plicit
says,
language,”
intent,
statement of
or as
Oil
“direct
Gulf
the indemnitee
its own
concurrent
*9
provisions
were sufficient.
contract
in
court erred
trial
summary
question
judgment
on
Texaco entitled to
4. Nor was
attorney fees and costs.
for
of its indemnification
(Tex.
Ind.,
v. Dresser
The unelaborated indemnification of defense costs mention of reasonably sep- the short at bar cannot be found any attempt negligence, at indemnification for arate and distinct from under the Dresser rationale. judgment for Texaco should be reversed. July
Decided July denied
Reconsideration Taylor, Lane, O’Brien, Ormand, L. Russell T. Caswell & Richard Bryant, appellants. for ap- White, Rust, Moffett, Matthew G.
Fortson & Michael J. pellee.