NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: June 11, 2024
S23G0771. OMSTEAD v. BPG INSPECTION, LLC et al.
MCMILLIAN, Justice.
In early 2020, Albert Omstead and BPG Inspection, LLC, a
home inspection company, entered into a contract setting out the
terms for an inspection of a home and property that he and his wife,
Jessique Omstead, desired to purchase. One of the agreed-upon
terms was a one-year limitation providing that Mr. Omstead could
not sue BPG Inspection or its employees after one year from the
inspection. After the inspection was performed, the Omsteads
purchased the home. More than a year later, Mr. Omstead died after
a retaining wall at his home collapsed on him. Mrs. Omstead then
filed a wrongful death suit against BPG Inspection and one of its
inspectors, James Golden (collectively, “BPG”).1 The trial court
1 From here on, we refer to Jessique Omstead as “Omstead” or “Mrs.
Omstead,” and to her deceased husband Albert Omstead as “Mr. Omstead.” determined on the cross-motions for summary judgment that for
various reasons, the one-year limitation was unenforceable, but the
Court of Appeals reversed. We granted review to consider whether
the Court of Appeals erred in approving the one-year limitation and
whether the limitation is void as against public policy. We conclude
that the one-year limitation is enforceable and that the provision is
not void as against public policy. Accordingly, we affirm. 2
1. We review the legal issues raised in a grant or denial of a
motion for summary judgment de novo. See City of Winder v. Barrow
County, ___ Ga. ___ (1) (899 SE2d 157) (2024) (2024 WL 923102,
2024 Ga. LEXIS 67); Toyo Tire North America Mfg., Inc. v. Davis,
299 Ga. 155, 161 (2) (787 SE2d 171) (2016). However, when factual
issues are presented on cross-motions for summary judgment, as
they are here, “we view the evidence in the light most favorable to
the nonmovants.” Raffensperger v. Jackson, 316 Ga. 383, 387 (2)
2 This case was orally argued on March 21, 2024. We thank Georgians
for Lawsuit Reform and the Georgia Trial Lawyers Association for their helpful amicus curiae briefs.
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(888 SE2d 483) (2023).
So viewed, in early 2020, Albert Omstead engaged BPG
Inspection to inspect a property the Omsteads wanted to purchase.
Golden, a BPG employee, inspected the property on February 13,
2020. On the same day and before the inspection, Mr. Omstead
signed an agreement (“Inspection Agreement” or “Agreement”)
provided by BPG, which contained several limitations on liability,
including a provision limiting BPG’s liability to one year from the
inspection. In pertinent part, this one-year limitation stated in
bolded font:
YOU MAY NOT FILE A LEGAL ACTION,
WHETHER SOUNDING IN TORT (EVEN IF DUE TO
OUR NEGLIGENCE OR OTHER FAULT), CONTRACT,
ARBITRATION OR OTHERWISE, AGAINST US OR
OUR EMPLOYEES MORE THAN ONE YEAR AFTER
THE INSPECTION, EVEN IF YOU DO NOT DISCOVER
A DEFECT UNTIL AFTER THAT.
In exchange for a $380 inspection fee, Golden performed an
inspection and prepared an inspection report (“Report”). The Report
provided numerous comments on items needing repair or posing
health and safety concerns, but stated that “[l]atent, inaccessible, or
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concealed defects are excluded from this inspection.” Instead, the
Report described the inspection’s scope as “a non-invasive
examination of readily accessible systems and components as
outlined in the Standards of Practice of the American Society of
Home Inspectors” or in the client’s “specific state standards.” As part
of the inspection, Golden looked at a retaining wall running the
length of the property’s driveway. The Report noted that the wall
had been “[i]nspected,” which the Report defined as “visually
observed and appears to be functioning as intended.” The Report did
not identify defects in the retaining wall or recommend that the wall
be repaired.
