Plantation Pipe Line Company v. 3-D Excavators, Inc., 160 Ga. App. 756, 287 S.E.2d 102 (1981)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 62422

Parts: MCMURRAY, Presiding Judge.

Linked as:

Summary

Judgment reversed. Quillian, C. J., and Pope, J., concur.

Summary

Judgment reversed. Quillian, C. J., and Pope, J., concur.

Text

Edward T. Floyd, for appellant.

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 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 SE2d 265); Pioneer Neon Supply Co. v. Johnson & Johnson Construction Co., 95 Ga. App. 565 (98 SE2d 156); and Jones v. Abraham, 109 Ga. App. 622 (137 SE2d 92). Defendant relying upon Backus v. Chilivis, 236 Ga. 500, 502 (II) (224 SE2d 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, 137 Ga. App. 227, 230 (2) (b), supra. Nor do the facts of the case sub judice fall within the rule enunciated in Backus v. Chilivis, 236 Ga. 500, supra, and Miree v. United States of America, 242 Ga. 126, 136 (3), supra, as the intended third party beneficiaries of the contract in the case sub judice do not encompass the unreasonably broad group of beneficiaries which were held to have no standing in those cases. Here the plaintiff is a member of a relatively small group of intended beneficiaries, that is, those individuals whose obstructions and utilities were in such proximity to the construction work to be completed under the contract as to be reasonably afforded the contractual protection incorporated in the contract in question here. The trial court erred in granting partial summary judgment in favor of defendant as to plaintiff's Count 3, and in denying partial summary judgment in favor of plaintiff solely on the issue of liability based on breach of the contract as shown in Count 3 of plaintiff's complaint.

Lawrence J. Hogan, for appellee.

1981