Assignment:
Jimenez v. Gilbane Building Company, et al. 693 S.E.2d 126 (Ga. Ct. App. 2010)
Judge Adams
The background facts are that Gilbane Building Company was the general contractor for the construction of a new dormitory at Georgia Southern University. Gilbane hired Gill Plumbing as the plumbing contractor, and Gill Plumbing, in turn, hired Jose Alfredo Jimenez to perform plumbing installation work. The building was completed in July 2005, but in October, after the dormitory was occupied by students, a pipe failed causing extensive water damage to the dormitory and to some students' personal belongings. Gilbane was forced to hire Belfor USA Group, Inc., to perform remediation and repair work. Belfor's $990,060.63 bill for the services has not been paid. Belfor filed this action against Gilbane, Gilbane filed a third-party action against Gill Plumbing, and Gill Plumbing filed a fourth-party action against Jimenez. The parties have since been realigned. Currently, both Belfor and Gilbane have claims against Gill Plumbing, and Gill Plumbing has a third-party claim against Jimenez for the costs of the remediation and repair.
In its third-party claim, Gill Plumbing asserts that it had a written agreement with Jimenez that included an indemnity agreement, and that the damages to the dormitory resulted from negligent work performed by Jimenez. Jimenez denied that he entered into a valid and enforceable contract or an indemnity agreement with Gill Plumbing and denied the negligence. The trial court granted Gill's motion for partial summary judgment against Jimenez, finding that he was liable "for indemnification to Gill Plumbing" "in the amount, if any, of damages proven to have resulted from Mr. Jimenez's defective work." Jimenez appeals this ruling and contends that "no contract existed between Mr. Jimenez and the Appellee as a matter of law" or, at least, that there are material issues of fact regarding the contract and the indemnity agreement. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. . . . There is no question that the parties had an oral agreement. The issue before us is whether there was an enforceable written agreement and, if so, what were the terms of that agreement.
The undisputed facts show that Jimenez was hired by Gill Plumbing to perform plumbing services in the "Eagle Village" construction project at Georgia Southern University, that he performed plumbing services, and that he has been paid for the work in the amount of $167,000. Jimenez has never worked for any company other than Gill Plumbing and the two have worked together for at least 15 years. On September 15, 2004, Jimenez signed two documents, which, Gill Plumbing contends, constitute the parties' entire written agreement; Jimenez has signed other documents for Gill Plumbing in the past. The first document is contained on one page, it is dated September 15, 2004, and it has Jimenez's typewritten name and his signature. The main body of the document is as follows:
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Labor Contract Project Eagle Village.
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Item 1
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Slab
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50,100.00
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Item 2
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Rough
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66,800.00
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Item 3
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Set Out
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50,100.00
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Weekly billing to be submitted in draw format. All work must be approved by Larry Pollett. - Weekly safety meetings must be attended. Sub required to attend all jobsite agenda and safety meetings. - Subs required to comply with all general contractor regulations and jobsite regulations - All Subs required to provide certificate of insurance with adequate coverages per limits set by general contractor. - Subs are required to honor subcontractor Warranty for labor and installation free of all defects for a period of (1) year from date of substantial completion. - Subs agree & abide by all terms in the attached Exhibit ‘A' for insurance & indemnity. Total Contract Amount $167,000.00 (Emphasis supplied.) Jimenez's signature appears below the following words, which are written on the side of the above chart:
INSURANCE AND INDEMNITY SUBCONTRACTOR AGREEMENT
The Work performed by the Subcontractor shall be at the risk of the Subcontractor exclusively. To the fullest extent permitted by law, Subcontractor shall indemnify, defend (at Subcontractor's sole expense) and hold harmless Contractor, the Owner (if different from Contractor), affiliated companies of Contractor, . . . from and against any and all claims for . . . damage to property . . . which arise or are in any way connected with the Work performed, Materials furnished, or Services provided under this Agreement by Subcontractor or its agents. . . .
Here, among other problems, it is impossible to tell from the terms of the written document who Jimenez may have promised to indemnify, and that fact has not been made sufficiently clear by either the rules of construction or any performance under the agreement. The trial court erred by granting partial summary judgment in favor of Gill Plumbing on the purported indemnification agreement. Jury issues remain on the terms of the parties' agreement. Judgment reversed.
Questions
1. Explain what the trial court meant in finding that Jimenez was liable "for indemnification to Gill Plumbing" "in the amount, if any, of damages proven to have resulted from Mr. Jimenez's defective work."
2. Why did the court conclude that Gill did not have an enforceable agreement with Jiminez?
3. Why did the appeals court overturn the trial court's summary judgment?