Estate of Pitts v. City of Atlanta, A11A1487.

• Decision Date: 16 July 2013
• Docket Number: No. A11A1487.,A11A1487.
• Citation: 323 Ga.App. 70,746 S.E.2d 698
• Parties: The ESTATE OF Mack PITTS, et al. v. CITY OF ATLANTA, et al.
• Court: Georgia Court of Appeals

323 Ga.App. 70

746 S.E.2d 698

The ESTATE OF Mack PITTS, et al.

v.CITY OF ATLANTA, et al.

No. A11A1487.

Court of Appeals of Georgia.

July 16, 2013.

James Patrick M. Sneed, Atlanta, Kate Sievert Cook, James E. Butler Jr., Joel O. Wooten Jr., Columbus, Matthew Evan Cook, Alan John Hamilton, for Appellants.

Walter H. Bush Jr., Christopher Bryan Freeman, Steven J. DeFrank, Stephen Michael Schatz, James H. Fisher II, Kawania Brown James, Denise Weiner Spitalnick, Atlanta, Robert P. White, Emmett K. Bittick Jr., Sylvia H. Walbolt, for Appellees.

McFADDEN, Judge.

This case returns to us from the Supreme Court of Georgia. It is an appeal from the trial court's rulings on cross-motions for summary judgment in a case brought by the estate and the minor children of Mack Pitts (collectively, “the Estate”) against the City of Atlanta (“the City”) and against two joint ventures (“the construction companies”)—one comprised of Holder Construction Company, Manhattan Construction Company, C.D. Moody Construction Company, Inc., and Hunt Construction Company, Inc. (“the General Contractor”) and the other comprised of Archer Western Contractors, Ltd. and Capital Contracting, Inc. (“the Subcontractor”).¹ The Estate alleged that Pitts, who was killed in an accident while working on the construction of the international terminal at Atlanta's Hartsfield–Jackson International Airport, was an intended beneficiary of promises within contracts among the City, the General Contractor, and several tiers of subcontractors (including the defendant Subcontractor), requiring the contractors and subcontractors to obtain certain levels of automobile liability insurance coverage and to require their subcontractors to do the same. The Estate alleged that the defendants had breached these promises. It also alleged that the City had breached a separate duty to ensure that all contractors and subcontractors maintained the required insurance.

The trial court granted the defendants' motions for summary judgment and denied the Estate's motion for summary judgment. In Estate of Pitts v. City of Atlanta, 312 Ga.App. 599, 719 S.E.2d 7 (2011) (“Pitts I ”), we affirmed in part and reversed in part, finding that the Estate was entitled to summary judgment on its contract claims against all of the defendants, but that the City was entitled to summary judgment on the claim for breach of the separate duty. In Archer Western Contractors v. Estate of Pitts, 292 Ga. 219, 735 S.E.2d 772 (2012) (“Pitts II ”), the Supreme Court vacated our judgment and remanded the case to us with direction. We therefore vacate our earlier decision.

The Estate argued in Pitts I that the trial court erred in its grant of summary judgment to the City on its claim for breach of a separate duty, independent of contract. We affirmed the trial court on the ground that no evidence of such a duty existed. Pitts I, 312 Ga.App. at 609(2), 719 S.E.2d 7. The Supreme Court did not address this portion of our opinion. Pitts II, 292 Ga. 219 n. 1, 735 S.E.2d 772.

The Estate also claimed that the City had breached a contractual duty for which Pitts was an intended third party beneficiary. We held that the Estate was entitled to summary judgment on this claim. Pitts I, 312 Ga.App. at 602(1), 719 S.E.2d 7. The Supreme Court, however, found no evidence of breach of any contractual duty by the City, effectively reversing our holding. Pitts II, 292 Ga. at 228–230(3), 735 S.E.2d 772.

Finally, the Estate claimed that the construction companies had breached a contractual duty for which Pitts was an intended third party beneficiary. We held that it was entitled to summary judgment on this claim. In so holding, we determined that contract language—specifically the term “all participants”—unambiguously included a worker such as Pitts among the intended beneficiaries of the minimum automobile liability coverage requirement. Pitts I, 312 Ga.App. at 603–604(1)(a)(i), 719 S.E.2d 7. The Supreme Court disagreed, instead finding the term “all participants” to be susceptible of more than one reasonable meaning. Pitts II, 292 Ga. at 225–226(2), 735 S.E.2d 772. Having determined that “all participants” is ambiguous as used in the subject contracts, the Supreme Court remanded the case to us with instructions. We are to determine whether that ambiguity can be resolved as a matter of law. We proceed accordingly.

As to the City, we again affirm the trial court's grant of summary judgment on the claim for breach of a duty independent of the contracts. We also affirm the trial court's grant of summary judgment to the City and its denial of summary judgment to the Estate on the Estate's claim for breach of contract against the City.

