Glazer v. Crescent Wallcoverings, Inc. , 215 Ga. App. 492 ( 1994 )

Beasley, Presiding Judge,

dissenting.

I concur in Division 1 of the majority opinion, as it is clear from the contract that the intention of the parties was only to shift the risk of loss to insurers of the respective parties, which shift was dependent on the party’s purchase of insurance coverage. This does not at all constitute an agreement to indemnify or hold harmless a potential tortfeasor for a possible future tort, which is against the public policy expressed in OCGA § 13-8-2 (b).

However, this agreement between the landlord and tenant does not affect the contribution rights of third parties under OCGA § 51-12-32. They gave no consideration for the relinquishment of such rights against a joint tortfeasor. They have a cause of action which is not barred by the contract of others. The contract does not eliminate the status of the landlord as a tortfeasor but rather only bars an action by the tenant for the tort; the tenant received consideration when it granted the landlord this benefit.

Marchman & Sons v. Nelson, 251 Ga. 475, 477 (306 SE2d 290) (1983), demands this result. As taught in that case, “Our statute recognizes the continuing existence of the right of contribution against a joint tortfeasor who has been released. It recognizes the existence of the right of contribution where there is no judgment at all in the underlying suit, and even where there is no underlying suit filed. Thus, the right of contribution arises out of, but exists separately from, the rights present in the underlying suit.” (Footnote omitted.) The Supreme Court then held that the dismissal with prejudice of the underlying suit “is not a bar to an action for contribution by one joint tortfeasor against another joint tortfeasor.” Id. at 478. It follows that where a tortfeasor is protected from legal liability by an agreement to seek damages only from the tortfeasor’s insurer, so that there can be no judgment or even valid suit against the tortfeasor, the joint tortfeasor is not precluded from contribution. The latter’s statutory right is not cut off by the landlord’s separate contractual protection from assertion by the tenant of its right of action.

The result of the majority’s opinion is that the joint tortfeasor will be liable for the damage, if any, caused by the landlord.

For this reason, I respectfully dissent.