BLACKWELL, Justice.
After Mack Pitts was killed in a construction accident at Hartsfield-Jackson Atlanta International Airport, his estate and minor children sued the City of Atlanta and several contractors for breaches of contracts concerning the construction project on which Pitts had been working.
1. The record shows that a joint venture of Holder Construction Company, Manhattan Construction Company, C.D. Moody Construction Company, Inc., and Hunt Construction Group, Inc. (the "Holder-Manhattan" joint venture) contracted with the City to build an international terminal at the Airport. Holder-Manhattan subcontracted the construction work to a joint venture of Archer Western Contractors, Ltd. and Capital Contracting, Inc. (the "Archer Western-Capital" joint venture), and Archer Western-Capital subcontracted a portion of that work to A & G Trucking, Inc. In June 2007, a truck operated by A & G Trucking at the Airport struck and killed Pitts, who was employed by Archer Western Contractors to work on the construction of the international terminal. His estate and children sued A & G Trucking for wrongful death and eventually won a $5.47 million judgment, but A & G Trucking apparently could not pay the judgment.
From the inability of A & G Trucking to satisfy the judgment sprang this separate lawsuit, in which the estate and children allege that the City, Holder-Manhattan, and Archer Western-Capital owed contractual duties to ensure that A & G Trucking carried automobile liability insurance sufficient to satisfy claims up to $10 million.
From the beginning of the construction project, the City and Holder-Manhattan contemplated that Holder-Manhattan might subcontract some or all of the construction work to one or more subcontractors, and they contemplated that those subcontractors might, in turn, subcontract portions of the work to other subcontractors. To bind any subcontractors to the terms on which Holder-Manhattan had agreed to build the terminal, the City and Holder-Manhattan agreed in their contract that,
Consistent with this agreement, when Holder-Manhattan subcontracted the construction work to Archer Western-Capital, the subcontract incorporated the entirety of the contract between the City and Holder-Manhattan, and Archer Western-Capital agreed to be bound by the terms of that contract and to "assume[] toward [Holder-Manhattan] all of the duties and obligations that [Holder-Manhattan] has by [that contract] assumed toward [the City]." Archer Western-Capital also agreed to "likewise bind all of its lower tier sub-subcontractors and vendors to the obligations set forth in [its subcontract with Holder-Manhattan] and [the contract between Holder-Manhattan and the City]."
About insurance, the City and Holder-Manhattan agreed in their contract that the City would be responsible for procuring and maintaining policies to insure against certain risks and liabilities that might arise in the course of the construction project, that Holder-Manhattan and any subcontractors would be responsible for procuring and maintaining policies to insure against certain other risks and liabilities, and that, all together, these policies would provide "all reasonably necessary insurance" for the project. To procure and maintain the policies for which the City was responsible, the City and Holder-Manhattan agreed to employ a preexisting program administered by the City and known as the "Owner's Controlled Insurance Program" or "OCIP."
In an addendum to their contract, the City and Holder-Manhattan set out the specific policies that were to be procured and maintained by the City, as well as those that were to be procured and maintained by Holder-Manhattan and any subcontractors. Though its content is not limited to the policies to be
By its contract with the City, Holder-Manhattan agreed to "require each of its Subcontractors to procure and maintain during the life of any Subcontract, insurance of the type specified in [the OCIP addendum], except as otherwise agreed to by the [City]." In a somewhat redundant provision, Holder-Manhattan also agreed to "require each of its Subcontractors to procure and maintain, until the completion of the Subcontractor's work, insurance of the types and to the limits specified in [the OCIP addendum], unless such insurance requirements for the Subcontractor is expressly waived in writing by the [City] which waiver shall not be unreasonably withheld." Holder-Manhattan promised in the contract that it would not commence work on the international terminal until it had both "fulfilled all its requirements under the OCIP" and "obtained all of the [insurance specified in the OCIP addendum for which it was responsible]," and it promised that it would not permit any subcontractor to commence work until the subcontractor had done these things.