On March 7, 2020, Golden, at the request of Omstead’s real
estate agent, returned to the property to reinspect several items that
the Omsteads had requested that the seller repair pursuant to
BPG’s recommendations. After that inspection, a second inspection
report and summary of key findings were generated, but neither
document identified defects in the retaining wall or recommended
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that the wall be repaired.3
Following the inspections, the Omsteads purchased the
property. On July 16, 2020, Omstead posted on Instagram photos of
the retaining wall and garage, with a caption including the
observation that “[t]here are cracks in the retaining wall that spit
water when it rains, but no official drain holes.”
Over a year later, during a rainstorm on July 19, 2021, Mr.
Omstead began placing a plastic tarp and a piece of particle board
on top of the retaining wall to divert water away from the garage.
As he was doing so, the wall collapsed on him, and he died as a
result.
In September 2021, Omstead filed suit against BPG and
Golden for wrongful death, alleging negligence, fraud, breach of
3 Omstead claims that this second inspection is not covered by the Inspection Agreement, pointing to language in the Agreement stating that “[t]his fee is based on a single visit to the property,” to testimony that a reinspection is “another inspection,” and to the lack of a second agreement. However, Omstead does not dispute that the second inspection was a followup to the first inspection to ensure that the recommended repairs were made. Thus, the second inspection flows directly from the Inspection Agreement, and the evidence on which Omstead relies does not create a genuine issue of material fact as to whether the second inspection was covered by the Inspection Agreement.
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contract, and breach of express and implied warranties, among other
claims. She later added a count for gross negligence.4 BPG moved
for summary judgment, seeking to enforce the Inspection
Agreement’s limitations on liability, including its one-year
limitation. Omstead filed a cross-motion for summary judgment,
asking, among other things, that the trial court hold that the one-
year limitation provision was void as against public policy and, in
the alternative, that the limitation did not apply to Omstead’s
claims because it is an exculpatory clause that must be read strictly
against the drafter and the clause only refers to claims for property
damage.
The trial court denied BPG’s motion for summary judgment
and granted Omstead’s cross-motion, concluding that the
Agreement’s limitations on liability did not apply to Omstead’s
personal injury and wrongful death claims, and that to the extent
they did, they were void as against public policy.
The Court of Appeals reversed and directed the trial court to
4 Omstead also added claims as representative of Mr. Omstead’s estate.
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enter summary judgment in favor of BPG. As an initial matter, the
Court of Appeals held that though the Inspection Agreement was
between BPG and Mr. Omstead, BPG could assert the Agreement’s
one-year limitation as a defense against Omstead’s claims as well.
See BPG Inspection, LLC v. Omstead, 367 Ga. App. 128, 131-32 (1)
(883 SE2d 593) (2023) (“‘any defense which would have been good
against the decedent is good against his representatives in a
wrongful death action’” (emphasis omitted; quoting United Health
Svcs. of Ga. v. Norton, 300 Ga. 736, 738 (2) (797 SE2d 825) (2017)).
Next, the Court of Appeals concluded, as a matter of contractual
interpretation, that the Agreement’s one-year limitation applied to
all of Omstead’s claims, including her tort claims, because the
limitation expressly applied to any “legal action, whether sounding
in tort (even if due to [BPG’s] negligence or other fault), contract,
arbitration or otherwise[.]” See 367 Ga. App. at 132 (1) (quoting
Inspection Agreement). Finally, the Court of Appeals held that the
one-year limitation was enforceable and not void as against public
policy. See id. at 132-36 (1).
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We granted review on two questions: (1) Did the Court of
Appeals err in approving a provision in a contract between a home
inspection company and a consumer that limits the home inspection
company’s liability for claims arising out of any breach of its legal or
contractual duties to within one year after the inspection? (2) Is such
a provision void as against public policy?
2. We first consider whether the Court of Appeals erred in
enforcing the one-year limitation against Omstead. First, Omstead
argues that the one-year limitation applies only to contract claims
and not claims involving bodily injury or wrongful death or to claims
for gross negligence and fraud. Next, she asserts that the Court of
Appeals erred in treating the one-year limitation as a “statute of
limitation” even though the limitation functioned as a
“contractually-effectuated statute of repose,” which Omstead claims
Georgia law prohibits. Third, she argues that the one-year limitation
impermissibly voids “professional standards of conduct.” We address
each argument in turn.
