In Allstate Insurance Company v. ADT, LLC, No. 1:15-cv-517-WSD, 2016 U.S. Dist. LEXIS 120880 (N.D. Ga.), the United States District Court for the Northern District of Georgia addressed the question of whether a contract’s insurance and waiver of subrogation clause was an exculpatory clause that was unenforceable because it did not pass Georgia’s Prominence Test. The court held that a waiver of subrogation clause is not an exculpatory clause and, thus, its enforceability does not depend on the clause being prominently displayed.
Effective April 26, 2016, Georgia amended its anti-indemnification statute, Ga. Code § 13-8-2, to cover not only construction contracts, but also contracts for engineering, architectural or land surveying services. The amended statute, however, does not apply equally to construction and professional services contracts.
Georgia’s apportionment statute, OCGA § 51-12-33, requires a jury, in some cases, to apportion responsibility for an injury among all those who contributed to it – whether a party to the lawsuit or not – based on each person’s respective share of combined fault. After the apportionment, each defendant’s liability is limited to his or her apportioned percentage. In Zaldivar v. Prickett, — S.E.2d –, 2015 WL 4067788 (Ga. July 6, 2015), the plaintiff, Daniel Prickett (Prickett), sued Imelda Zaldivar (Zaldivar) to recover for injuries that Pricket allegedly sustained in a motor vehicle accident. Zaldivar sought to apportion fault to a non-party, Overhead Door Company, Prickett’s employer, arguing that Overhead Door Company negligently entrusted its vehicle to Prickett. In addition to overruling prior case law precluding, as a matter of law, first-party claims based on negligent entrustment, the court considered whether “fault” can be apportioned to a tortfeasor whose negligence was a proximate cause of the plaintiff’s injury but who is otherwise immune from liability.
In Atlanta Flooring Design Centers, Inc. v. R.G. Williams Construction, Inc., — S.E.2d –, 2015 WL 4311070 (Ga. App. July 16, 2015), the Georgia Court of Appeals addressed the validity of a contract clause in a construction contract. In the contract, R.G. Williams Construction, Inc. (“Williams”), the general contractor, and Atlanta Flooring Design Centers, Inc. (“AFDC”) agreed to arbitrate any disputes related to the contract. In addition, Williams and AFDC expressly agreed “not to challenge the validity of the arbitration or the award.” The court, relying in part on analogous federal arbitration law, held that the clause – precluding judicial review of an arbitration award – altered Georgia’s statutory arbitration scheme, frustrated Georgia’s public policy and was void and unenforceable.