Appellee-third-party plaintiff Atlantic Realty Company (Atlantic) hired Beers Construction Company (Beers) as the general contractor for the renovation of a building that it owned. The general contract between Atlantic and Beers provided that the latter would indemnify and hold the former harmless as to all claims arising out of or in connection with the performance of the contract. The general contract also specified that, from each subcontractor, Beers would procure, as additional protection for Atlantic, an independent indemnification and hold harmless agreement, whereby the subcontractor would agree to indemnify Atlantic. In addition to this provision requiring Beers to secure an independent indemnity agreement from each subcontractor, the general contract also provided that “ [a]ll work performed for [Beers] by a Subcontractor shall be pursuant to an appropriate written agreement between [Beers] and the Subcontractor which contains provisions . . . indemnifying [Atlantic] in accordance with [the indemnity provisions] hereof.”
Beers subcontracted with appellant-third-party defendant Walls, Inc. (Walls) for the installation of drywall in the renovated building. Allen Jones, an employee of Walls, was killed in a fall during the renovation of the building. Jones’ widow brought suit against Atlantic and another defendant, alleging that their negligence was the proximate cause of her husband’s death. Atlantic then filed this third-party action against Walls. The third-party complaint alleged that *390 Walls had agreed to indemnify and to hold Atlantic harmless as to claims arising out of Walls’ performance of the drywall work in the renovated building. Walls answered the third-party complaint, denying the existence of any agreement on its part to indemnify Atlantic. Cross-motions for summary judgment were filed. The trial court denied Walls’ motion, but granted summary judgment in favor of Atlantic. Walls appeals from the trial court’s order granting summary judgment in favor of Atlantic and denying its motion for summary judgment.
1. The facts are undisputed and the only issue involved is one of contractual interpretation. Beers never procured an agreement from Walls, independent of the subcontract, whereby Walls made an express and direct promise as to the indemnification of Atlantic. The only express promise as to the direct indemnification of Atlantic is that which was made by Beers in the general contract. Accordingly, with regard to the procurement from Walls of an indemnification agreement independent of the subcontract, Beers may have breached a contractual obligation owed to Atlantic. However, the subcontract that was entered into between Beers and Walls does contain Walls’ express agreement to “perform all work” in the restoration of the building “in accordance with” the general contract between Beers and Atlantic, which general contract “hereby become [s] a part” of Walls’ subcontract with Beers. Atlantic urged and the trial court found that this provision of the subcontract was sufficient to incorporate all of the provisions of the general contract into the subcontract and that the legal effect of this incorporation by reference was to obligate Walls to indemnify Atlantic directly, just as Beers had agreed to do in its general contract with Atlantic.
“As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where . . . the provision to which reference is made has a reasonably clear and ascertainable meaning. [Cits.]”
Binswanger Glass Co. v. Beers Constr. Co.,
However, incorporation by reference would show only that the subcontract
contained
such an indemnity provision. It would not necessarily show the legal entitlement of Atlantic, who was not an immediate party to the subcontract, to secure the
enforcement
of that provision. “In the present case, the owner was not a named party to the contract between the subcontractor and general contractor, did not sign the contract, nor become obligated in any way thereunder.”
Robertson v. Laughlin Insulation Co.,
“In order for a third party to have standing to enforce a contract under [OCGA § 9-2-20 (b)] it must clearly appear from the contract that it was
intended
for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. [Cits.]” (Emphasis supplied.)
Backus v. Chilivis,
This subcontract, when construed in its entirety, clearly indicates that neither party thereto intended that Atlantic be the third-party beneficiary of any promise made therein by Walls to Beers, either as to the indemnification of Atlantic or as to any other promise contained therein. Paragraph 30 of the subcontract specifically provides that Beers and Walls “agree . . . [t]his subcontract is solely for the benefit of the signatories hereto.” (Emphasis supplied.) Atlantic was not a signatory to the subcontract. Only Beers and Atlantic were. It follows that, under the express terms of the subcontract, Atlantic cannot be considered a third-party beneficiary of any indemnity provision therein, even though such an indemnification provision exists and regardless of the terms thereof. The intent of the parties to this particular subcontract was to the effect that no others benefit from it and this intent could scarcely have been more clearly expressed. “It must appear that both parties to the contract intended that the third person should be the beneficiary. [Cits.] There is nothing in the contract between [Walls] and [Beers] to indicate that it was intended for [Atlantic’s] benefit as a third party beneficiary. Thus, [Atlantic] had no standing to bring a direct action on the contract as a third party beneficiary.” Donalson v. Coca-Cola Co., supra at 713-714 (2). It follows that the trial court erred in granting summary judgment in favor of Atlantic and in denying Walls’ motion.
2. Remaining enumerations of error are moot by virtue of our holding in Division 1 of this opinion.
Judgments reversed.