(a) “The cardinal rule of [contract] construction is to ascertain
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the intention of the parties. Where the language in a contract is
unambiguous, that task is often a straightforward one.” Sutherlin v.
Sutherlin, 301 Ga. 581, 584-85 (II) (A) (802 SE2d 204) (2017)
(citation and punctuation omitted). Turning to the language of the
contract, we observe that the one-year limitation provides: “You may
not file a legal action, whether sounding in tort (even if due to
[BPG’s] negligence or other fault), contract, arbitration or
otherwise[.]” By its plain language, the one-year limitation
expressly applies to tort and contract claims. Thus, as a threshold
matter, we agree with the Court of Appeals’s interpretation of the
one-year limitation as applying to Omstead’s wrongful death claims,
which sound in tort and contract. See First Acceptance Ins. Co. of
Georgia, Inc. v. Hughes, 305 Ga. 489, 494 (2) (826 SE2d 71) (2019)
(“Contractual language that is plain, unambiguous, and capable of
only one reasonable interpretation must be afforded its literal
meaning” (citation and punctuation omitted)). Compare Langley v.
MP Spring Lake, LLC, 307 Ga. 321, 327 (834 SE2d 800) (2019)
(construing a lease agreement’s limitation on liability as applying
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“only to claims arising from the contract, and not to Langley’s free-
standing tort claims,” where that limitation used the words “any
legal action” but did not expressly state that it applied to tort
claims).5
Relying on McFann v. Sky Warriors, Inc., 268 Ga. App. 750
(603 SE2d 7) (2004), Omstead argues that even if the one-year
limitation applies to tort claims in general, the Court of Appeals
erred in enforcing the one-year limitation to bar her claims for gross
negligence and fraud because such a limitation is an exculpatory
clause and such clauses have been held to not apply to claims of
gross negligence and fraud. See id. at 758 (4) (“Although exculpatory
clauses are valid and binding and not void as against public policy,
exculpatory clauses do not relieve a party from liability for acts of
5 Omstead argues that the one-year limitation does not apply to her wrongful death claims because the Inspection Agreement focuses on the discovery and repair of property “defects” rather than on death or bodily injury. But again, Omstead’s wrongful death claims sound in tort and contract, and the one-year limitation plainly states that she may not file “a legal action, whether sounding in tort (even if due to [BPG’s] negligence or other fault) [or] contract [.]” (emphasis supplied). Thus, we read the limitation as applicable to Omstead’s wrongful death claims. See First Acceptance Ins. Co., 305 Ga. at 494 (2).
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gross negligence or wilful or wanton conduct.” (citation and
punctuation omitted)).
An “exculpatory clause” is “[a] contractual provision relieving
a party from liability resulting from a negligent or wrongful act.”
EXCULPATORY CLAUSE, Black’s Law Dictionary (11th ed. 2019).
But here, even if the limitation operates to bar suit against BPG
given the timing of Mr. Omstead’s death, the limitation did not
purport to relieve or release BPG from liability, because the
limitation permitted suit against BPG—that is, subjected BPG to
potential liability—within a year from the inspection. 6 Compare
Emory University v. Porubiansky, 248 Ga. 391, 392 (282 SE2d 903)
(1981) (language in dental form providing that the patient agreed to
“‘expressly waive and relinquish any and all claims of every nature
I or my minor child or ward may have’” and further “‘to hold them
harmless as the result of any claims by such minor child or ward,
arising out of any dental treatment rendered, regardless of its
6 We express no opinion on whether a contractual limitation period shorter than one year from the date an action accrues or from another date, amounts to or could amount to an exculpatory clause.
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nature or extent’” was an exculpatory clause); McFann, 268 Ga. App.
at 751, 753-54 (2) (exculpatory clause provided that “‘Participant
hereby releases, waives, and forever discharges Sky Warriors, Inc.’”
from liability, without permitting any period to file suit); Colonial
Properties Realty Ltd. Partnership v. Lowder Const. Co., 256 Ga.
