Andy Frain Servs. v. Augusta Mall, LLC

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ANDY FRAIN SERVICES, INC. v. AUGUSTA MALL, LLC et al.

No. A23A0390

Court of Appeals of Georgia, Second Division

June 22, 2023

MILLER, P. J., MERCIER and HODGES, JJ.

HODGES, JUDGE.

Aubrey Adams-Knowlden sued Augusta Mall, LLC, Amy Dalton, and Andy Frain Services, Inc. ("AFS") after she sustained a gunshot wound during an altercation inside the mall. Dalton and Augusta Mall (collectively, "Augusta Mall"), in turn, filed a cross-claim against AFS seeking defense and indemnification based upon Augusta Mall's security agreement with AFS. The Superior Court of Richmond County granted Augusta Mall's motion for summary judgment on the issues of defense and indemnification, and AFS appeals,^[1] arguing that the trial court's judgment renders an impermissible advisory opinion and is based upon unresolved factual issues. For the following reasons, we affirm in part and reverse in part.

It is well-settled that "[a] de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Bell v. State Farm Mut. Auto. Ins. Co., 355 Ga.App. 82 (842 S.E.2d 530) (2020). So viewed, the record demonstrates that AFS contracted with Augusta Mall in February 2019 to provide onsite security services at the mall (the "Security Agreement").^[2] Paragraph 3 (b) of the Security Agreement defined the scope of AFS's role at Augusta Mall:

Security Functions. [AFS] personnel assigned to the Property shall be responsible for promoting a pleasant shopping atmosphere and crime prevention efforts through patrol of the Property; seeking out and providing appropriate customer service to patrons; reasonable inspection of the Property for safety hazards and enforcement of the Property's rules and regulations; appropriate response to incidents and emergencies; preliminary investigation and appropriate disposition of incidents; access control/physical security as appropriate during operating and non-operating hours; official reporting of activities, incidents, and inspection logs; and any special assignments and/or events related to the security/safety function of the Property as agreed upon by the parties.

Relevant to this appeal, Paragraph 8 (b) of the Security Agreement provided that AFS "agrees to furnish and keep in force the following insurance . . .:"

Liability Insurance. Commercial General Liability Insurance with limits of Five Million Dollars ($5,000,000) per occurrence and aggregate applying on a "per location basis" which shall contain coverage for bodily injury property damage, premises operations, completed operations contractual liability and contingent liability naming [Augusta Mall] and such other entities as [Augusta Mall] shall reasonably require from time to time as additional insureds. The foregoing insurance limits may be satisfied by any combination of primary and excess coverage.

In addition, Paragraph 8 (e) stated that:

Indemnification. [AFS] agrees that it shall defend, indemnify, and hold harmless [Augusta Mall], its respective direct and indirect parents and subsidiaries, any of its affiliated entities, successors and assigns and any current or future officer, director, employee, partner, member or agent of any of them ("Indemnitees") and the agents, officers and employees of all of the Indemnitees from and against claims, liabilities, losses, damages, actions, causes of action, or suits to the extent caused by (A) any actual or alleged negligent or grossly negligent act or omission or willful misconduct of [AFS] or its agents or employees at the Property or in connection with this Agreement or breach thereof in any way, (B) [AFS's] failure to purchase and maintain all insurance required by this Agreement and (C) negligence or willful misconduct of [AFS] or its agents or employees while operating a Security Vehicle under this Agreement. It is intended that all claims and demands, legal proceedings and lawsuits in which any party to this Agreement or additional insured under this Agreement is named or described as a defendant which alleges or describes any claim in which [AFS] or a security officer has done or has failed to do any act or thing required pursuant to this Agreement or failed to provide the Services at the Property shall be a claim tendered to, accepted by or defended by [AFS]. [Augusta Mall] shall within thirty (30) days after notice of any incident, potential claim or suit, or service of legal process, provide [AFS] . . . with written notice that an action has been brought and, in the event [AFS's] obligations of indemnification, defense and hold harmless apply, [AFS] shall, at its own expense, employ such attorneys as [AFS] may see fit to employ, and as reasonably approved by [AFS's] insurance carrier, to defend such claim or action on behalf of the Indemnitees. If [AFS] or its insurer refuses a tender of defense and/or indemnity, or if a defense is provided under any reservation of rights and [Augusta Mall] does not consent to such refusal or reservation of rights, [AFS] shall pay liquidated damages in the sum of $2,000 to [Augusta Mall] for the amount of the added internal expense incurred by the Indemnitees in dealing with the claim or action for which tender was refused or rights reserved. It is intended that this liquidated damages provision will not be triggered until such time as both [AFS] and [Augusta Mall] have determined that no defense or indemnity is owed to [AFS]. This liquidated damages provision shall be in addition to the Indemnitees' actual costs of defense, investigation, litigation, litigation management expenses for in-house counsel, costs of trial and/or settlement of the claim which are incurred by the Indemnitees which shall be billed to [AFS] as incurred until the tender is accepted without reservation. The provisions of this paragraph shall survive the termination or expiration of this Agreement and shall not be construed to provide for any indemnification which would, as a result thereof, make the provisions of this paragraph void or to reduce or eliminate any other indemnification or right which the indemnified parties have by law.

