The indemnification provisions here do not explicitly cover punitive damages, so the policy does not cover punitive damages. Autumn Vista claims Davis v. Southern Exposition Management Co., 503 S.E.2d 649, 652 (Ga. Ct. App. 1998), suggests provisions indemnifying "against any and all claims for any such loss, damage or injury" can include punitive damages. (See Dkt. 69 at 4.)
At that point, the Plaintiff's legal liability and losses became certain, and its claim for indemnification thus became fit for judicial review. See Davis v. S. Exposition Mgmt. Co., 232 Ga. App. 773, 775 (1998) ("Where no funds have yet been expended, a party's right to seek indemnification has not yet actualized."); Carr v. Nodvin, 178 Ga. App. 228, 233 (1986) ("Since there are claims against Nodvin presently pending trial and no funds have been expended by him relating to these claims so as to accrue a right of indemnity against Concept, he has not incurred any 'actual legal liability' in order to assert a claim for indemnity at this point in the litigation."). Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179, 181 (1981).
Under Georgia law an indemnity claim does not arise until the payment of the settlement or judgment. Auto-Owners Insurance Co. v. Anderson, 252 Ga. App. 361, 364, 556 S.E.2d 465, 467 (2001) ("[W]here no funds have yet been expended, a party's right to seek indemnification has not yet actualized.") (quoting Davis v. Southern Exposition Management Co., 232 Ga. App. 773, 775(2), 503 S.E.2d 649 (1998)). Home Depot's Memorandum of Law, p. 15. The Georgia law delaying the "actualization" of right to indemnity until after the party seeking indemnity pays a judgment or settlement amount effectuates the policies of avoiding duplicative litigation and of preventing unjust enrichment of the party seeking indemnity that never pays a third party.
See Agulnick v. American Hosp. Supply Corp., 507 F.Supp. 135, 137 (Mass.1981) (noting “general interpretive rule in federal court that indemnity provisions will be broadly construed once the right to indemnification is established”).In its motion for reconsideration, First American cites for the first time to our opinion in Davis v. Southern Exposition Mgmt., 232 Ga.App. 773, 776–777(5), 503 S.E.2d 649 (1998), as authority authorizing its recovery of attorney fees under the indemnity agreement. In Davis, we remanded the case to the trial court for an evidentiary hearing to establish the amount of attorney fees owed under an indemnification agreement, because a portion of the fees might have been incurred in connection with claims for which no indemnity was owed.
See Agulnick v. American Hosp. Supply Corp., 507 FSupp. 135, 137 (Mass. 1981) (noting "general interpretive rule in federal court that indemnity provisions will be broadly construed once the right to indemnification is established"). In its motion for reconsideration, First American cites for the first time to our opinion in Davis v. Southern Exposition Mgmt., 232 Ga. App. 773, 776-777 (5) (503 SE2d 649) (1998), as authority authorizing its recovery of attorney fees under the indemnity agreement. In Davis, we remanded the case to the trial court for an evidentiary hearing to establish the amount of attorney fees owed under an indemnification agreement, because a portion of the fees might have been incurred in connection with claims for which no indemnity was owed.
See Hamburger v. PFM Capital Mgmt., Inc., 286 Ga.App. 382, 384–385(1) and 386–387(2), 649 S.E.2d 779 (2007) ; Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805(1), 273 S.E.2d 16 (1980). See Saiia Constr., supra at 715(1), 714 S.E.2d 3 (the period of limitation for an indemnity or statutory contribution claim begins to run when the claimant pays another to settle the claim of the other or to satisfy the judgment of the other); Davis v. Southern Exposition Mgmt. Co., 232 Ga.App. 773, 775(2), 503 S.E.2d 649 (1998) ("Where no funds have yet been expended, a party's right to seek [contractual] indemnification has not yet actualized") (citation omitted). This Court has held that "indemnity" means "reimbursement, restitution, or compensation," and Black's Law Dictionary uses a similar definition:
” (Citations omitted.) Davis v. Southern Exposition Mgmt. Co., 232 Ga.App. 773, 774(1), 503 S.E.2d 649 (1998); see also Campbell v. Moody, 242 Ga.App. 643, 644–645(1), 529 S.E.2d 923 (2000). This enumeration of error is without merit.
And the period of limitation for a claim of breach of contract begins to run when the contract is breached, Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 384-385 (1) ( 649 SE2d 779) (2007), which, in the case of a contractual duty to indemnify, is the moment at which the party owing the duty refuses to indemnify the other party for amounts that the latter has paid to settle the claim of another or to satisfy the judgment of another. See Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (2) ( 503 SE2d 649) (1998) ("Where no funds have yet been expended, a party's right to seek [contractual] indemnification has not yet actualized."). Here, the record reflects that Saiia settled the counterclaim of the owner and general contractor on April 16, 2010, pursuant to an agreement that obligated it to release its lien and claims against the owner and general contractor, perform corrective work on the property, and pay approximately $183,000 to the general contractor.
Moreover, such an interpretation is consistent with avoiding a potentially unfair application of the statute of repose in construction cases such as this. Nor is it contradicted by settled law which provides that a contribution plaintiff cannot actually collect until the underlying judgment has been paid. See Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (2) ( 503 SE2d 649) (1998) ("Where no funds have yet been expended, a party's right to seek indemnification has not yet actualized.") (citation omitted). Accordingly, the trial court's order dismissing the 2008 case was erroneous and must be reversed.
Although the corporation was found in default shortly after Pazur was granted leave to add Belcher as a party, the judgment awarding money damages was not entered until months after the second amended complaint was filed against her. And this Court has previously held that a trial court's entry of a default judgment as to the issue of liability only which leaves the issue of damages to be adjudicated is not a "final judgment" since it does not dispose of the entire controversy between the parties. Griffin v. Rutland, 259 Ga. App. 846, 847-848 (2) ( 578 SE2d 540) (2003); Rapid Taxi Co. v. Broughton, 244 Ga. App. 427, 428 (1) ( 535 SE2d 780) (2000); Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 774 ( 503 SE2d 649) (1998). Moreover, other courts have disallowed attempts to enforce a judgment against an alleged alter ego defendant by adding that defendant as a party to the action in which the judgment against the corporation was obtained.