App. 106, 107, 112 (5) (567 SE2d 389) (2002) (exculpatory provisions
provided that a party “waive[d] all rights” for various fire damages,
without specifying a timeframe where the rights were still
preserved). Accordingly, we conclude that the principle enunciated
in McFann—that “exculpatory clauses” do not protect against
liability for gross negligence or wilful or wanton conduct, see 268 Ga.
at 758 (4)—does not apply to the one-year limitation in this case.
(b) Omstead also contends that the limitation provision should
not be enforced because it acts as a “contractual repose” provision,
running from the date of the inspection rather than the date that
her action accrued. As relevant here, Omstead asserts a claim for
wrongful death, which “does not accrue until the death occurs[.]”
Williams v. Georgia Dept. of Human Resources, 272 Ga. 624, 626
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(532 SE2d 401) (2000). See OCGA § 9-3-33 (“[A]ctions for injuries to
the person shall be brought within two years after the right of action
accrues[.]”). Omstead thus argues that the one-year limitation
expired before the wrongful death claim accrued, depriving Omstead
of the opportunity to assert a claim, and that no such type of
“contractual repose” provision has been enforced in Georgia.
We start with first principles. “[A] party may contract away
liability to the other party for the consequences of his own negligence
without contravening public policy, except when such agreement is
prohibited by statute.” Milliken & Co. v. Georgia Power Co., 306 Ga.
6, 8 (1) (829 SE2d 111) (2019) (citation and punctuation omitted).
See New v. Southern R. Co., 116 Ga. 147, 147-51 (42 SE 391) (1902)
(holding that contractual clause exempting railway company from
liability for injuries sustained by employees during employment,
could bar non-criminal negligence claims against company).
Omstead offers no case where we have rejected a contractual
provision like the one-year limitation in this case on the grounds
that the limitation period expired before a party’s claims accrued or
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on the grounds that the limitation period deprived a party of the
opportunity to bring a claim. And given our longstanding caution in
interfering with the freedom of parties to contract, our silence on
“contractual repose” periods is not enough for us to declare them
void or unenforceable. See generally Innovative Images, LLC v.
Summerville, 309 Ga. 675, 681 (3) (a) (848 SE2d 75) (2020) (“this
Court long emphasized that courts must exercise extreme caution in
declaring a contract void as against public policy and may do so only
where the case is free from doubt and an injury to the public clearly
appears” (citation and punctuation omitted)); Nat’l Cas. Co. v.
Georgia Sch. Boards Assn.-Risk Mgmt. Fund, 304 Ga. 224, 229 (818
SE2d 250) (2018) (“it is the paramount public policy of this State
that courts will not lightly interfere with the freedom of parties to
contract on any subject matter, on any terms, unless prohibited by
statute or public policy, and injury to the public interest clearly
appears” (citation and punctuation omitted)).
Moreover, while we have not found a case from this Court
considering whether to enforce a contractual limitation provision
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precisely like the one here, we have long enforced contractual
provisions setting a time period in which a party can file an action,
even when that period is shorter than the one, if any, set by
statute—that is, even when the period functions to deprive a party
of the chance to file suit where the law would otherwise permit suit.
See Langley, 307 Ga. at 321-23 & n.1 (agreeing that a contract’s one-
year limitation period could apply to a breach-of-contract claim even
though statute of limitation for breach of a written contract is six
years under OCGA § 9-3-24); Thornton v. Ga. Farm Bureau Mut.
Ins. Co., 287 Ga. 379, 380, 380-81 (1), 389 (4) (695 SE2d 642) (2010)
(approving insurance contract’s one-year limitation period even
though statute of limitation for contract claims was six years); Mass.
Benefit Life Assn. v. Robinson, 104 Ga. 256, 272 (30 SE 918) (1898)
(“[I]t is [ ] within the power of the contracting parties to agree among
themselves upon a period of time which would amount to a statute
of limitations, either greater or less than the period fixed by the
law”); Brown v. Savannah Mut. Ins. Co., 24 Ga. 97, 101 (1858)
(approving six-month contractual limitation period and stating
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“[t]here is no reason why a party may not enter into a covenant, that
for an alleged breach of contract, the injured party shall sue within
a period less than that fixed by the statute of limitations as a bar”).
We see no reason why the one-year limitation in this case should not
likewise be enforced.