On October 3, 2020, Adams-Knowlden was working at a jewelry kiosk at Augusta Mall. At approximately 2:54 p.m. that day, four men began arguing near the kiosk. The argument quickly escalated, and two of the men - Tony Burton and Derell Little - began fighting. During the fight, Burton pulled a handgun from Little's waistband and began firing, striking Little three times. Little collapsed near the jewelry kiosk and later succumbed to his injuries. During the melee, a stray bullet struck Adams-Knowlden in the right knee.

Following the October 3 shooting, Augusta Mall tendered indemnification from Adams-Knowlden's potential claim to AFS on October 7 and 12. AFS rejected the tender, claiming that "[t]here are currently no allegations, nor implication, of negligence, misconduct, or breach of contract by or with respect to [AFS]" and that, as a result, "the indemnification or insurance obligations under the [Security] Agreement have [not] been triggered."

Thereafter, Adams-Knowlden sued Augusta Mall, Dalton,^[3] and AFS for damages resulting from the shooting. In particular, Adams-Knowlden alleged that "Defendants failed to keep its premises safe by failing to provide adequate security and safety measures to protect patrons and employees, including [Adams-Knowlden], from being harmed by criminal activity at Augusta Mall."^[4] (Emphasis supplied.) Augusta Mall answered, filed a cross-claim against AFS for defense and indemnification, and, after discovery, filed a summary judgment motion on those issues.^[5]

The trial court conducted a hearing and granted Augusta Mall's motion, finding that Adams-Knowlden's complaint included "allegations of negligence as to both Augusta Mall and AFS breaching their duties and causing her injuries." The trial court concluded that the Security Agreement imposed on AFS "a duty to defend Augusta Mall to the extent of any alleged breaches of duty by AFS" and ordered AFS "to provide a defense to Augusta Mall and . . . Dalton...." The trial court also ordered AFS "to indemnify Augusta Mall to the extent of any alleged or actual breaches of duty by AFS under Paragraph 8 (e)" and to "provide commercial general liability insurance coverage to Augusta Mall as an additional insured under Paragraph 8 (b)." This appeal follows.

1. First, AFS argues that the trial court's order granting Augusta Mall's summary judgment motion is an impermissible advisory opinion. "It is well settled that appellate courts will not consider new arguments in opposition to a motion for summary judgment raised for the first time on appeal." (Citation and punctuation omitted.) Simmons v. Universal Protection Svcs., 349 Ga.App. 374, 381 (3) (825 S.E.2d 858) (2019). As this argument was not raised in the trial court, we do not consider it here.

2. In two related enumerations of error, AFS contends that the trial court's order "relies upon unresolved facts still pending in this case." The true substance of these enumerations appears to be that Adams-Knowlden's complaint does not contain any factual allegations which implicate AFS's work at Augusta Mall and, therefore, AFS has no duty to defend or indemnify Augusta Mall. In the same vein, AFS argues that the question of its own potential negligence has not been resolved in the trial court, such that any finding as to its duty to defend or indemnify, either now or at some point in the future, is premature. In part, we agree.

Of course, our analysis begins with the Security Agreement.

[T]he cardinal rule of construction is to

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