2. The Court of Appeals concluded that Pitts was an intended beneficiary of the contracts among the City, Holder-Manhattan, and Archer Western-Capital,
First, in determining the meaning of the term "all participants," the Court of Appeals appears to have failed to fully consider the context in which the term appears in the OCIP addendum. The Court of Appeals began its analysis by looking to a dictionary for the accepted definition of "participant," and that was a good place to start, inasmuch as we generally accept that contractual terms carry their ordinary meanings, OCGA § 13-2-2(2), and a dictionary is a useful tool for narrowing the range of meanings ordinarily attributed to a word. But a dictionary does not always provide a complete answer. In this case, the dictionary tells us that a "participant" is "one that participates," and "to participate" means "to have a part or share in something." See WEBSTER'S NEW COLLEGIATE DICTIONARY, p. 829 (1981). A dictionary does not, however, identify the "something" in which a "participant" has a part or shares. By necessity, that must be taken from the context in which "participant" is used. More important, the context in which a contractual term appears always must be considered in determining the meaning of the term. "[C]ontracts must be construed as a whole," State Auto Prop. & Cas. Co. v. Matty, 286 Ga. 611, 616-617(1), 690 S.E.2d 614 (2010), and "the whole contract should be looked to in arriving at the construction of any part." OCGA § 13-2-2(4). See also Murphy v. Ticor Title Ins. Co., 316 Ga.App. 97, 100(1), 729 S.E.2d 21 (2012); Triple Eagle Assoc., Inc. v. PBK, Inc., 307 Ga.App. 17, 24(2)(c), 704 S.E.2d 189 (2010); Service Merchandise Co. v. Hunter Fan Co., 274 Ga.App. 290, 295(1), 617 S.E.2d 235 (2005).
Once it ascertained the dictionary definition of "participant," the Court of Appeals determined that the reference in the OCIP addendum to "all participants" unambiguously meant all persons having a part in the construction of the international terminal. That is not an entirely unreasonable understanding of the term, although it does render the phrase that follows "participants" — "involved in the project" — somewhat redundant. See Floyd v. Floyd, 291 Ga. 605, 611, n. 8(2), 732 S.E.2d 258 (2012) ("[W]henever possible, a contract should not be construed in a manner that renders any portion of it meaningless.") (citation and punctuation omitted). But it is not the only reasonable understanding of that term. Recall that "OCIP" was used by the City and Holder-Manhattan in their contract in two different senses. "OCIP" refers in some places to the entirety of the insurance requirements set out in the OCIP addendum.
Second, even if "all participants" unambiguously includes Pitts, the Court of Appeals also appears to have drawn its conclusion about the extent to which he was an intended beneficiary of the contracts too broadly. It is settled under Georgia law that one not a party to a contract, but who is an intended beneficiary of the contract, may sue "the promisor" for its breach. OCGA § 9-2-20(b). But in the contracts at issue here, each party to those contracts — the City, Holder-Manhattan, and Archer Western-Capital — was a promisor with respect to some contractual promises and was a promisee with respect to others. And it is perfectly clear that, even if Pitts is an intended beneficiary of the "OCIP," he is not an intended beneficiary of every promise contained in the contracts. To determine the extent to which the estate and children properly may sue any one of the parties to these contracts as a "promisor," it is essential to identify the specific contractual promises, if any, of which Pitts was an intended beneficiary, and his rights as an intended beneficiary attach only to those promises. See Starrett v. Commercial Bank of Ga., 226 Ga.App. 598, 600(1), 486 S.E.2d 923 (1997) ("Notwithstanding the ultimate purpose of the agreement, individual contract provisions may be intended to benefit a stranger to the contract, thus creating a third-party beneficiary."); accord Gardner & White Consulting Svcs., Inc., 222 Ga.App. 464, 466, 474 S.E.2d 663 (1996) ("The remedies available to the beneficiary are exactly the same as would be available to him if he were a contractual promisee of the performance in question.") (emphasis supplied) (citation and punctuation omitted); Walls, Inc. v. Atlantic Realty Co., 186 Ga.App. 389, 367 S.E.2d 278 (1988) ("[A]lthough the subcontract does contain a provision whereby Walls agreed to indemnify Atlantic, Atlantic would be entitled to enforce that provision against Walls if, but only if, Atlantic is a third-party beneficiary thereof.") (emphasis supplied).