Next, Omstead argues that we should refuse to enforce the one-
year limitation, because by barring Omstead’s claims before they
accrued, the limitation is akin to the statutes of repose that ran from
the date a negligent act or omission occurred and that we found
unconstitutional in Clark v. Singer, 250 Ga. 470, 471-72 (298 SE2d
484) (1983), and in Shessel v. Stroup, 253 Ga. 56, 56, 58 (316 SE2d
155) (1984). But Clark and Shessel are inapposite. In both cases we
held that a statute of repose was unconstitutional as applied,
because the statute violated equal protection clauses under the
federal and state constitutions. See Clark, 250 Ga. at 472 (“We find
no rational basis for a limitation scheme which permits a medical
malpractice wrongful death action if the patient dies within two
years of the defendant's negligent act but which bars a wrongful
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death action if the patient lives for two years after defendant's
negligent act where the defendant is a doctor but not in other
wrongful death cases.”); Stressel, 253 Ga. at 58 (similar statutory
scheme involving a period of repose failed to show “substantial
relation” to the object of the legislation). Here, by contrast, Omstead
makes no argument challenging any statutory scheme on equal
protection grounds.
(c) In addition, Omstead argues that the one-year limitation
should not be enforced because it “contractually avoid[s]
professional standards of conduct” in violation of Porubiansky.
There, we held that “it is against the public policy of this state to
allow one who procures a license to practice dentistry to relieve
himself by contract of the duty to exercise reasonable care.”
Porubiansky, 248 Ga. at 394. Omstead argues that home inspectors
owe duties under OCGA §§ 8-3-331 and 8-3-332, including duties to
provide a written report and make recommendations for repairs.7
7 Omstead also suggests that BPG owed Mr. Omstead duties that one
owes those for whom one voluntarily undertakes to perform services. See
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But Porubiansky is distinguishable. There, we did not enforce
the liability release at issue because “the attempt to relieve the clinic
. . . from the statutory duty of care for licensed professional medical
services conflicts with and frustrates the policies of the state as
expressed through our General Assembly.” 248 Ga. at 392-93.
Dentistry, we explained, is a profession “licensed and controlled by
the state.” See id. at 393-94 (citing Ga. Code Ann. of 1933, Chapter
§ 84-7). The “legislature has established a minimum standard of
care” that “governs the duties and responsibilities of a dentist.” Id.
at 394 (citing Ga. Code Ann. of 1933, § 84-924 (now OCGA § 51-1-
27) (“A person professing to practice surgery or the administering of
medicine for compensation must bring to the exercise of his
profession a reasonable degree of care and skill.”)).
The statutory backdrop in Porubiansky—which reflected “the
Rymer v. Polo Golf & Country Club Homeowners Assn., Inc., 335 Ga. App. 167, 175-76 (2) (b) (780 SE2d 95) (2015) (referencing Restatement (Second) of Torts § 323 to discuss a duty of one who voluntarily undertakes to perform a service for another who relies on it, to perform that service with reasonable care). But BPG was compensated for performing the inspection, so the voluntary undertaking doctrine does not apply.
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strong policy of the state . . . to regulate those professionals that it
licenses,” 248 Ga. at 393-94—is not present here. While dentists are
licensed professionals under the Georgia Code, see OCGA § 43-11-1,
et seq. (Title 43 (“Professions and Businesses”), Chapter 11
(“Dentists, Dental Hygienists, and Dental Assistants”)); Ga. Code
Ann. of 1933, Chapter § 84-7, no similar statutory scheme or policy
to license home inspectors exists. And, the statutory scheme
governing home inspections focuses on the content of the inspections
and resulting reports, rather than on the duty of home inspectors as
professionals. Omstead points to OCGA § 8-3-331, 8 but nothing in
the statute’s plain text imposes upon home inspectors a duty to
conduct an inspection with a particular standard of care, as do the
8 OCGA § 8-3-331 states:
Every home inspector shall provide to the person on whose behalf a home or single-family dwelling is being inspected a written document specifying: (1) The scope of the inspection, including those structural elements, systems, and subsystems to be inspected; (2) That the inspection is a visual inspection; and (3) That the home inspector will notify in writing the person on whose behalf such inspection is being made of any defects noted during the inspection, along with any recommendation that certain experts be retained to determine the extent and corrective action necessary for such defects.
