We consider the enforceability of a limitation of liability provision contained in a written contract by which a real estate developer hired an engineering firm to perform professional engineering services necessary for development of a residential subdivision. The provision limited the liability of the engineering firm to the developer for engineering errors to the value of the engineering services or the sum of $50,000.00, whichever was greater. For the following reasons, we affirm the trial court’s ruling that the provision did not violate public policy and was enforceable. RSN Properties, Inc., a real estate developer, entered into a written contract employing Engineering Consulting Services, Inc. ECS, for the sum of $2,200.00, to perform soil studies and to render a professional engineering opinion on the suitability of using septic systems in a residential subdivision being developed by RSN in Paulding County. RSN sued ECS for breach of contract and negligence alleging that ECS inaccurately concluded that most of the building lots were suitable for septic systems; that RSN relied on ECS’s inaccurate opinion to complete road and waterline construction necessary to obtain County approval for development of building lots; and that the County subsequently refused to approve development of many lots in the subdivision because they were not suitable for septic systems. Because RSN’s suit sought more than $100,000.00 in damages, ECS defended in part and moved for partial summary judgment on the basis that the contract contained a limitation of liability provision which stated that: RSN agrees to limit ECS’s liability to RSN arising from ECS’s professional acts, errors or omissions in performing this Agreement, such that the total aggregate liability of ECS to RSN shall not exceed $50,000 or the value of services rendered, whichever is greater. RSN moved for the trial court to strike the provision on the basis that it violated a public policy against limiting liability for professional engineering errors and was unenforceable. The trial court granted ECS’s motion; denied RSN’s motion, and ruled that the provision did not violate public policy and was enforceable.
On appeal, RSN claims that the limitation of liability provision is unenforceable because it violates Georgia public policy. Under OCGA § 13-8-2 a, a contract which is against the policy of the law cannot be enforced. Contracts deemed contrary to public policy include but are not limited to: 1 Contracts tending to corrupt legislation or the judiciary; 2 Contracts in general restraint of trade, as distinguished from contracts in partial restraint of trade as provided for in Code Section 13-8-2.1; 3 Contracts to evade or oppose the revenue laws of another country; 4 Wagering contracts; or 5 Contracts of maintenance or champerty. The provision at issue does not create a contractual obligation listed in OCGA § 13-8-2 a as contrary to public policy, and we find that the provision is not otherwise contrary to the public policy underlying the statute. “The courts must exercise extreme caution in declaring a contract void as against public policy and should do so only in cases free from doubt.” Emory University v. Porubiansky , 248 Ga. 391, 393 282 SE2d 903 1981 punctuation and citation omitted. “Unless prohibited by statute or public policy, the parties to a contract are free to contract on any terms and about any subject matter in which they have an interest. . . .” Piedmont Arbors Condominium Assn. v. BPI Construction Co. , 197 Ga. App. 141 397 SE2d 611 1990 punctuation and citation omitted. Camp v. Aetna Ins. Co. , 170 Ga. 46, 50-51 152 SE 41 1930.
