U. S. Lawns, Inc. commenced this action seeking common law and contractual indemnification from Cutting Edge Landscaping, LLC. The trial court denied summary judgment to U. S. Lawns but granted it to Cutting Edge on the indemnification claims. The question on appeal is whether the trial court erred in holding that Cutting Edge was not required to indemnify U. S. Lawns for a settlement that U. S. Lawns voluntarily paid to a tort victim in a prior lawsuit, given that U. S. Lawns entered into the settlement only after it failed to answer the tort victim’s complaint and had gone into default. For the reasons discussed below, we conclude that the trial court committed no error. When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Footnotes omitted. Smith v. Gordon , 266 Ga. App. 814 1 598 SE2d 92 2004. See OCGA § 9-11-56 c. So viewed, the evidence showed that U. S. Lawns contracted to provide landscaping services to Bank of America in Macon, Georgia. U. S. Lawns then subcontracted its landscaping duties to Cutting Edge. The subcontract contained an indemnification provision stating in relevant part: Subcontractor Cutting Edge indemnifies and holds Contractor U. S. Lawns harmless from and against any and all claims, demands, or actions made by any person or entity whether valid or not, arising in whole or in part, out of the performance by Subcontractor, including, without limitation, its employees, agents, and fees, sic incurred by Contractor in defending against . . . or dealing with any such claims, demands, or actions. Subcontractor specifically obligates itself to Contractor in the following respects and this Subcontract is made upon such express condition to wit: . . . Subcontractor shall protect, hold free and harmless, defend and indemnify Contractor and Owner Bank of America including their officers, agents and employees from all liability, penalties, costs, losses, damages, expenses, causes of action, judgments or other claims resulting from injury to or death sustained by any person including Subcontractor’s employees or damage to property of any kind, which injury, death or damage arises out of or is in any way connected with Subcontractor’s performance of work under this Subcontract. Subcontractor’s aforesaid indemnity and same harmless obligation shall apply to any act or omission, willful misconduct or negligent conduct, whether active or passive, on the part of Subcontractor or its agents, sub-contractors or employees, and shall apply regardless of any active and/or passive negligent act or omission of Contractor or Owner or their agents or employees; however, such obligation shall not apply to claims arising from the sole negligence or willful misconduct of Contractor or Owner or for defects in design furnished by Owner. In July 2007, Gloria Freeman filed a negligence suit against several defendants, including Bank of America, U.S. Lawns, and Cutting Edge, alleging that she injured herself in July 2005 when she stepped in a hole on the premises of the bank. U. S. Lawns was served with the complaint and summons on September 19, 2007, but failed to file an answer and went into default. See OCGA § 9-11-55. Subsequently, on January 24, 2008, U. S. Lawns filed a motion to open the default in the Freeman action. The trial court denied the motion, finding that although U. S. Lawns had set up a meritorious defense to the tort action, it had failed to exercise due diligence and had no reasonable explanation for its failure to timely answer the complaint. After the trial court denied the motion to open the default, U. S. Lawns and Bank of America negotiated a settlement with Freeman, who dismissed her claims against them with prejudice in March 2009.
In September 2009, U. S. Lawns brought the present complaint seeking common law and contractual indemnification from Cutting Edge for the settlement it paid to Freeman, plus costs and attorney fees incurred in that case. U. S. Lawns moved for summary judgment on the issue of liability, contending that Cutting Edge was liable for indemnity as a matter of law under common law principles and the terms of the subcontract between the parties. Cutting Edge cross-moved for summary judgment, contending that indemnity was not available because the settlement paid by U. S. Lawns arose from its failure to answer the complaint and assert a meritorious defense in the Freeman action. Following a hearing, the trial court denied summary judgment to U. S. Lawns and granted it to Cutting Edge, resulting in this appeal.