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statutes governing dentists and other medical professionals. See
Porubiansky, 248 Ga. at 393-94. Instead, the statute merely requires
a home inspector to provide a “written document” specifying certain
aspects of the inspection: (1) the inspection’s “scope,” (2) “[t]hat the
inspection is a visual inspection,” and (3) “[t]hat the home inspector
will notify in writing” the consumer “of any defects noted during the
inspection, along with any recommendation that certain experts be
retained to determine the extent and corrective action necessary for
such defects.”9 OCGA § 8-3-331.
Unless the contractual provision is otherwise in contravention
of public policy, which we consider below, Omstead has offered no
reason not to enforce the one-year limitation here—a period the
parties have mutually agreed to by contract—even though the one-
year period expired before Omstead’s wrongful death claim accrued.
Thus, we answer the first question posed on certiorari in the
negative: the Court of Appeals did not err in approving a provision
9OCGA § 8-3-332, in turn, provides that those who violate OCGA § 8-3-
331 “shall be guilty of a misdemeanor.”
— 20 —
in a contract between a home inspection company and a consumer
that limits the home inspection company’s liability for claims arising
out of any breach of its legal or contractual duties to within one year
after the inspection. 10
3. Turning to the second question, we consider whether the
one-year limitation is void as against public policy. “A contract that
is against the policy of the law cannot be enforced.” OCGA § 13-8-2
(a). And as this Court has stated:
A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract
10 At oral argument, some members of the Court raised the concern that
the one-year limitation may be voidable as unconscionable. We have defined an unconscionable contract as one that “no sane man not acting under a delusion would make and that no honest man would take advantage of[.]” NEC Technologies., Inc. v. Nelson, 267 Ga. 390, 391 (1) n.2 (478 SE2d 769) (1996) (citation and punctuation omitted). Though an unconscionability inquiry may overlap with an inquiry on whether a contract violates public policy, the two inquiries are different. Compare Innovative Images, 309 Ga. at 684-85 (3) (b) (“We examine unconscionability from the perspective of substantive unconscionability, which looks to the contractual terms themselves, and procedural unconscionability, which considers the process of making the contract.” (emphasis, citation, and punctuation omitted)), with Dept. of Transp. v. Brooks, 254 Ga. 303, 312 (1) (328 SE2d 705) (1985) (a contract is not contrary to public policy unless the legislature has declared it to be so, or unless its consideration or purpose is illegal or immoral). Because Omstead never argued before the trial court that the one-year limitation was unconscionable, we decline to address whether the limitation is voidable as unconscionable.
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is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law.
Dept. of Transp. v. Brooks, 254 Ga. 303, 312 (1) (328 SE2d 705)
(1985) (citation and punctuation omitted). See also OCGA § 1-3-7
(“Laws made for the preservation of public order or good morals may
not be dispensed with or abrogated by any agreement. However, a
person may waive or renounce what the law has established in his
favor when he does not thereby injure others or affect the public
interest.”). We have long emphasized that “‘courts must exercise
extreme caution in declaring a contract void as against public policy’
and may do so only ‘where the case is free from doubt and an injury
to the public clearly appears.’” Innovative Images, 309 Ga. at 681 (3)
(a) (quoting Porubiansky, 248 Ga. at 393). “Importantly, a contract
is void as against public policy not because the process of entering
the contract was improper and objectionable by one party or the
other, but rather because the resulting agreement itself is illegal and
normally unenforceable by either party.” Id. (emphasis in original).
Omstead argues that the one-year limitation is void because it
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violates OCGA § 13-8-2 (b), which states, in pertinent part:
A covenant, promise, agreement, or understanding [1] in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and excavating connected therewith, [2] purporting to require that one party to such contract or agreement shall indemnify, hold harmless, insure, or defend the other party to the contract or other named indemnitee, including its . . . employees, against liability or claims for damages, losses, or expenses, including attorney fees, arising out of bodily injury to persons, death, or damage to property caused by or resulting from the sole negligence of the indemnitee, or its . . . employees, is against public policy and void and unenforceable.
