Limitation of Liability Clause Violates Anti-Indemnity Statute

摘要

Limitation of liability clauses can be very effective tools for allocating risk among parties to a contract. But the limitation of liability clause in this case included a provision that called for all liability of the engineer to be capped, including liability to third parties for its own negligence. Given this language, the court invalidated the entire clause. Left unanswered by the court is the question of whether a limitation of liability clause that only caps liability as between the contracting parties would be permitted under the Georgia anti-indemnity statute. While the dissent implied that the court should reject such a position,8 the majority's decision seemed to focus on Planners' opportunity to look to Lanier in the event third parties brought claims against Planners. Thus the poor result for the engineer in this case may have been the result of overreaching in seeking to limit liability based on third party claims. In an ironic twist, a more limited clause, capping only claims by the developer and not third parties, may have insulated the engineer from the damage claims it now faces.