Six years after a corporate jet hit a power pole while taking off from an airport in Thomson, killing five passengers, the Georgia Supreme Court ruled that an agreement between the company hosting the pole and Georgia Power Co. does not absolve the utility from liability for any damage claims.

The ruling overturns the Georgia Court of Appeals and a trial judge, who had said a “hold harmless” agreement between Georgia Power and textile giant Milliken & Co. shielded the utility from liability for any accident related to the pole and power lines, which were erected to service a Milliken plant.

The 2013 accident spurred at least seven lawsuits, the first of which went to trial last year and ended with a defense verdict for Milliken, which was sued by the family of one of the deceased. 

The remaining cases are in varying stages of litigation. Milliken settled one, and two more remain pending before Fulton County State Court Judge Jay Roth.

The case centered on a power pole and transmission lines Georgia Power erected shortly beyond the runway at Thomson-McDuffie County Airport in an easement belonging to Milliken as part of a 1989 expansion at the plant west of Augusta.

The agreement said 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.”

After the litigation was filed, Milliken filed cross-claims against Georgia Power, arguing the utility was liable for any damages it might incur under the terms of the agreement. Milliken did not seek to be reimbursed for attorney fees or legal expenses.

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

That statute bars indemnity agreements where all of the claimed negligence was caused by the party claiming to be indemnified, as well as agreements “relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances.”

Roth granted Georgia Power's motion but ruled the provision constituted an agreement not to sue because it did not contain the word “indemnity” and was “not so comprehensive regarding protection from liability.”

Milliken appealed, and the Court of Appeals upheld Roth's ruling but not for his stated reasons, instead declaring the agreement “void as against public policy.”

By the Court of Appeals' reading, the agreement made Georgia Power “contractually liable to indemnify Milliken for any damages that the plaintiffs recover against Milliken caused solely by Milliken's negligence,” and was thus unenforceable.

Stevan Miller of Drew Eckl (Courtesy photo)

In arguing Miliken's appeal to the Supreme Court in December, Drew Eckl & Farnham partner Stevan Miller said the Court of Appeals had applied “flawed reasoning,” because Milliken never sought to be shielded from liability for its own negligence.  

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

Georgia Power attorney Benjamin Brewton told the justices that Milliken's decision to have the new pole and lines installed on its property were the cause of any alleged negligence and that the utility should not be forced to shoulder all the liability.  

Brewton, of Augusta's Tucker Long, represents the utility along 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.

The unanimous decision released Monday and authored by Justice Sarah Warren said the Court of Appeals had erroneously interpreted and applied the anti-indemnification statute.

The law prohibits any sort of covenant or agreement purporting to hold harmless anyone for “liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee,” wrote Warren, citing the statute.

“[A]s a matter of contractual interpretation and as a matter of common sense, Milliken's 'sole negligence' would not fall within the indemnity provision's language, because that language limits the indemnity to damages caused, at least in part, by Georgia Power,” the ruling said.

“Indeed, if Milliken's negligence contributed to damages also caused by Georgia Power's negligence, then it would not be “sole negligence”; it would be combined or joint negligence, and thus would not implicate [the statute],” the ruling said.

“Contrary to Georgia Power's contention, the indemnity provision here does not purport to require Georgia Power to hold Milliken harmless for 'any damages' without limitation,” the opinion said.

In a statement, Georgia Power spokesman John Kraft said the Supreme Court order “did not express an opinion on the grounds upon which the Fulton County State Court originally dismissed Milliken's indemnification claim against Georgia Power.

“Georgia Power maintains it is not at fault for the underlying plane crash nor are we responsible for providing indemnification to Milliken,” Kraft said.

There was no reply to a request for comment from Milliken's lawyers.