As to the construction companies, however, after having applied the rules and canons of contract construction and considered parol evidence, we remain convinced that the parties to the contract intended a worker such as Pitts to be a third party beneficiary of the promises made by the construction companies to obtain the required minimum automobile liability insurance coverage and to ensure that their subcontractors of all tiers did so as well. We again find that the undisputed evidence shows that these promises were breached, that the Estate was harmed thereby, and that the exclusive remedy provisions of the Workers' Compensation Act do not apply. Accordingly, we again reverse both the trial court's grant of summary judgment to the construction companies and its denial of summary judgment to the Estate.

1. Facts and procedural posture.

The facts and procedural posture of this case are set forth in detail in Pitts I, 312 Ga.App. at 599–602, 719 S.E.2d 7, and Pitts II, 292 Ga. at 220–223(1), 735 S.E.2d 772. In summary, Mack Pitts was killed when he was struck by a truck driven by an employee of A & G Trucking, Inc. while Pitts was working on the construction of the international terminal at Hartsfield–Jackson International Airport. The Estate won a wrongful death judgment against A & G Trucking, which could not satisfy that judgment. The Estate then brought the instant action against the City, alleging breach of contract and breach of ministerial duty, and against the construction companies, alleging breach of contract.

Specifically regarding the breach of contract claim, the Estate alleged that the construction companies were required by contract to purchase and maintain automobile liability insurance with bodily injury coverage of at least $10,000,000 per person and occurrence and to bind lower tier subcontractors to this minimum coverage requirement. See generally Pitts II, 292 Ga. at 220–223(1), 735 S.E.2d 772 (describing contractual provisions); Pitts I, 312 Ga.App. at 601–602, 719 S.E.2d 7 (same). The minimum coverage requirement was set out in a 15–page document, entitled “Owner's Controlled Insurance Policy,” which was an addendum to the City's contract with the General Contractor. See Pitts II, 292 Ga. at 222(1), 735 S.E.2d 772. In its opinion, the Supreme Court termed this 15–page document the “OCIP addendum,” see id., and we adopt that terminology for this opinion.

In the contract between the City and the General Contractor, the General Contractor agreed to abide by the minimum coverage requirements in the OCIP addendum, and to require its subcontractors to do the same. See Pitts II, 292 Ga. at 223(1), 735 S.E.2d 772. In a subcontract between the General Contractor and the defendant Subcontractor, the Subcontractor also agreed to be bound by these terms and to require the same of its lower-tier subcontractors. See Pitts I, 312 Ga.App. at 601–602, 719 S.E.2d 7. In Pitts I, we held that A & G Trucking was such a lower-tier subcontractor and was subject to the minimum coverage requirement, id. at 602–603(1), 719 S.E.2d 7, and the Supreme Court has not held otherwise. A & G Trucking did not carry automobile liability insurance satisfying the minimum coverage requirement set forth in the OCIP addendum.

2. Action for breach of duty against the City.

In Division 2 of our decision in Pitts I, we affirmed the trial court's grant of summary judgment to the City on the Estate's claim against it for breach of a duty that the Estate argued arose independently of the contracts; the Estate cited OCGA § 51–1–8 for the source of this duty. Pitts I, 312 Ga.App. at 608–609(2), 719 S.E.2d 7. The Supreme Court neither addressed nor considered this portion of our opinion, instead noting that this separate claim of the Estate “is not before us, and we, therefore, say nothing more about it.” Pitts II, 292 Ga. 219 n. 1, 735 S.E.2d 772. Accordingly, our ruling in Division 2 was not disturbed by the Supreme Court and remains the law of the case. Shadix v. Carroll County, 274 Ga. 560, 563–564(1), 554 S.E.2d 465 (2001); Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730, 731, 514 S.E.2d 201 (1999); Mayor & Aldermen of Savannah v. Batson–Cook Co., 318 Ga.App. 152, 154, 734 S.E.2d 743 (2012). We again affirm the grant of summary judgment to the City on the separate claim of breach of a private duty.

3. Action for breach of contract against the City.

The Supreme Court held that neither the contract between the City and the General Contractor, nor the OCIP addendum incorporated therein, contained a “promise by the City to ensure that subcontractors carried adequate insurance.” Pitts II, 292 Ga. at 229(3), 735 S.E.2d 772. The Supreme Court further held that, “[t]o the extent that the Court of Appeals concluded that the City failed to fulfill these obligations [to maintain the required and necessary OCIP policies and to procure, pay for and administer the OCIP] with respect to automobile liability insurance for A & G Trucking, it erred.” Id. We adopt these rulings as our own and find no contractual duty on the part of the City to ensure that A & G Trucking carried the amount of automobile liability coverage required by the OCIP addendum. Accordingly, we affirm the trial court's grant of summary judgment to the...