Several months after a jury cleared textile giant Milliken & Co. of liability in the death of one of five people killed when a corporate jet hit a power pole at its Thomson, Georgia, plant, its lawyers were at the state Supreme Court debating whether Georgia Power Co. can be forced to bear liability for damages in other cases stemming to the crash.

A Fulton County judge and the Court of Appeals ruled that Georgia Power could not be held liable for damages even though it erected and maintained the power pole, despite a 1989 “hold harmless” agreement it signed with Milliken to assume responsibility for any damages related to the erection of the pole and power lines.

The lower courts held that Georgia Power could not be held liable under the state's anti-indemnity statute, which prohibits indemnity agreements where all of the negligence at issue was caused by the party claiming to be indemnified. The statute also bars indemnity agreements “relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances.”

The Court of Appeals held that allowing Georgia Power to be held liable for damages would be a violation of public policy, ruling that Milliken—which was originally granted a 1973 easement to the nearby airport—was solely liable for any potential damages.

Stevan Miller

Milliken's attorney, Drew Eckl & Farnham partner Stevan Miller, argued that the appellate court had applied “flawed reasoning” in ruling the company sought to be shielded from liability for its own negligence.

The hold harmless agreement “cannot and does not protect Milliken from damages solely by Milliken,” said Miller, arguing that the company had conceded from the outset that it was not entitled to indemnity unless there was a finding of combined negligence by both Milliken and Georgia Power.

“We've made it clear that we're seeking indemnification when there is concurrent negligence,” said Miller, who represents Milliken with firm colleague Lisa Richardson and Laurie Webb Daniel and Philip George of Holland & Knight.

Benjamin Brewton

Georgia Power lawyer Benjamin Brewton argued it was Milliken's decision to have the utility install lines to serve a new building on its property that allegedly exceeded the height restrictions contained in the airport easement.

Brewton, of Augusta's Tucker Long, faced seemingly skeptical questioning be several justices, including David Nahmias, Nels Peterson and the court's newest member, Sarah Warren.

The justices questioned how Milliken could be solely responsible for an accident blamed on a power pole sited, erected and maintained by the utility.

“The duty you allege in your complaint is that [Milliken] violated the airport easement,” said Nahmias.

But, he asked, if Georgia Power had not placed the pole in the airplane's glide path, “how could there have been any damages or injuries if nothing bad happened … I don't understand that,” Nahmias said.

“But for Georgia Power's negligent conduct there would be no damages,” he said.

Milliken was “trying to have it both ways” by arguing that it was not solely liable for negligence but that Georgia Power should shoulder the responsibility for all the damages, said Brewton, who represents the utility with Hugh McNatt, Anne Kaufold-Wiggins and Brooke Gram of Balch & Bingham and David Dial, Thomas Streuber and Carol Michel of Weinberg, Wheeler, Hudgins, Gunn & Dial.

That issue, said Nahmias, would seem proper one for a jury to sort out.

The case involves the February 2013 crash of a small jet as it took off from Thomson-McDuffie Airport and struck a power pole and lines just beyond the end of the runway.

The pole was erected in 1989 as part of an expansion at the Milliken plant, which required additional power lines, poles and a substation. A right-of-way easement promised that Georgia Power would hold Milliken “harmless from any damages to property or persons (including death), or both, which result from [Georgia Power's] construction, operation or maintenance of its facilities on said easement.”

Several lawsuits were filed against Milliken, Georgia Power and other defendants in Fulton County State Court subsequent to the accident. Milliken filed cross-claims against Georgia Power in all of them, arguing the utility was liable for any damages under the terms of the agreement. Milliken did not seek to reimbursement for attorney fees or legal expenses.

Georgia Power filed for summary judgment, arguing the agreement did not indemnify Milliken for any third-party damages Milliken might suffer, and that construing it otherwise would be against public policy and the anti-indemnification statute.

Judge Jay Roth agreed and ruled that Georgia Power was not liable for Milliken's potential damages, as did the Court of Appeals.

Exactly what damages might be available to Milliken if the justices overrule the lower courts have yet to be determined.

In August, following a two-week trial in which Milliken was the sole defendant, a jury cleared the company of liability, along with several non-party defendants, including Georgia Power.

In another case, Georgia Power and Milliken recently settled with two plaintiffs, but a third's action remains pending.

Milliken also settled another case earlier this year, and its remaining claims against Georgia Power have been transferred to McDuffie County.

Three cases remain pending before Roth.

Editor's note: This article has been updated to clarify that Milliken argued that it is seeking indemnity from Georgia Power only if both are found to have been negligent.