Consistent with Georgia law, courts in other jurisdictions have observed that "[s]tatus as a third-party beneficiary does not imply standing to enforce every promise within a contract, including those not made for that party's benefit." BNP Paribas Mtg. Corp. v. Bank of America, 778 F.Supp.2d 375, 415(VI) (S.D.N.Y.2011) (citation omitted). See also Civix Sunrise, GC, L.L.C. v. Sunrise Road Maintenance Assn., 997 So.2d 433, 435 (Fla.App.2008) ("Contrary to the appellees' contention, their status as third-party beneficiaries under paragraphs 3, 13, and 14 does not automatically entitle them to claim fees under paragraph 20."). To the contrary, "a third party beneficiary ... can only enforce those promises made directly for his benefit." Clark v. California Ins.
Murphy v. Allstate Ins. Co., 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584, 588 (1976) (citations omitted).
The Court of Appeals appears to have assumed that, if Pitts was an intended beneficiary as a "participant" in the construction project, he was an intended beneficiary for all purposes of every provision of the OCIP addendum, as well as other provisions of the contracts that have some relation to the provisions of the OCIP addendum. See Estate of Pitts, 312 Ga.App. at 604-605(1)(a)(i), 719 S.E.2d 7. But the statement of purpose from which the court ascertained that Pitts was a beneficiary does not say explicitly that the entire OCIP addendum, much less the entire contract, was made for his benefit. Rather, that statement provides that "[t]he purpose of the OCIP is to provide one master insurance program that provides broad coverages with high limits that will benefit all participants involved in the project." The question, again, is in what sense does the statement of purpose use the terms "OCIP" and "master insurance program." If "OCIP" and "master insurance program" refer only to the insurance to be provided by the City through OCIP, then Pitts would not necessarily be an intended beneficiary of the provisions that his estate and children seek to enforce about automobile liability insurance to be provided by a subcontractor at its own expense. And even if "OCIP" and "master insurance program" refer more generally to the entire OCIP addendum, Pitts might or might not be an intended beneficiary of provisions in the contracts not specifically related to the OCIP addendum, such as the general provision that Holder-Manhattan bind subcontractors to the terms of its contract with the City. Moreover, Pitts might or might not be an intended beneficiary for all purposes of contractual provisions contained in the OCIP addendum to the extent that those provisions explicitly state that they are to protect "participants" for certain specified purposes.
3. The Court of Appeals also appears to have erred in reaching its conclusion that the City breached its contract with Holder-Manhattan by failing to ensure that A & G Trucking carried automobile liability insurance up to $10 million. First, the court appears to have failed to separately consider the contractual obligations of each of the contracting parties. See Estate of Pitts, 312 Ga.App. at 604-605(1)(a)(i), 719 S.E.2d 7. Instead, it seems that the court conflated the City, Holder-Manhattan, and Archer Western-Capital, notwithstanding that the City and Archer Western-Capital were not even parties to the same contracts, and notwithstanding that a promise made by one contracting party is not necessarily attributable to another. For instance, the Court of Appeals determined that the contract between the City and Holder-Manhattan "set forth the responsibilities of the City and [Holder-Manhattan] regarding establishing and maintaining the [OCIP]," and it found that "[t]hese responsibilities included the duty to ensure that subcontractors of any tier complied with the minimum insurance requirements of the [OCIP addendum] before working on the construction project."
The City did promise in its contract with Holder-Manhattan to "maintain the required and necessary OCIP policies" and to "procure, pay for and administer the OCIP." The Court of Appeals mentioned these promises in its opinion, but the significance that it attributed to them is unclear. Id. at 607(1)(b), 719 S.E.2d 7. To the extent that the Court of Appeals concluded that the City failed to fulfill these obligations with respect to automobile liability insurance for A & G Trucking, it erred. These obligations plainly refer to the insurance for which the City was responsible and was to bear the expense under the OCIP addendum, but procuring and maintaining automobile liability insurance clearly was the responsibility instead of Holder-Manhattan and any subcontractors.
4. For these reasons, the decision of the Court of Appeals cannot be affirmed.
Judgment vacated and cases remanded with direction.
All the Justices concur, except HUNSTEIN, C.J., THOMPSON, P.J., and HINES, J., who dissent.
HINES, Justice, dissenting.
