Plantation Pipe Line Co. v. 3-D Excavators, Inc.

• Decision Date: 03 December 1981
• Docket Number: No. 62422,62422
• Parties: PLANTATION PIPE LINE COMPANY v. 3-D EXCAVATORS, INC.
• Court: Georgia Court of Appeals

Page 102

287 S.E.2d 102

160 Ga.App. 756

PLANTATION PIPE LINE COMPANY v. 3-D EXCAVATORS, INC.

No. 62422.

Court of Appeals of Georgia.

Dec. 3, 1981.

Rehearing Denied Dec. 18, 1981.

Edward T. Floyd, Decatur, for appellant.

Lawrence J. Hogan, Atlanta, for appellee.

McMURRAY, Presiding Judge.

After defendant's (3-D Excavators, Inc.) bid was accepted, it entered into a contract with DeKalb County for the construction of certain sewer improvements. During the course of excavations on the project, machinery operated by one of the defendant's employees struck and damaged a pipeline owned and operated by plaintiff (Plantation Pipe Line Company).

Plaintiff brought this action for damages to the pipeline, filing a complaint which, as amended, included three counts. We are involved here only with Count 3 alleging in effect that plaintiff is a third party beneficiary of the contract between the defendant and DeKalb County and seeking recovery under the contractual provision that defendant has the responsibility of repairing or making good any damage to existing structures or utilities at no expense to DeKalb County.

Plaintiff moved for partial summary judgment on the issue of liability based on Count 3 of its complaint. Defendant moved for partial summary judgment as to Count 3 seeking a judgment in its favor as to this count. Plaintiff's motion for partial summary judgment was denied, and defendant's motion for partial summary judgment as to plaintiff's Count 3 was granted. Plaintiff appeals from the grant of partial summary judgment in favor of defendant as to Count 3 of the complaint and in denying its motion for summary judgment as to Count 3, contending that as a matter of law it is entitled to certain benefits under the contract between defendant and DeKalb County. Held :

Plaintiff relies upon language in the contract between DeKalb County and defendant which provides: "Any damage to existing structures or utilities shall be repaired or made good by the Contractor [defendant] at no expense to the Owner [DeKalb County]." Plaintiff contends that this language shows an intent of the parties to the contract that it be a third party beneficiary of that agreement, citing in support of its position such cases as Allred v. Dobbs, 137 Ga.App. 227, 223 S.E.2d 265; Pioneer Neon Supply Company v. Johnson & Johnson Construction Company, Inc., 95 Ga.App. 565, 98 S.E.2d 156; and Jones v. Abraham, 109 Ga.App. 622, 137 S.E.2d 92. Defendant relying upon Backus v. Chilivis, 236 Ga. 500, 502 (II), 224 S.E.2d 370, contends the plaintiff is not a third party beneficiary as it must appear from the contract that the provision must clearly be intended for the benefit of plaintiff and plaintiff must show more than that it is an incidental beneficiary. The fact that plaintiff would benefit from performance of the agreement is not alone sufficient to support plaintiff's contention that the contract was intended for its benefit. Defendant contends that plaintiff is merely one of a large class of individuals who would benefit from the agreement in question. See also Code Ann. § 3-108 (Ga.L.1949, p. 455); Miree v. United States of America, 242 Ga. 126, 135, 249 S.E.2d 573.

The issue becomes one of whether intention is manifest in the contract that the defendant shall compensate members of the public for injurious consequences arising from its attempts to perform its duties under the contract. Unless such an intention is shown on the face of the contract, defendant is under no duty and consequently plaintiff acquires no right as the third party beneficiary. See Restatement, Contracts, § 145 (now Restatement, Second, Contracts, § 313).

The trial court has expressed in it's order the opinion that the contract in question expressed only an intent that defendant indemnify DeKalb County for any final claims for damages found against the county, to defend the county, to pay the expenses of any litigation against the county, and finally, to pay the amount of any judgment against the county, together with all costs of litigation and defense. Such a construction of the contract in question is certainly correct in some degree as there are provisions requiring the defendant to be "responsible from the time of signing the Contract, or from the time of the beginning of the first work, whichever shall be the earlier, for all injury or damage of any kind resulting from this work, to persons or property. The Contractor shall exonerate, indemnify and save harmless the County...