(Emphasis supplied).
Omstead contends that the Inspection Agreement is a “contract
or agreement relative to the construction, alteration, repair, or
maintenance” of property, see OCGA § 13-8-2 (b), because the
Agreement mentions “repairing [a] defect,” an inspection was
performed to identify defects in need of repair, and an inspection
report was generated that contained many comments concerning
“defects” and “repairs.” See Milliken, 306 Ga. at 10 (1) (a) (“Georgia
courts have consistently construed OCGA § 13-8-2 (b) broadly”
— 23 —
(citation and punctuation omitted)); Kennedy Dev. Co., Inc. v. Camp,
290 Ga. 257, 259-60 (719 SE2d 442) (2011) (listing a variety of
contracts to which OCGA § 13-8-2 (b) has been applied).
Assuming, without deciding, that the Inspection Agreement is
a type of contract that falls under OCGA § 13-8-2 (b), we consider
whether the one-year limitation “purport[s] to require that one party
to such contract or agreement shall indemnify, hold harmless,
insure, or defend the other party.” See OCGA § 13-8-2 (b); Kennedy,
290 Ga. at 259 (“[I]n order to fall within the ambit of [OCGA § 13-8-
2 (b)], an indemnification provision must . . . promise to indemnify a
party for damages arising from that own party’s sole negligence.”).
Omstead contends that the one-year limitation is void because
it requires Omstead to “indemnify” or “hold [BPG] harmless.” 11 We
have defined indemnity as “the obligation or duty resting on one
person to make good any loss or damage another has incurred by
11 Omstead does not contend that the one-year limitation required Omstead to “insure” or “defend” BPG. Also, Omstead does not claim any material difference between an “indemnity” and “hold harmless” provision. We need not parse whether there is any material difference between these types of provisions because we conclude that the one-year limitation is neither.
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acting at his request or for his benefit.” Lanier at McEver, L.P. v.
Planners & Engineers Collaborative, Inc., 284 Ga. 204, 206-07 (2)
(663 SE2d 240) (2008) (citation and punctuation omitted). See
INDEMNIFY, Black’s Law Dictionary, 11th ed. (“Indemnify” means
“[t]o reimburse (another) for a loss suffered because of a third party’s
or one’s own act or default,” to “promise to reimburse (another) for
such a loss,” or to “give (another) security against such a loss.”). To
“hold harmless” means to “absolve (another party) from any
responsibility for damage or other liability arising from the
transaction.” HOLD HARMLESS, Black’s Law Dictionary, 11th ed.
See Lanier, 284 Ga. at 209-10 (1) (Melton, J., dissenting) (citing
Black’s Law Dictionary 731 (6th ed. 1990) to state that “[a] hold
harmless clause is an ‘[a]greement or contract in which one party
agrees to hold the other without responsibility for damage or other
liability arising out of the transaction involved.’”).
Here, the plain text of the one-year limitation does not require
Omstead to reimburse or “make good” any damage to BPG, nor does
it require that Omstead hold BPG harmless for any loss. See Lanier,
— 25 —
284 Ga. at 206 (2) (citation and punctuation omitted). Compare
Milliken, 306 Ga. at 7 (provision stated that one party “shall hold
[Milliken] . . . harmless from any damages to property or persons”
resulting from that party’s conduct (punctuation omitted)); Kennedy,
290 Ga. at 258 (indemnification and hold-harmless provision stated
that an entity “shall . . . indemnify, defend and hold [Appellant]
harmless”).
Yet, Omstead argues that the one-year limitation still
functions as an indemnity or hold-harmless provision, just as a
contractual clause did in Lanier, 248 Ga. at 206-07 (2). In Lanier, a
large construction developer retained a civil engineering firm to
design a storm-water drainage system and, in the contract for
services, agreed to a clause limiting the liability of the engineering
firm for any claims, including those of third parties, to the
engineering firm’s fee for the services. See Lanier, 284 Ga. at 204-
05. We recognized in Lanier that though the clause did not explicitly
require the developer to “indemnify” or “hold harmless” the
engineering firm, the clause nonetheless acted as an indemnity and
— 26 —
hold-harmless provision because it applied to “any and all claims by
third parties and shift[ed] all liability above the fee for services to
Lanier no matter the origin of the claim or who is at fault.” Id. at
207-08 (2) (punctuation omitted).