I respectfully dissent because contrary to the opinion of the majority, the analysis of the Court of Appeals is neither ill-reasoned nor incomplete. That Court's reversal of the trial court's grants of summary judgment to defendants — the City of Atlanta and companies associated with a construction project at the Atlanta Hartsfield-Jackson International Airport — on breach of contract claims brought by the estate of a worker killed at the construction site, was mandated by the relevant uncontroverted facts of the case and the applicable principles of Georgia contract law. See Estate of Pitts v. City of Atlanta, 312 Ga.App. 599, 719 S.E.2d 7 (2011).
The determinative issue in the litigation is whether the fatally injured worker, Pitts, was a third-party beneficiary to the contracts executed among the City, contractor, and tiers of subcontractors that outlined the rights, responsibilities, and duties of the parties involved in the construction project.
The Main Contract specified that the General Contractor, its subcontractors, and sub-subcontractors (excluding suppliers) were named insureds under the City's "Owner's Controlled Insurance Program," ("OCIP") which was made part of the contract, and cited again in a contract addendum. Contrary to what is said by the majority, there are not two separate and distinct programs referred to as "OCIP"; it is plain that at most the reference in the addendum is in conjunction with and intended to be part and parcel of the OCIP protections in order to effect its clear purpose. The stated purpose of the OCIP was to "provide one master insurance program that provides broad coverage with high limits that will benefit all participants involved in the project." The Main Contract required that the named insureds comply with all requirements of the OCIP, which explicitly and plainly provided in pertinent part:
(Emphasis in original.)
Pursuant to the Subcontract, the Subcontractor agreed to be bound by the terms of the Main Contract, to assume toward the General Contractor all duties and obligations that the General Contractor owed the City under the Main Contract, and to bind all lower tier subcontractors to the obligations set forth in the Main Contract and the Subcontract. The Subcontract expressly required the Subcontractor to maintain automobile liability insurance coverage for "[o]wned, hired and non-owned vehicles with a $10,000,000 combined single limit for bodily injury and property damage."
In order to have a viable breach of contract claim, there must be a breach of the contract at issue and resulting damages to a party who has the right to complain about the contract being violated. Canton Plaza v. Regions Bank, 315 Ga.App. 303(1), 732 S.E.2d 449 (2012). Thus, the question of the estate's standing to bring this breach of contract action is a threshold inquiry. Certainly, for a third party to have the requisite standing to enforce a contract, it must clearly appear from the contract that it was intended for the benefit of the third party. Satilla Community Service Bd. v. Satilla Health Services, 275 Ga. 805, 810(2), 573 S.E.2d 31 (2002). Thus, the fact that the third party would benefit from performance of the agreement is not in and of itself sufficient. Id. However, for the third-party beneficiary to have standing, it is not necessary that the party be specifically named in the contract, but merely that facially the contract show the contracting parties' intent to benefit the third-party. Boller v. Robert W. Woodruff Arts Center, 311 Ga.App. 693, 698(2), 716 S.E.2d 713 (2011). This focus on intent is in accord with the cardinal rule of contract construction, which is to ascertain the intention of the parties. OCGA § 13-2-3. There is no dispute that Pitts was not mentioned by name in the contracts at issue. So, the question becomes whether such intention to cover workers on the project like Pitts can be found on the face of the contracts. And, indeed it can.
As noted, the Main Contract's provision that insureds comply with the requirements of the OCIP expressly mandated that the Contractor was to purchase and maintain insurance, specifically for bodily injury in the amount of $10,000,000 per person and occurrence, for the purpose of protecting various classes of persons involved in the project ranging from the Contractor itself to "Agents, Representatives, and Employees." The fact that the provision uses the language "from claims" of the type set forth does not defeat or diminish the obvious intent to provide insurance protection for individuals who were deemed employees on the project.
In addition, as noted, the OCIP, which was part of the Main Contract and incorporated into the Subcontract, on its face explicitly and plainly stated that its purpose was to provide a "master" insurance program with "broad coverages with high limits" in order to "benefit all participants involved in the project." (Emphasis supplied.) Thus, the Court of Appeals correctly examined the term "participant," to determine whether such term also evidenced the intent to include individual workers on the construction site, like Pitts, as a beneficiary of the mandated insurance coverage.
The majority finds that the analysis of the Court of Appeals is incomplete in two respects, the first of which is its determination of the meaning of "participant" because it allegedly "appears to have failed to fully consider the context in which the word appears in the OCIP." But, that is far from the case.
In the situation in which the term "participant" in an insurance policy has not been expressly defined in the policy and has been found to be ambiguous, the appellate court has construed it with the paramount consideration being to effect the intention of the
What is more, even assuming arguendo, that the fact that the contracts do not provide an explicit definition or explanation of the critical term "participant," results in ambiguity about the term, it should be construed in accord with the explicit statement in this case of comprehensive coverage and the general principle that limitations, exceptions, and exclusions in the context of insurance coverage should be narrowly construed because when coverage is affirmatively expressed in broad promises, any limitations on coverage should be defined in clear and explicit terms. Zurich American Ins. Co. of Illinois v. Bruce, supra at 806(2), 388 S.E.2d 923.
The majority next finds fault with the analysis of the Court of Appeals on the basis that even if "`all participants' unambiguously includes Pitts, the Court of Appeals also appears to have drawn its conclusion about the extent to which he was an intended beneficiary of the contracts too broadly." The majority
As to concerns of the majority about specificity, the contracts require the City and the defendant companies to take specific actions with regard to the intended insureds, i.e., participants in the construction project, including ensuring that subcontractors of any tier complied with the minimum insurance requirements of the OCIP. Thus, there was a contractual obligation to provide the specific benefit of broad insurance coverage to "a relatively small group of intended beneficiaries," that is, those entities and individuals who were to be participants in the construction project. Plantation Pipe Line Co. v. 3-D Excavators, 160 Ga.App. 756, 758-759, 287 S.E.2d 102 (1981). Pitts was unquestionably a participant in the construction project, and thus, is an anticipated third-party beneficiary of the contracts. His beneficiary status is not altered by any language in the Subcontract expressly excluding as such beneficiaries subcontractors, sub-subcontractors or vendors because he fits none of these classifications. Nor is it diminished or defeated by the general precept that a liability claimant is not considered a third-party beneficiary of an insurance policy because the contracts at issue expressly mandate the contrary determination. City of Atlanta v. Atlantic Realty Co., 205 Ga.App. 1, 6(3), 421 S.E.2d 113 (1992) (where construction contract specified that insurance was to benefit plaintiff, plaintiff was a third-party beneficiary entitled to judgment on breach of contract claim for failing to acquire and maintain insurance).
Throughout, the majority refers to parol evidence, and implicitly chastises the Court of Appeals for incompleteness on the basis that it did not address certain arguments of the parties dependent, at least in part, on consideration of parol evidence. But, this is a case of unambiguous contract provisions and the breach thereof, and a resort to parol evidence is unwarranted and unauthorized.
The majority also incorrectly refuses to address the propriety of the Court of Appeals determination that the exclusive remedy provision of the Workers' Compensation Act ("the Act") does not bar Pitts's estate from seeking damages for breach of the contracts at issue. As explained such provision states that
OCGA § 34-9-11(a). But, this exclusive remedy does not prevent a party from pursuing an action for damages resulting from
This is precisely such a situation. The estate seeks damages, not for a physical injury as is contemplated by the Act, but rather loss of access to insurance coverage because of the defendants' alleged breach of contract. The estate is merely attempting to obtain a remedy for this injury which is distinct from the one for which it has obtained a judgment against A & G Trucking in a separate action for damages for Pitts's death from the physical injuries he sustained. See Superb Carpet Mills v. Thomason, 183 Ga.App. 554, 359 S.E.2d 370 (1987). Simply, the Act is not applicable to the estate's breach of contract action.
In sum, the focus of the majority is the found need for the resolution of questions which are irrelevant, as matters of fact or law, to the determinations necessary to decide the appeals, and thus, it inexplicably strains to return these cases to the Court of Appeals. It then orders that Court to reconsider the litigation in a manner consistent with the majority's opinion, which unfortunately, effectively directs the Court of Appeals to wander in the wilderness.
I am authorized to state that Chief Justice HUNSTEIN and Presiding Justice THOMPSON join in this dissent.
Section 13.3(7) also distinguishes between policies procured and maintained under OCIP and those procured and maintained by Holder-Manhattan and its subcontractors, providing that "[a]ll insurance coverage of the [City]'s OCIP policy shall be primary to any insurance or self-insurance program carried by [Holder-Manhattan] applicable to this Project."