Here by contrast, the one-year limitation does not authorize
BPG to recover from Omstead damages that BPG has incurred
because of a third-party claim arising from BGP’s sole negligence.
The one-year limitation does not “shift liability” from BPG to
Omstead: Omstead is not being made to pay for the damages that
BPG owes a third party. Nor does the limitation “absolve” BPG from
liability. See HOLD HARMLESS, Black’s Law Dictionary, 11th ed.
Instead, the limitation only requires Omstead to “not file a legal
action” after one year from the inspection, permitting suit to be filed
against BPG within the one-year period—and thus the possibility
that BPG incur “responsibility” for damage arising from the
inspection. See Lanier, 284 Ga. at 209-10 (1).
For these reasons, we conclude that the one-year limitation
does not violate OCGA § 13-8-2 (b) and is not void as against public
— 27 —
policy. 12
Judgment affirmed. All the Justices concur, except Pinson, J., disqualified.
12 Omstead also contends, in passing, that the one-year limitation violates OCGA § 13-8-2 (c), which applies to contracts or agreements “in . . . engineering, architectural, or land surveying services” and requiring one party to “indemnify, hold harmless, insure, or defend” another. Even if we assume that the Inspection Agreement is the type of agreement covered by OCGA § 138-2 (c), we conclude, for the same reasons as above, that the one-year limitation is not an indemnity or a hold-harmless provision and thus does not violate OCGA § 13-8-2 (c).
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PETERSON, Presiding Justice, concurring dubitante.
I concur in the decision of the Court because it is a faithful
application of our precedent. But I do so dubitante because I cannot
kick the nagging sense that there’s something missing from the law.
Footnote 6 appropriately notes that we do not address whether a
shorter limitations period would have been enforceable. During
argument, the question was put to counsel for BPG as to whether a
limitation period shorter than a year could ever be enforceable.
Counsel stated that a period of one day would be unconscionable.13
In follow-up questions, counsel acknowledged that a 30-day period
would be unconscionable, and could not identify where the line was
that rendered a limitations period too short to be enforceable.
But neither can I. And there may not be just one line; it seems
reasonable to think that the subject matter of the contract is
13 As the Court’s opinion notes, we do not consider unconscionability here
because the plaintiff did not raise it below. But it’s not clear to me that a tooshort limitations period must always be assessed under only unconscionability, rather than assessed through a public policy lens as an exculpatory clause. The effect of a too-short limitations period seems to me as not materially different from an exculpatory clause.
— 29 —
relevant to how long a period must be (during questioning, counsel
acknowledged that subject matter “may be” relevant). For example,
a sufficient limitations period for a contract for replacement of brake
pads could likely be shorter than the limitations period would need
to be for a contract for construction of underground infrastructure,
where one would expect a defect to take longer to become noticeable.
And if that’s so, a contract for building inspection (like the one at
issue here) would seem to be closer to the latter.
But these sorts of distinctions are difficult for a court to draw
in any principled manner, and I don’t see a clear legal basis under
our precedent for doing so in a way that sets the line at more than
one year in this case. And as the Court’s decision makes clear, our
precedent is best read to leave those distinctions for the legislature
to draw. For that matter, that’s a point Presiding Judge Barnes
made below in her full and special concurrence, which I agree with
to that extent. See BPG Inspection, LLC v. Omstead, 367 Ga. App.
128, 136 (883 SE2d 593) (2023) (Barnes, P.J., concurring fully and
specially).
— 30 —
In short, I don’t have a sufficient legal basis to dissent from the
Court’s conclusion that nothing in our law allows us to say that the
one-year contractual limitations period here was void for public
policy, and so I join the opinion of the Court fully. I just do so with
some unresolved questions, and thus I concur dubitante.
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